The Sexual-Harassment Victims Who Can’t Get to Court

A year into #MeToo, a stunningly large segment of the workforce isn’t covered by federal law.

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Lucy Nicholson / Reuters

One year into the #MeToo movement, there’s an underreported barrier to supporting victims: Many workers are still not legally protected from sexual harassment.

Federal law—specifically, Title VII of the 1964 Civil Rights Act—recognizes two categories of workplace harassment. There’s quid pro quo sexual harassment, when a boss, supervisor, or anyone in a position of authority with hiring or firing abilities pressures a subordinate for sexual favors in exchange for a promotion or raise, or to avoid dismissal. And there’s a hostile work environment created by severe or pervasive harassment, which could include repeated lewd comments and off-color jokes, unwanted sexual advances, or even sexual assault.

But even if one of these descriptions fits your experience to a T, you might not get your day in court.

Let’s say you work as a day laborer at a family farm. In that case, you’re out of luck on a few counts. Title VII does not apply to workers in small businesses, defined as those with fewer than 15 employees. Agricultural and domestic workers are also excluded, as they are from many other civil and labor rights and benefits such as Social Security. Under the Supreme Court decision Murray v. Principal Financial Group, Inc., moreover, contractors are not considered “employees,” and are responsible for their own working conditions.

Add together some 23,000,000 contractors, the nation’s 470,000 agricultural workers, 1,550,000 janitors and building cleaners, 790,000 housekeepers and maids, and 690,000 personal-care aides, and at least 18 percent of the total employed workforce isn’t protected by Title VII. (Those numbers come from the U.S. Census Bureau and analysis by researchers at the National Bureau of Economic Research.)

Restrictions don’t end there.

If you are, say, a salaried public-school teacher or a lawyer or banker, and thus theoretically protected under Title VII, you have only 180 days in some states to file a claim with the Equal Employment Opportunity Commission (EEOC), the government body responsible for adjudicating discrimination and harassment claims. Should the EEOC choose not to take the case—it doesn’t take most cases—you have a mere 90 days to find an attorney and file a suit.

But without realizing it, you may have signed an arbitration and confidentiality agreement, which would force you to resolve your complaint within the workplace, bar you from taking legal action, and prevent you from discussing the issue. In May, the Supreme Court upheld the right of your employer to require arbitration clauses in your employment contract.

Yet another potential problem: You may not be able to afford an attorney, and if you’re filing civil rather than criminal charges, the state doesn’t have to provide one for you.

(There’s no right to an attorney in civil court.)

Finally, while reporting sexual harassment is emotionally and logistically difficult to begin with, the barriers to justice are even higher if you’re a non-U.S. citizen. As Human Rights Watch describes it, you get caught in “the crosshairs of harsh immigration laws and exploitive industries.” It doesn’t matter if you’re the victim of a crime or reporting one—U.S. Immigration and Customs Enforcement can detain you under the Secure Communities Program. Thanks to the Violence Against Women Act, survivors of sexual violence can apply for a U Visa when reporting a crime. ICE, however, has discretion in how and whether it grants you that visa.

There’s more attention paid to sexual harassment now than ever before, but for many victims, the U.S. legal system doesn’t have you covered.