Publication Date
10-1-2025
Abstract
“To be heard as complaining is not to be heard. To hear someone as complaining is an effective way of dismissing someone. You do not have to listen to the content of what she is saying if she is just complaining . . . .” –Sara Ahmed, Complaint! This Article reveals how workplace sexual harassment policies may appear legally compliant but actually create significant barriers to reporting. The non-reporting of harassment eviscerates the protections the policies are supposed to provide employees by creating a loophole for employers to escape liability. A critical review of these policies under procedural and testimonial injustice frameworks uncovers that they are (1) inaccessible due to the extensive use of legal jargon that make them difficult to understand, (2) overly complex and procedurally burdensome due to duties to gather evidence and short reporting timelines, and (3) biased against the credibility of people who report sexual harassment by requiring “good faith” reports. For employees with jobs in low-wage industries, such as restaurant and retail—where workers are predominantly women, people of color, or immigrants—the policies compound the barriers to reporting. This Article adds a missing ingredient to a rich area of scholarship by analyzing reporting protocols and procedures to demonstrate how the policies themselves impede, rather than facilitate, the reporting of sexual harassment—highlighting how the challenges are even greater for workers in low-wage industries. This Article calls for courts to conduct more rigorous reviews of workplace harassment policies—rather than accepting them at face value—before granting employers an affirmative defense when their employees do not avail themselves of reporting policies. It also proposes mechanisms to incentivize employers to create policies that will encourage employees to report harassment and develop practices that will give employees a voice in the process.
First Page
149
Recommended Citation
Sherley Cruz, The Protection Illusion: Sexual Harassment Policies and Low-Wage Workers, 103 Denv. L. Rev. 149 (2025).