Let’s turn the clock back 50 years to the days before Title VII of the Civil Rights Act of 1964. Sex discrimination was a constant, and sexual harassment was so prevalent that it wasn’t yet a term of art. The notion that a woman had the right to a workplace free from sexist comments or unequal treatment was nothing short of bizarre. Work life as portrayed on Mad Men was pretty much the norm.
Do you know how gender discrimination found its way into Title VII? The bill was originally designed to cover discrimination based on race and national origin. Opponents allowed gender to be added as a protected class, thinking it would kill the bill. Much to their surprise, Title VII passed―sexual harassment prohibitions and all.
In the late 1960s, American society had a tough time adjusting to the dictates of the new law. But over the decades, equal, nonharassing treatment became the new norm―not simply because we became better natured but because the Equal Employment Opportunity Commission (EEOC) and juries exacted a high penalty from those who didn’t comply.
Gender equality isn’t yet a full reality, as women still earn about 73 percent of what men do and hold about 15 percent of high-level corporate and professional positions. But if this cultural change had been left solely to corporate management to implement without external enforcement, we wouldn’t be nearly as far along the road to equality as we are.
A lot of good women
But from all reports, in and out of the military, America’s armed forces seem to be a half century behind the private sector in preventing, addressing, and remedying sexual harassment. The issue is multifaceted. First, sexual harassment is prevalent. Over 26,000 women in the military experienced sexual harassment last year, but fewer than one in seven victims reported it. Then, on average, fewer than one in 10 of those reported claims went to a hearing.
Rather, widespread reports show that the most common response to a sexual harassment claim is retaliation. Because the alleged victim usually suffers the worst consequences of a claim, sexual harassment goes largely unreported.
A chief culprit in the system is the “chain of command.” Reports of harassment generally must be made to one’s direct supervisor, even if that supervisor committed or condoned the harassing conduct. The power of the command chain permeates the process―even the finding of a court- martial can be overruled by a commanding officer.
Taking all of this into account, it’s no surprise that sexual harassment in the military becomes a bigger problem every year. Now lots of people are talking about it. It was the centerpiece of President Barack Obama’s commencement speech to the U.S. Naval Academy and Secretary of Defense Chuck Hagel’s commencement speech to the graduating cadets at West Point.
Congress also has become heavily involved in this issue, with California Senator Barbara Boxer and Bay Area Congresswoman Jackie Speier leading the way. Speier has introduced three bills designed to provide independent investigation and remediation of sexual harassment complaints outside the chain of command. Par for the course, she has been the subject of nasty e- mails and Facebook postings in response to her position.
We can’t handle the truth?
Of course, circumstances surrounding the military are different from those in business life. At times, military officers must be given broad latitude to use their resources as they see fit to get the important job done. Even in the private sector, outside oversight of our activities can be an unwarranted intrusion―and the same is true in spades for much of what the armed services are confronted with.
At the same time, how can we retain a system that demonizes and punishes the victim to the point that legitimate complaints are quashed and retaliation is the norm? To balance both concerns, the pending congressional proposals don’t refer these claims to an outside agency like the EEOC but rather to an independent entity within the military but outside the chain of command. Even that modest proposal is drawing significant fire.
Can sexual harassment in the military be combated without civilian review? That is a serious question without an obvious answer. 
Mark Schickman is a partner at Freeland Cooper & Foreman LLP in San Francisco. He may be contacted at schickman@freelandlaw.com.