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New York state records of private-sector sexual harassment offer only a glimpse of the problem: Experts

State probers found nearly 1,200 sexual harassment complaints from private-sector workers to be valid from 2010 to 2017.

New York state rejected almost 2,400 sexual harassment

New York state rejected almost 2,400 sexual harassment claims by private-sector workers from 2010 to 2017, for reasons including lack of probable cause and missed filing deadlines.

Albany - New York State found nearly 1,200 sexual harassment complaints from private-sector workers to be valid from 2010 to 2017, a number that academic researchers and government experts say may represent only a sliver of the problem.

By comparison, the state rejected nearly twice as many claims, for reasons including lack of probable cause and missed filing deadlines, according to records from the state Division of Human Rights, which investigates sexual harassment claims filed with the state.

The records give a glimpse of the extent of sexual harassment in private workplaces statewide. But it’s only a glimpse, according to experts, because an undetermined number of actions are bought in the courts or through complaints to company human resources offices and no centralized database is kept of all cases.

Many more people never file complaints with any authority.

“The majority of people who describe experiencing sexual harassment that had some sort of negative impact upon them — not something they regarded as trivial — did not report the incident,” said John Pryor, a distinguished professor emeritus of psychology at Illinois State University who has studied sexual harassment nationwide for more than 30 years.

A 2016 study by the U.S. Equal Employment Opportunity Commission found that 25 percent to 85 percent of women experienced sex-based harassment on the job, although few reported it.

“The least common response to harassment is to take some formal action — either to report the harassment internally or file a formal legal complaint, the EEOC said. “Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct.”

Of the 3,745 formal complaints of sexual harassment filed with the state Human Rights Division since 2010, officials agreed with 1,178, according to documents Newsday obtained under the state Freedom of Information Law.

Hearing officers determined that 1,857 had “no probable cause.” Another 304 were dismissed because they were being handled in courts, or referred there because of some probable cause.

The trend is similar nationwide. Of the 11,364 cases investigated by the U.S. Equal Employment Opportunity Commission in 2011, the most recent year for which records were published, 53 percent were found to have “no reasonable cause.” More than 83 percent of all federal cases were filed by women.

The state Division of Human Rights said its record of cases resulting in findings of probable cause is consistent with the EEOC’s national findings.

They their experience is similar to the federal Equal Employment Opportunity Commission, where about half the cases end in a finding of not to have reasonable cause.

“That is a problem, proving what was done and what was said,” said Rachelle Dickerson, spokeswoman for the Division of Human Rights. “It’s not ‘beyond a reasonable doubt,’ but there must be a witness or evidence.”

Legal experts warned against equating rejections with false reports because of the difficulty in proving claims.

Pryor said he was “somewhat surprised by the high percentage of complaints that were dismissed as having ‘no probable cause,’” but added, “I caution you against equating ‘no probable cause’ with ‘false claim,’” he said.

In Albany, Gov. Andrew M. Cuomo and legislative leaders are negotiating expansive sexual harassment legislation to help victims. The leaders hope to have new laws adopted as part of the state budget, which is due by April 1.

In a previous story on sexual harassment cases in state government in New York, Newsday found the state paid out settlements of more than $10 million in 88 cases.

The Human Rights Division records show the complaint process is slow, and resolutions vary widely.

The average processing time for all discrimination cases, including those involving race and housing, to decisions after hearings in 2016-17 was 398 days, according to the division’s annual report.

The state can require employers to pay a victim for lost wages and emotional suffering and mental anguish, and can impose civil penalties. The state can also require a company to create or change sexual harassment polices.

There are, however, no overall tallies of civil penalties, which can be as high as $50,000, or for payouts for mental anguish or lost wages.

Records show the actual settlement amounts vary widely — from as little as $7,500 for mental anguish for a dispatcher at a trucking firm, to $50,000 for mental anguish and $75,000 in civil fines against a restaurant.

The EEOC reported that penalties and other monetary awards assessed nationwide by federal and local agencies to victims of sexual harassment in the private and public sectors totaled $52.3 million in 2011.

State Human Rights Division hearing decisions may be appealed to the state Supreme Court Appellate Division.

The Human Rights Division declined to provide the number of cases that were appealed or their dispositions. An extensive search of Appellate Division records revealed few appeals of state sexual harassment decisions, and most were upheld by appellate judges.

In deciding for complainants, the Human Rights Division, citing court decisions, requires the abuse to be “pervasive.”

“The [federal] courts have declared the conduct has to be either severe or pervasive to constitute a legal claim for sexual harassment,” said Sandra Sperino, associate dean of faculty and a law professor at the University of Cincinnati College of Law.

“So, conduct that would make most reasonable people uncomfortable does not always align with the courts’ standard for the sexual harassment claim,” she said.

Sperino said judges appear to base their views on 1990s cases, “even though they seem very out of touch with what is reasonable in today’s work environment.”

HOW THE STATE COMPLAINT SYSTEM WORKS

  • An individual has one year after experiencing sexual harassment to file a complaint with the Division of Human Rights. The complaint can be requested in person and filed at one of the division’s 12 offices. The complaint must be signed before a notary public and mailed.
  • An investigator determines if there is probable cause, which advances the case to a hearing.
  • An administrative law judge conducts hearings, with each side presenting evidence. The state provides an attorney free of charge to those who make formal complaints; complainants also may bring their own attorneys.
  • The law judge issues a recommendation to the commissioner of the Division of Human Rights. The commissioner reviews the allegation and evidence and issues a commissioner’s order.
  • Findings for the worker can include back pay, compensation for mental anguish, changes in policy and a penalty assessed against the employer.
  • Any appeal of an order must be made within 60 days. It will be heard by the State Supreme Court’s Appellate Division.

Source: New York State Division of Human Rights

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