How governments handle sex assault complaints

September 25, 2018

 

The Me Too movement has brought an increased awareness of sexual harassment and sexual assault. But the problem is not confined to the habitat of just the famous. So we took a look at how local governments are handling both sexual harassment policies and resolution of complaints when they do arise. 

 

Recently, Les Moonves, the chairman and CEO of CBS, was fired in the wake of sexual assault and harassment allegations. Days later, Jeff Fager, the head of CBS' '60 Minutes' signature investigative  news show, was removed amid accusations of inappropriate conduct and unwanted touching. Months ago, we saw the downfall of producer Harvey Weinstein for accusations of sexual harassment, sexual assault and rape, and television news men Charlie Rose and Matt Lauer for allegations of sexual harassment and sexual assault. 

 

As we all know, we are living in the Me Too era, a widespread and growing movement against sexual harassment and sexual assault. The term gained momentum around noon on October 15, 2017, when actress Alyssa Milano tweeted “Me too,” indicating that she, too, had been sexually harassed at some point in her career. By the end of the day, the term had been used more than 200,000 times, and tweeted more than 500,000 times by October 16. The hashtag #Metoo was used by more than 4.7 million people in 12 million posts on Facebook during just the first 24 hours, with the platform reporting that 45 percent of users in the United States had a friend who had posted using the term. While the majority of those tweeting and posting were women, including many notable actresses, politicians and celebrities, there were also men who reported they had been the victims of harassment and abuse.

 

And then there were the victims of Michigan State University and former United States gymnastics Dr. Larry Nasser – hundreds of them, as it turns out. Soon after #Metoo began spreading all over social media in the fall of 2017, several allegations from a 2016 Indianapolis Star article resurfaced in the gymnastic industry, and Nasser was called out via #Metoo for sexually assaulting gymnasts as young as six years old during what he had claimed were osteopathic medical “treatments.” Actually, they were heinous acts of sexual assault upon hundreds of young girls, with no medical basis. During his sentencing for life in prison, more than 150 women came forward, telling and retelling their stories of how they had been abused and violated by a man they had trusted and relied upon.

 

The swarm that has exploded from the Weinstein, Rose, Lauer and Nasser allegations have not flamed out, as the recent CBS situations clearly demonstrate. And for everyday individuals, those whose names are anonymous, their situations are suddenly all too familiar – and relevant. They too, are, or have been, the victims of sexual harassment, sexual assault or sexual discrimination in their jobs. As high profile individuals find the courage, ability and support to speak up, so do people working in offices, in police and fire departments, as waitresses or waiters, in factories, in university settings, politics and political office – wherever one person is in power and another is subordinate.

 

And it is illegal.

 

While the Me Too movement, and its attendant awareness, has brought sexual harassment and discrimination to the forefront of consciousness, there has also come the knowledge and recognition that they are a form of discrimination that has been unlawful under Title VII of the Civil Rights Act of 1964, which applies to all companies in the country with 15 or more employees, including federal, state and local governments. Today, governments, large and small, have policies detailing how it is not permissible and employee protections.

 

Sexual harassment is defined as bullying or coercion of a sexual nature and the unwelcome or inappropriate promise of some kind of reward in exchange for sexual favors. Sexual harassment can include behavior that ranges from mild improprieties and inappropriate touching or speech to outright sexual abuse or sexual assault – and everything in between. A casual “You look nice today,” in the office doesn't count. Someone grabbing your breast or purposely touching your buttocks does. Sexual harassment is a form of illegal employment discrimination, because it can make you feel like your work place is not a safe zone.

 

At a place of employment, harassment may be considered illegal when it is frequent or so severe that it creates a hostile or offensive work environment, or when it results in an adverse employment decision for the person who is on the receiving end of the harassment – where they feel they have to quit, they're fired or demoted from their position, or when they feel threatened.

 

“I would define sexual harassment as a form of sexual discrimination,” said Mary Engelman, deputy director to the Michigan Civil Rights Commission and the executive director for the Michigan Women's Commission. “It is unwelcome sexual advancement or sexual conversation. Sexual discrimination is unlawful discrimination based on sex. Sex can be female, male – whatever they identify themselves as.

 

“Any instance of sexual harassment is so personal, it's never forgotten,” she pointed out.

 

Engelman noted that sexual discrimination and sexual harassment are not new phenomena. “It's more at the forefront because of the Me Too movement,” she acknowledged. “I think there's been sexual harassment between men and women forever. As time has gone on, there has been sexual and gender discrimination, which is where if I'm born a female but identify as something else, it's more acceptable socially, but there may be issues in the workplace.”

 

She is clear to point out that while women appear to be the primary victims of sexual harassment, they are definitely not the only ones. 

 

“Sexual harassment can happen between men and women, women to men, between women to women, and men to men. Any and all sexes,” Engelman emphasized. “It's about intimidation, pressure and power. You can hear a woman (in an office or work setting) say something disparaging about another woman – and that can be sexual discrimination because for someone that can be threatening.”

 

The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency which challenges harassment and retaliation around the country. They have stated sexual harassment policy as: “It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include 'sexual harassment' or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

 

“Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer,” according to the EEOC.

 

In Michigan, the Elliott-Larsen Civil Rights Act of 1976 provides the framework and precedent for many laws and policies, which protects individuals in Michigan on the basis of “religion, race, color, national origin, age, sex, height, weight, familial status, or marital status in employment, housing, education, and access to public accommodations.”

 

Because the EEOC policy has more 'teeth' than the Elliott-Larsen Act, often victims are advised to file suit in federal court, rather than Michigan court, in order to obtain the results, or settlement, they are seeking.

 

“One in three employees will be sexually harassed, with 50 to 80 percent of the sexual harassment taking place at work,” Engelman, of Michigan Civil Rights Commission, said. “Only 25 percent will tell anyone – and only five percent will file a grievance. This is a big deal – but only five percent report their harassment.”

 

The Michigan Civil Rights Commission's statistics are consistent with figures published by the EEOC in a 2016 report, which noted that although 25 to 80 percent of women stated that they have experienced sexual harassment at work, few ever report the incidents. The majority of women said the reason they failed to report the incidents was their fear of reprisals. A 2017 poll, at the height of Me Too, conducted by ABC News and The Washington Post, found that 54 percent of women reported receiving “unwanted and inappropriate” sexual advances, with 95 percent stating that the behavior goes unpunished. 

 

And if no one is told, nothing can be done. Or said another way, the perpetrator keeps on harassing other victims.

 

In 2018, through August 30, there were 52 formal employment-related cases in Michigan filed by women according to the Michigan Civil Rights Commission, and 11 filed by men. Two cases were filed against local units of government, but due to confidentiality policies and lawsuits, Engelman could not say who the local units of government were. Of the 63 total filed complaints, eight resulted in settlements during the investigation process, while 20 were found to have insufficient evidence. Others are ongoing.

 

Those numbers compare to 48 total complaints filed by women in 2017; 49 complaints filed by women in 2016; 52 in 2015; and 64 in 2014, prior to the Me Too movement. In 2017, there were nine cases filed by men; eight filed by men in 2016; 16 filed by men in 2015; and 18 filed in 2014. 

 

In each year, a majority of cases were dismissed due to insufficient evidence, with eight cases settled during the investigation process in 2017; three in 2016; eight in 2015; and 16 in 2014.

 

In 2017, there were no complaints filed against local units of government, and just one in 2016. In 2015, there were two complaints filed against local units of government, and five complaints filed in 2014. 

 

“I don't know if there's greater awareness, but it's more at the forefront because of the Me Too movement,” Engelman said of the increase in complaints for the first eight months of 2018.

 

While Engelman did not reveal the case, one of the 2018 complaints – which became a criminal case – was likely one where a northern Michigan doctor, Jonathon Robertson, with offices in Traverse City and Marquette – was charged with prescribing narcotics to female patients in exchange for sexual favors. Investigators believe two women were sexually assaulted by Robertson, who is accused of sexually penetrating the women under the guise of medical treatment. 

 

It's rare for a case to come before a prosecutor as a criminal case. Most are a complaint, and some become a civil case. 

 

The Human Resources Director of Rochester Hills, Pamela Gordon, reported there were two complaints against their municipality, one in 2017, and one in 2018, where a city parks employee alerted human resources of alleged harassment from a member of the public. No settlement was involved in either case, it was reported.

 

Rochester has a non-discrimination policy which includes a sexual harassment policy, noting “The city prohibits sexual harassment of any kind by any person. Sexual harassment includes unwelcome sexual advances, unwelcome requests for sexual favors, or other unwelcome requests for sexual favors, or other unwelcome verbal or physical conduct or communication of a sexual nature...A prompt investigation of all complaints will be undertaken. An employee will not be subject to punishment for reporting harassment or participating in a harassment investigation.”

 

Rochester City Manager Blaine Wing reported there has been no reports of any harassment in the city in at least the last five years. “In April, our employees attended anti-harassment training, lead by the city’s labor firm, Keller Thoma. Attorney Gouri G. Sashital was the trainer for all of our sessions this year,” Wing said in an email.

 

Birmingham has not had any complaints in any department in at least the last five years. Their policy states, in part, “Unwelcome sexual advances, requests for sexual favors or other verbal, physical or visual conduct relating to an individual's religion, race, color, national origin, age, sex, height, weight, marital status or handicap constitutes harassment when: Submission to the conduct is made either an explicit or implicit condition of employment; Submission to or rejection of the conduct is used as the basis for an employment decision affecting the harassed employee; or the harassment substantially interferes with an employee's work performance; creates an intimidating, hostile or offensive work environment; or it otherwise adversely affects an individual's employment opportunities.”

 

Dennis VanDeLaar, human resources director for the city of Royal Oak, said that while they have a sexual harassment policy, it is under review “and will likely be updated in the very near future.” He was not aware of any recent complaints against any Royal Oak employees.

 

Royal Oak's sexual harassment policy and procedure policy is currently more of a statement – “Employees are to read this policy statement carefully and to immediately report suspected cases of sexual harassment to the city manager or the human resources director...the city reaffirms its policy that all employees have a right to expect a working environment free of unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct or communication of a sexual nature.”

 

The Troy Fire Department, which has its own sexual, ethnic, racial and religious harassment policy separate from the city of Troy, has had seven harassment complaints since 2014. The policy states, “All persons who violate this policy will be subjected to disciplinary procedures up to and including discharge.” 

 

The city of Troy, which first issued their harassment policy in December 1988, and last revised it in 2010, is detailed in noting “Workplace harassment and discrimination can take many forms. It may consist of, but is not limited to, vulgarity, requests, gestures, written material, jokes, cartoons, pictures, posters, email jokes or statements, pranks, intimidation, physical assaults or contact, or violence.” The city has a strict policy of non-retaliation, and a thorough, detailed review and documentation process.

 

Doug Simon, business director for the Michigan House of Representatives, said the state legislature has had a harassment policy that dates back about 20 years. “It does prevent harassment and guide us. We believe it's a strong policy, and about a year ago, we began reviewing it again, to make it stronger, along with our training materials.”

 

He noted the business office is non-partisan. “Our office worked with both Republican and Democratic leadership, as well as the Progressive Women's Caucus, and we partnered in this review, and there were some additions to our policy. Going back 20 years, our policy has always required any new employee and any newly elected member to take our harassment seminar on preventing sexual harassment in the work place training. We changed that requirement, and added to that, so that now, all members and staff, everyone, needs to go through that once a year. It reinforces the training and keeps it fresh.

 

“That was a major change. We also added a clarifying change that specified our reporting channels,” Simon said. “We better illustrated our reporting channels if you are a victim and how that would flow from reporting to resolution.”

 

He noted that prior to the changes, the policy and training were heavily weighted towards prevention. “Today, there is greater emphasis on how to handle it, what to do if it happens, and how to report it. I think it's more balanced that way.”

 

He said there's been a clarification of what is harassment, “so that it's understood from all parties.”

 

He would not provide the policy, noting the state legislature is not subject to the Freedom of Information Act (FOIA).  

 

In the last 10 years or so, there has only been one instance of a sexual harassment claim against a  representative, Simon said, and it was settled. Former Rep. Brian Banks (D-Harper Woods) was sued for sexual harassment by his legislative aide, Tramaine Cotton, in 2013. According to Simon, the House settled with Cotton in October 2015, paying him $8,450 from appropriated funds. Banks later resigned from office over another offense.

 

Despite some misconceptions, the infamous “Courser/Gamrat” case, where two state representatives who were having an affair and had their staffers cover it up, was never a case of sexual harassment, but of misconduct in office, misuse of state resources and wrongful termination of staffers.

 

Amber McCann, spokesperson for Senate Majority Leader Arlan Meekof, responded that in the last five years in the state Senate, “there has been one claim of sexual harassment/discrimination made. The Senate retained an outside law firm to investigate the claim and it was found to have no merit.” She did not elaborate.

 

Kristy Slosson, with human resources in Oakland County, said there has been only one sexual harassment complaint in the last five years in all departments, and it is a current case, in 2018, at probate court, with the outcome pending.

 

According to the EEOC, there are two types of sexual harassment – “Quid Pro Quo,” which is very specific “tit for tat” kind of harassment, where an employee benefits such as raises, promotions and better working conditions are directly tied to compliance with sexual advances, or capitulation to sexual demands, by someone in a supervisory capacity or who otherwise has the authority to grant such benefits. 

 

A “hostile work environment” is the other kind of sexual harassment, which is defined as severe or pervasive conduct which unreasonably interferes with an employee's ability to work or creates an intimidating, hostile, or otherwise offensive environment. According to Bloomfield Township's policy of non-discrimination and anti-harassment, “A hostile work environment can be created by anyone in the work environment, including supervisors, other employees, or third parties (such as vendors, commission/board members, or elected officials). Hostile work environment harassment may consist of sexually charged language, unwelcome sexual materials, or unwelcome physical contact or physical proximity as a regular part of the work environment. Texts, emails, cartoons or posters of a sexual nature, vulgar or lewd comments or jokes, or unwanted touching may all constitute a hostile work environment. The use of sexual stereotypes may also create a hostile work environment.”

 

Bloomfield Township's policy continues, elaborating verbal sexual harassment as including innuendoes, suggestive comments, sexual jokes, sexual propositions, lewd remarks and threats, requests for any type of sexual favor, including repeated and unwelcome requests for dates, and verbal abuse or “joking.” Non-verbal sexual harassment can include the distribution or display of any written or graphic material, including calendars, posters and cartoons that are sexually suggestive or show hostility toward an individual or group because of sex. They can also include suggestive or insulting sounds, leering, staring, tickling, whistling, obscene tweets and Internet postings, or other forms of communication that are sexual in nature and offensive.

 

Physical harassment includes any and all unwelcome, unwanted and unconsented to physical contact, which can include touching, pinching, patting, brushing up against, hugging, cornering, kissing and fondling, all the way up to assault and battery.

 

Jim Fett, an employment attorney with Fett & Fields PC in Pinckney, who specializes in discrimination cases, “I tried my first harassment case in 1995, against the city of Ann Arbor, where several employees sued a supervisor for sexual harassment and retaliation. We won – and I haven't seen a change (in harassment cases) since.” Ann Arbor eventually reached a settlement in the case. Fett said that while as an attorney he sees more hostile work environment cases than quid pro quo situations, they often go hand-in-hand.

 

“There are cases where there are both,” he noted. “Someone who is demanding sex for a promotion or penalizing an employee with a demotion is quite capable of doing all of the other things that would give rise to a hostile work environment.” 

 

On the facts page on their website, the EEOC states, “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.” They advise the victim to tell the abuser to stop.

 

In other words, if there's a question if it's appropriate behavior or not – just don't do it.

 

But it's very important for someone who believes they have been a victim of abuse to tell their harasser to stop – and to report it.

 

“It's a big deal for people to file,” Engelman emphasized. “What happens when you go to get another job? That is reality.

 

“It's 85 percent (of women who experience some form of harassment). But then there are women who never report,” she said. “Women who are accomplished and successful women. By reporting, it gives women who don't have a voice feel like they have a voice. Like those girls with Nassar and MSU,” it allowed more and more girls and women to feel comfortable coming forward.

 

“The thing that is amazing to me, after doing this for 32 years, and fielding about 1,000 inquiries for representation, a lot could be headed off if the person said no to the harasser or reported it to the person up the chain,” Fett said. “People are afraid to say no because they're afraid of being isolated and retaliated against in the work place – but the reality is, today there is more awareness in the work place. More people are aware because they've seen it and know about a situation. But they're afraid to say to the person, their supervisor or harasser – you're making me uncomfortable, stop.

 

“You make a complaint, and if it is plausible, it is illegal to retaliate, even if it turns out to not be a genuine violation of sexual harassment law,” he noted. 

 

Andrew Abood, of the Abood Law Firm in E. Lansing and Birmingham, who represented some of the victims in the Michigan State University Nassar case, noted that many victims are hesitant to tell anyone “because with sexual harassment, more so than any other case, there is a stigma.”

 

An additional reason of hesitancy to report for many, especially for those at a lower pay rung, “people cannot not have a job – so if they quit, it's a problem. They have to have a job,” Abood said. “They may quit and file a (sexual harassment) complaint, but if the damages are minimal, an attorney may not be willing to take it. It makes it difficult to go after it. As an attorney, you need a really special case to make it worthwhile. Also, if you file a case today, it can take months to come to court. Do plaintiffs have the wherewithal, the mindset, to sit it out for two years? For most people, it's better have a settlement.”

 

Fett explained that to be a viable claim, by law, “a hostile work environment has to be pervasive and constant and severe – not just a random rude comment, or something like 'You look cute today.' A hostile work environment is different to an attorney – it's very specific under the law. It's an environment based on an illegal factor. If you don't complain to someone in management, to someone who can put an end to the harassment, you don't have a viable complaint against the company. You can end up suing the individual, but good luck collecting.”

 

Abood acknowledged that in some offices and work places, there is a “generational difference in how people are perceived – not only in their language but in their expectations. You do see a more 'old school' attitude from the old guys. It's important for everyone to recognize they're wrongful acts and to rectify them.

 

“Everyone's human,” Abood pointed out, “things can happen. But it's important to fix and rectify things.”

 

Fett noted that often “a company never even knows it's happening.” They can take what he explains as “prompt remedial action” – where the company jumps right on the situation and eliminates the environment or stops the unwelcome sexual advances (the quid pro quo situation), “even if it has been going on for a long time, and they've been unaware of it, but they take action as soon as they find out – they're off the hook,” he explained. “The biggest exception is where there has been so much harassment and so much abuse that they should have known about it, even if no formal complaint has been filed.”

 

Fett noted a case that went before the Sixth Circuit Court of Appeals “where they dressed down the local court for dismissing a case because there had been so much racial banter, graffiti on restroom walls, and the N-word frequently used, that the company had responsibility to head off these issues, and they were found liable even if they hadn't had a formal case filed.”

 

The Bloomfield Township policy spells it right out – “An employee who reports a complaint or violation internally to the township is protected from retaliation, both by law and this policy. Additionally, any township employee who reports a violation or suspected violation of applicable state or federal law to the Michigan Department of Civil Rights, Equal Employment Opportunity Commission, or any authority, whether inside or outside of the township, or appears as a witness in the investigation of a complaint, shall not be subjected to retaliation or other adverse employment consequence.”

 

Fett noted that cities, townships and other municipalities “are just as likely to be a defendant as anyone  else. In the private sector, they often have savvier HR training. The Feds have savvy HR training, but in local governments, you really see some horrendous cases.”

 

Steve Kaplan, West Bloomfield Township Supervisor, whose policy is specific in detailing different categories of sexual harassment, noted they haven't had any sexual harassment complaints since 2001. He said at that time it was between two females in the building/environment area, and no charges were brought, and there was no financial settlement.

 

Bloomfield Township Clerk Jan Roncelli said that, as far as she knows, there has not been a case of sexual harassment reported from any department in Bloomfield Township. Bloomfield Township has separate non-discrimination and anti-harassment policies for its fire and police departments, with the police department adding that its policy also applies to “our citizens and vendors...concerning any individual employee; concerning any member of the public; concerning any group or segment of our society (for example any ethnic, racial or religious group such as African Americans, Jews, Muslims, Chaldeans, females, etc.).” 

 

They also expressly prohibit ethnic comments, slurs or conduct, as well as “Conduct that denigrates or shows hostility or aversion to a person because of his/her gender and creates an intimidating, hostile or offensive work environment.”

 

Police departments, with their traditional male, “macho” environments, have been ripe for sexual harassment and discrimination situations. In 2002, Fett sued the Dearborn Police Department for sexual harassment and assault, representing a female police officer who claimed she had been punished for speaking out when a fellow officer sexually harassed her at a department-run gun range. 

 

In her lawsuit against the city, Dearborn Police Lt. Karen Ehlert claimed members of the police department turned against her when she complained in 1999 that a male officer had dropped his trousers and made sexual remarks in front of her. The two were alone at the department gun range when the alleged incident occurred. The case was settled for an undisclosed amount of money.

 

Fett again sued the Dearborn Police Department in 2008 for sexual harassment, which in a lawsuit he wrote, “The Dearborn Police Department workforce is best described as a gold ole boys' club where many of the males consider it a monumental affront that women are allowed on their force. Consequently, these males engage in mean-spirited and many times life-threatening harassment of women. If a woman has the audacity to complain, the DPD, particularly Chief, whitewashes any incident and promptly retaliates against the troublemakers, whom the administration calls the 'evil ones.' Women comprise less than 10 percent of the DPD ranks and have risen above the rank of lieutenant. Plaintiff is a sergeant. Continuously throughout her employment, the males have created not just a hostile work environment, but a lethal one as well. They have done this by refusing to provide back-up and obstructing plaintiff's radio requests (called 'keying over') for same.”

 

Throughout the legal brief, on behalf of several female Dearborn officers, Fett describes in detail vile and vulgar language used against the officers, such as referring to them as “the 'yeast team' because it had the most females; when two women ride in a squad car, the males refer to the cars as 'pussy cars;'” and references to rape and oral sex. 

 

There is also detailed discrimination, retaliation, and situations which left the female officers in dangerous positions. “She specifically reported the shunning, the abusive computer messaging, the keying over and the refusal to provide back up. She specifically … were targeting her because of her  gender...To add insult to injury, Defendant is contesting Plaintiff's worker compensation claim.” Fett aid the case was resolved in 2008, and the department no longer tolerates the behavior.

 

Whether as a result of the Me Too movement, or a recognition of their wrongs, on September 4, 2018, the state of Michigan settled a lawsuit on behalf of female prison guards who said their rights were being violated by mandatory overtime and other restrictions at the the Huron Valley women's prison in Washtenaw County, the only women's prison in the state. The state agreed to pay about $750,000 and lift a freeze on female officers transferring to other prisons. 

 

The deal settled a lawsuit by the U.S. Justice Department, which argued that Michigan can't lock workers in or out of a job just because of their sex.

 

“I've represented a lot of women working in male businesses – the trades, cops – pretty much, they're going to be a good case. I've represented a lot of police officers, firefighters, plumbers. I like these cases, because when I was in high school, I'd look at these varsity athletes who would use their power and prestige to get the girls, and abuse them – it's that same abuse of power,” Fett said.  ­

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