Sexual Harassment Laws Need to Change

Sexual Harassment Time Frames for Filing

Sexual harassment laws need to change to protect victims of sexual harassment.  Currently, victims have a very short time frame for filing claims.  The statute of limitations is only 180 calendar days for filing with the Equal Employment Opportunity Commission (“ EEOC”) or 300 calendar days if a state agency enforces a law that prohibits sexual harassment on the same basis. These limited time frames include weekends and holidays in the calculation. The time frame for filing with the Massachusetts Commission Against Discrimination(“MCAD”) is 300 days.

How short is this time frame compared to other types of claims? If you have a personal injury lawsuit in Massachusetts, you have three full years to file a claim. If you have a breach of contract claim, you have at least six full years.  Why should the law treat discrimination and sexual harassment claims differently? How does this limited time for filing impact plaintiffs and defendants?  This needs to change.

Why Are Sexual Harassment and Employment Discrimination Claims Treated Differently?

The typical argument for a short statute of limitations is that claims should be brought while the memories of witnesses are fresh and evidence is available for a trial. If you bring a claim in Massachusetts against a doctor for malpractice, however, you have three full years to bring a claim. If you bring a personal injury claim in Massachusetts, you also have the benefit of a three year statute of limitations.

If you bring a claim in Massachusetts against a supervisor in the workplace for sexual harassment, you have only 300 days – or less than a year. The evidence in personal injury or malpractice cases, such as witness testimony, documents and electronic evidence is similar to the evidence in employment litigation and malpractice litigation. It’s difficult to see why sexual harassment claims should have a shorter time frame for filing.

Victims of Sexual Harassment Need a Longer Time Frame to Consider Claims

Sexual Harassment Cases Take Time to Prepare

Victims of discrimination need longer time frames to consider their options.  They need to meet with an attorney and consider filing claims. This is particularly true where companies often take many weeks, if not months, to investigate  claims. During this short 300-day time frame, many victims of discrimination need therapy or medical treatment.  They are turning to primary care physicians, therapists and psychiatrists to deal with the very real effects of sexual harassment. They need the time to seek out appropriate care for the anxiety, depression and other medical conditions.

Many Sexual Harassment Victims Want to Job Hunt to Avoid Retaliation

In addition, victims of workplace discrimination are often job hunting.  Many want to leave a hostile workplace before filing a claim.  Employees may be concerned about retaliation. This is particularly true where a supervisor or highly placed executive is the harasser. It can take months to find another job. In the meantime, the clock is unfortunately ticking on the short 300-day claim. The EEOC on its website addressed this issue as follows: “Regardless of how much time you have to file, it is best to file as soon as you have decided that is what you would like to do.” Given the short time frame to file, a harassment victim’s claims may be time barred if he or she does not preserve all claims by filing.

Filing a claim takes consideration, reflection and a legal assessment.  It can take time to meet with lawyers, evaluate the facts and prepare appropriate filings. The short 300-day time for filing often doesn’t give complainants sufficient time to consider their options, meet with physicians, therapists and psychiatrists and prepare their case with legal counsel.

Short Time Frames for Sexual Harassment Claims Favor Serial Harassers

In addition, many victims don’t realize that they are dealing with a serial sexual harasser. Victims may not feel empowered to come forward until they learn that they are not alone.  They may realize too late that they are not the only victim.  This appears to be the case for the women who allege powerful producer Harvey Weinstein sexually harassed or sexually assaulted them. In this way, a short statute of limitations favors serial harassers, who may continue to harass others as the statute of limitations expire on individual claims.

How Longer Time Frames for Sexual Harassment Claims Would Benefit Employers and Resolution of Cases

The short shelf life of claims often does not leave sufficient time for employees to approach their employers and determine whether the matter can be resolved before filing. The EEOC and the MCAD are both committed to seeing whether cases can be resolved through an informal negotiation process.  This is known as mediation or conciliation. The limited time frame for filing often does not allow victims sufficient time to propose informal negotiations.  As the EEOC states, complainants are encouraged to file “as soon as they have decided that is what [they] would like to do.” Given the short statute of limitations, victims must act quickly to preserve their claims. A longer time frame for filing would allow employers and employees sufficient time to negotiate the matter. Early resolution of claims would reduce the burden on administrative agencies such as the EEOC and the MCAD.  These agencies handle a large volume of complaints.

The Case for Extending Time Frames for Filing Sexual Harassment Claims

In summary, the statute of limitations for filing sexual harassment claims in Massachusetts should be extended to three years for the following reasons:

1. Complainants need time to consider their options, meet with their attorney and medical providers and prepare their claims.
2. Many victims are concerned about retaliation and do not feel comfortable reporting the conduct while they are employed. This is particularly true where the harasser is a supervisor or executive in the company. These employees may need time to leave the company in order to avoid retaliation and feel comfortable bringing a claim.
3. Short time frames favor serial harassers, who may continue to victimize other employees as individual claims expire. By the time employees realize that the offender is a serial harasser, their individual claims may be time barred.
4. A longer time frame would allow employees who have suffered sexual harassment to consider approaching their employers to resolve the claim prior to filing. An extended time frame may lead to the informal resolution of claims and lessen the burden on administrative agencies which are over burdened with a volume of complaints.
5. There is no reason to differentiate between personal injury, malpractice and discrimination claims in terms of the statute of limitations. Sexual harassment victims need the full protection of the law, and a minimum of three years to file claims.

Maura Greene is an employment lawyer who handles sexual harassment and other employment discrimination cases. She is a 2017 Super Lawyer in the area of employment and is AV Preeminent-rated by Martindale- Hubbell, which is the highest rating an individual lawyer may achieve. She may be reached at the Law Office of Maura Greene, LLC at 617-936-1580 or at [email protected].