Women have long endured sexist, offensive and discriminatory workplaces. While progressive legislation and protective case law have induced employers to try to create more equitable work environments, sex-based harassment allegations have stayed relatively consistent over the past decade. For instance, the U.S. Equal Employment Opportunity Commission (EEOC) has received approximately 12,000 sex-based harassment charges annually for the past six years, of which between 6,800 and 7,900 include sexual harassment allegations. Many people do not distinguish between sex-based and sexual harassment, and courts generally use the label of sexual harassment to describe either or both.  The point is that harassment of women can take many forms besides sexual overtures and unwanted touching, and encompasses any conduct that manifests resentment or hostility toward women in the workplace, such as name-calling, slurs, negative stereotyping, and threatening or hostile acts. The EEOC numbers demonstrate that hostility to women in the workplace is manifested in a variety of ways, and often does not include any overtly sexual dimension.

Trouble in the Tech Sector

One industry in which female employees have reported rampant and escalating sexual and sex-based harassment, as well as sex discrimination, is the male-dominated technology industry. Problems in that industry were brought to the forefront following the recent viral blogpost, “Reflecting On One Very, Very Strange Year At Uber,” by Susan Fowler, a former site reliability engineer with Uber. After reporting that her manager propositioned her for sex on her first day with his team, Ms. Fowler was told by both human resources and upper management that her manager was a “high performer” and “they wouldn’t feel comfortable punishing him for what was probably just an innocent mistake on his part.” Ms. Fowler has become one of many women who have come forward with complaints of toxic, harassing work environments in the tech sector.  A recent article in the April 2017 issue of The Atlantic, “Why Is Silicon Valley So Awful to Women?” includes results from a survey of women in the tech industry called the “Elephant in the Valley” in which 90% of respondents had witnessed sexist behavior at conferences and company meetings and 60% had fended off unwanted sexual advances. Why are these problems so pervasive in tech companies?

Start-Ups Play Fast and Loose with HR Issues and Women are in the Minority

The answer is multi-faceted – for instance, many start-ups have built their empires on explicitly flouting state and city regulations, and employment laws, and explicitly coining themselves as “disruptive technologies,” which often goes in tandem with ignoring traditional human resources policies and discrimination laws. Fowler’s blog highlighted typical HR missteps, including the “high performer” excuse for inaction, and the extraordinary advice that if she stayed on his team and he retaliated against her for complaining about him, HR could do nothing about it. [link to prior blog on the Uber/HR problem.

Alternatively, the answer may be rooted in the fact that only 9 percent of entrepreneurs in venture capital-financed, high-growth technology start-ups are women and that women remain the minority in these workplaces.  For instance, Travis Kalanick, the chief executive of Uber, said that 15.1 percent of Uber’s engineering, product management, and scientist roles were filled by women, and that those numbers had not changed substantively over the past year.

Not unrelated, Mr. Kalanick and other executives at tech start-ups have also encouraged work cultures that feature excessive drinking and partying. The Atlantic article notes that tech start-ups are frequently run by brotherhoods of young men, often friends or roommates, straight out of college.  These young men create Hobbesian environments in which workers are pitted against one another and they commonly look the other way when top performers break rules, and even laws, in the course of their success – all of which necessarily leads to unchecked misogyny and sexual harassment.  For instance, in a 2014 article, Mr. Kalanick jokingly told the author that if there were a start up created offering “women on demand” it would be called “Boob-er.”   Given the inhospitable work environments at tech start-ups, it is not likely that the number of women will increase, and may well decrease.  The Atlantic article cites a Center for Talent Innovation report that concludes that women leave jobs in the tech sector, not because they dislike the work, but because of workplace conditions and undermining behavior from managers.  Until such conditions change, tech companies will not succeed in attracting more women to work in this industry.

Women May Be Reluctant to Report

One avenue to change is bringing public attention to the problem.  In recent years, the number of public discrimination and harassment claims against tech giants has skyrocketed. However, the issues are still under-reported and are especially acute in start-ups without Human Resources departments or that rely extensively on personal contacts and networks to find employees, whom executives are less likely to terminate or discipline for such offenses. Female employees are vulnerable in these environments and may be reluctant to report harassment and abuse when faced with retaliatory punishment such as demotions or termination.

However, there are a number of existing legal frameworks – notably Title VII of the Civil Rights Act – that can provide female employees with remedies for sexual harassment and discrimination. Title VII prohibits employment discrimination based on race, color, religion, sex or national origin. It long has been established that sexual harassment is considered a form of discrimination based on sex, and such claims therefore are cognizable under Title VII. Sexual assault is similarly considered a prohibited form of sex discrimination. Plaintiffs may also establish discrimination based on sex in the form of a hostile work environment if they can demonstrate that the environment is both subjectively and objectively offensive. Successful Title VII plaintiffs filing sex discrimination claims can be awarded injunctive relief and can receive compensatory and punitive damages, as well as attorneys’ fees. However, Title VII’s remedies can only begin to be accessed upon the reporting of any discrimination to a local EEOC office within 180 (or sometimes 300) days.

As one of the greatest hurdles to reporting sexual harassment is a lack of knowledge about workplace rights and reporting procedures, the rise in complaints against tech start-ups will hopefully encourage more employees who have had to endure these practices without complaint to identify that this type of conduct is unlawful and is not something that must be tolerated in the workplace.