As of late, a wave of sexual harassment allegations has dominated the news. Historically, women have endured sexist, offensive and discriminatory workplaces, but it was “hush hush” up until recently. While progressive legislation and protective case law have induced employers to try to create more equitable work environments, sex-based harassment allegations have stayed consistent over the past decade.

Today, many people do not distinguish between sex-based and sexual harassment, and courts tend to use the label of sexual harassment to describe either or both. The 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.

Brian Markovitz, principal in the labor and employment and civil litigation practice groups at Joseph, Greenwald & Laake, sat down with Inside Counsel to shed some important light on this timely topic. In his practice, Markovitz focuses primarily on helping victims who have suffered severe injustice in the workplace. He also represents individuals throughout Maryland, the Washington, D.C., area and across the country in complex employment litigation and appellate matters involving wrongful termination, retaliation by employers in response to reporting fraud or misconduct and discrimination on the basis of race, gender, age and sexual orientation.

“Traditionally, men have been in positions of power in the workplace so it is difficult to stand up to them,” he said. “Additionally, people are vilified for speaking out against sexist, offensive and discriminatory behavior. One need only look to the women who are accusing Roy Moore to see this.”

According to Markovitz, case law protects employers by presenting complicated tests employees must meet to prove even a prima facie case of harassment. For example, one element of sexual harassment is that the harassment must be subjectively offensive to the person harassed. This requires a court to delve immediately into the mental state of the victim and whether he or she had an appropriate reaction, resulting in a misplaced focus on the victim's reaction rather than the harasser's behavior.

“The people that do not distinguish between sex-based and sexual harassment do not understand the law. Sex-based harassment is more akin to other discrimination such as race or religion. It is the equivalent of not liking someone because of an inherent characteristic,” he explained. “Sexual harassment is bullying and attempting to humiliate someone through sex-based actions. Sexual harassment is almost always about power.”

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. These areas of the law can be complicated, per Markovitz, as few harassers are blatant because they know what they are doing is wrong so they conceal their actions. So it's often about a harasser's prevailing negative attitudes toward women in the workplace and power over them.

So how can this be improved?

“By raising better sons,” he advised. “I find that training does very little to help. Harassers know what they are doing is wrong but don't care. So, it is important for companies to fire people, no matter who they are, when it is shown that they harassed somebody. Since harassment is about power, it is important for companies to take that power away.”

Amanda G. Ciccatelli is a Freelance Journalist for Corporate Counsel and InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more.