“Congratulations, you five ladies no longer have to pretend to be attracted to Harvey Weinstein,” Academy Awards host Seth MacFarlane flippantly told the 2013 best actress nominees. Yet for those on the receiving end – believed to be at least one in four women in the workplace* – the reality of sexual harassers wielding power to get their way isn’t at all funny.  And four years later, Mr. Weinstein is no longer laughing either.

*Per a comprehensive 2016 study by the US Equal Employment Opportunity Commission (EEOC) a government agency responsible for processing the sexual harassment complaints that do get reported.  Additionally, 10% of men in the workplace claim they too have experienced sexual harassment.

Meanwhile, the media’s dishing dirt and stirring whodunnit debates on scintillating sex scandals from Hollywood’s public outing of Henry Weinstein’s “open secret” to high government office official’s antics, prompting resignations from Uber’s CEO and even an National Public Radio (NPR) Senior Vice President of News.  For the rest of us, however, the real question arises, what exactly is sexual harassment — particularly in the traditional workplace?

Truth be told, there is much room for rumination between unquestionable innocence and obviously out-of-line, indecent behavior. ** While it’s easy to label the guilty parties as “bad actors” there may be reasonable reasons why some unwitting perpetrators cross the line.  At the same time, the shame and fear from sexual harassment creates a toxic workplace for individuals and costs corporations millions.

Sexual Harassment Defined

What are clear markers that the workplace behavior happening has strayed into the realm of sexual harassment?  A Portland Oregon specialist in helping sexual abuse victims, attorney Gilion Dumas of Dumas Law Group, LLC, emphasizes:

It’s important to make the distinction between sexual assault and sexual harassment. Sexual assault is unwanted sexual touching, anything from groping to kissing to rape. Grey areas exist because of those words “unwanted” and “sexual” in front of touching:

  • Unwanted: Did the recipient consent? Did the consent continue or did the recipient withdraw consent at some point? Would a reasonable person in those circumstances understand that the recipient no longer consented?
  • Sexual: Did the toucher have a sexual intent? That is, was it a grope or just an accidental graze? With overtly sexual conduct, this is easy, but most (all?) women can think of a suspicious hand on the fanny or arm across the chest incident they’ve questioned over the years.

These are the same gray areas that exist when prosecuting sexual assault crimes outside the workplace.

Sexual harassment, on the other hand, traditionally falls into two categories.

  • Quid pro quo, which is the classic idea that the harasser offers some kind of job-related reward in exchange for sexual favors, or retaliates in a job-related way for the withdrawal of previously-granted sexual favors. This is the Hollywood casting couch; the raise for sleeping with the boss; or the bad job review when you stop sleeping with the boss.
  • Hostile work environment. That’s everything from dirty jokes to Harvey Weinstein showering in front of you.

For more from Gilion Dumas on this topic, click here.

Melanie Rydalch, HR Director, explains that according to her company, Basic American Foods policy, harassment includes but is not limited to

  1. Unwanted sexual advances;
  2. Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters;
  3. Verbal conduct making or using derogatory comments, epithets, slurs, and jokes;
  4. Verbal sexual advances or propositions;
  5. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes, or invitations;
  6. Physical conduct: touching, assault, impeding or blocking movement;
  7. Unreasonably interfering with work performance or creating an otherwise offensive working environment;
  8. Threats and demands to submit to sexual requests in order to keep a job or avoid some other loss, and offers of job benefits in return for sexual favors; or
  9. Retaliation or reprisal for having reported or threatened to report harassment.

HR:  Preventative Policy and Process

Basic American Foods addresses its sexual harassment policies in onboarding, and offers annual training and in-depth online training for all leaders.  Basic American Foods Sexual harassment policy, Rydalch asserts, incidents “should be reported to a supervisor, manager or HR so it can be appropriately investigated and addressed.  An investigation of all complaints will be undertaken immediately. In addition, the Company will take action to protect the complaining employee and to prevent retaliation. After appropriate investigation, any person who has been found by the Company to have harassed an employee will be subject to appropriate sanctions. Sanctions may range from a warning in the employee’s file up to and including termination.”

A Plant HR Manager at a well-known consumer packaged goods company adds, “My feeling is most companies are going to be fairly aggressive in their discipline to avoid any issues.  It is pretty much a no tolerance atmosphere.”  Those who believe that are experiencing workplace harassment “can report it to any manager, HR, or the site-leader, or call a special 800 number.  I believe the actual harassment that takes place is reported in the high 90% range at our location.  Cases are few, and depending on previous issues, severity of the offense, and prior corrective action taken, suspension to full termination is most likely if fault is found.”

If your company doesn’t have a clearly defined, up-to-date written policy and procedure, one can be tailor-made for your company from a consultant.  Amy McGeachy, PHR certified Human Resources Consultant of McGeachy Consulting notes that good policies make defining sexual harassment, along with how to address harassment if or when it happens, “crystal clear.”  One best practice that she recommends for her clients is to implement harassment prevention training during the onboarding process. One of her clients addresses this by having each new hire watch an online harassment prevention video that culminates by the new hire taking a 10-question quiz. This lets new hires know right away that harassment of any kinds is not tolerated in your business. Amy says, “In light of recent events, I think this is a best practice that businesses should take to remind and educate employees.”

Sexual Harassment:  Gray Areas & How Opinions Differ

Dr. Denise Cummins, Association of Psychological Science author and researcher highlighted sex and generational differences in terms of tolerance in her interview on National Public Radio’s PRI Takeaway program.

  • Millennial women are less tolerant of sexual harassment that other generations and men of their generation.
  • A recent Harris survey indicated that two-thirds of millennial men don’t think repeated unwanted invitations to drinks, dinner, or dates constitutes sexual harassment, but virtually all the millennial women do.
  • Typically, today’s millennial man was never instructed that before sex, being sure your partner wants to have sex, is important.
  • In general, women are better at reading social signals than men, for example, facial recognition… and thus men are more likely to miss cues that their actions are considered inappropriate.
  • Women in the boomer generations are more likely than a millennial to shrug off or downplay sexual harassment.

“Even if something is ‘innocent’ it could still violate our sexual harassment policy,” concurs and cautions Melanie Rydalch.  “For example, repeatedly asking someone out could be sexual harassment.  An inappropriate joke will likely result in some form of discipline even if it is ‘innocent.’”

Amy McGeachy gives this example: “I one time had a situation where a supervisor sexually harassed an employee (physical touching) because he thought that they were starting a relationship. She did not have a love interest in this person. The result was that she was sexually harassed at work. She reported it right away, we investigated, and he was terminated.”

Tips to Reduce the Likelihood of Sexual Harassment

While no matter what, some sexual workplace harassment is unavoidable.  Gilion Dumas offers some practical advice to try to nip prospective workplace sexual harassment in the bud.

Boundaries! Know and defend your boundaries. If you think about ahead of time what you will not tolerate and how you will respond if you encounter improper behavior, you will be ready to fend off harassment before it develops. For example:

  • Practice saying, “Knock it off!” Say it out loud, firmly but not angrily. The idea is to be ready to say it to a work colleague, or even a client or boss. You don’t want to end the professional relationship, just stop inappropriate conduct. If you practice, you will be ready to say it when faced with a wandering hand or sexual proposition. “Knock it off! That’s not appropriate in a professional setting,” sends a clear but polite message.
  • Create some personal policies and follow them. You will avoid a lot of arguments by simply having a policy against going to a coworker’s hotel room, going out for drinks alone with a professional contact, not sharing a cab after dinner with only one other person, or whatever. You might get pushback, but people are less likely to argue against a policy than a list of ad hoc reasons.
  • Don’t sabotage your own boundaries. We are all human, and no one acts perfectly in the workplace any more than we act perfectly anywhere else. But if we are going to hold sexual harassers responsible for their bad conduct, we have to take responsibility for our own. And under the law, a jury in a civil case will compare conduct, whether you think that is fair or not. So drink in moderation when in a professional setting. Think twice about that office romance. And by all means, if the behavior continues, follow your company’s sexual harassment policies.

Sexually Harassed?  Assess Your Options

Despite all the recent up swell of sexual harassment claims and protective policies, historically, the EEOC reports that 75% of employees who spoke out against workplace mistreatment faced some form of retaliation.

Thus, before reporting sexual harassment to HR, your supervisor or management, Maya Raghu, Director of Workplace Equality and Senior Council at the National Women’s Law Center suggests:

  • Determine what is it that you want. For many, it’s just the harassment to stop.
  • Find out what the company’s policy and procedure is regarding sexual harassment (keeping in mind what’s expected is often not what happens).
  • Talk through the situation and your options with people you trust (family, friends, colleagues). You might find you are not the only person this has happened to, empowering to know you’re not alone and making this up.
  • Document everything – comments, conduct, and observations – in detailed notes. Keep emails, text messages, social media posts; they may become important evidence.
  • Recognize when to report is a balancing act — too soon and you won’t be taken seriously, too late and there will be pushback that earlier reporting could have kept the harassment from escalating.

Ted Talk presenter Gretchen Carlson alleges that companies requiring arbitration when sexual harassment is reported put the victims at greater risk while making it easier for future violators by keeping violations quiet.

What If You Or Someone in Your Company is Falsely Accused of Sexual Harassment?

In a nutshell, The Balance outlines these steps

  1. Cooperate with the investigation.
  2. Apologize, even if you didn’t do it.
  3. Confess to what you did that may have been unintentionally construed as harassment.
  4. Hire an attorney.
  5. Once the case is decided…
    • if the accusation is proven false, the accuser may be forced to leave.
    • if you lose, you may consider asking for a transfer but may be forced to tough it out or leave.

Attorney Carolyn D. Walker, Portland Oregon-based labor and employment expert and Partner at STOEL RIVES LLP concurs that cooperation is essential, but provides another perspective on how the falsely accused should approach the situation:

Regardless of whether you believe the accusation is false, employers are obligated to conduct an investigation into harassment allegations. The alleged harasser will be obligated to cooperate in the investigation by submitting to an interview and providing relevant documentation, etc.  The best way to proceed is to show a willingness and candor regarding the process.  While it’s understandable that when feeling falsely accused, a person may experience anger and bewilderment, becoming overly defensive and indignant does not help and will likely hurt your case.

Behavior the accuser perceives as “sexual harassment” may be different than what the accused considers “sexual harassment.” It’s important for the accused to get a clear understanding of the specific behavior that is being alleged so that he or she can accurately address and respond to the allegations regarding the actual behavior rather than to the “sexual harassment” label.

Sometimes employees accused of harassment will try to seek out witnesses who can support the accused’s position the alleged behavior did not take place.  This can backfire, as it can be viewed as an attempt to influence witnesses, potentially undermining the accused’s credibility in the eyes of the investigator.  Finally, the accused (and anyone involved in the investigation) must by all means avoid engaging in any type of behavior that could be viewed as retaliatory toward either the accuser or any witnesses.  Even if the harassment claim is ultimately unsubstantiated, engaging in retaliatory behavior can subject the retaliator to workplace discipline — an entirely separate legally actionable claim.

Sexual Harassment Is Being Taken More Seriously Than Before

Despite the landmark 1991 disappointment of the retention of Supreme Court Justice Clarence Thomas (ironically himself a former employee of the EEOC), even in today’s dubious climate of what is and is not considered respectful behavior there is growing hope.  Harvey Weinstein just became the second person ever to be kicked out of the Film Academy.  From an environment reputedly a bastion for sexual harassment and undermining of women, Uber’s CEO was not only fired for sexual harassment, he left amidst a wave of 20 other Uber execs swept out on the same tide.  That story is slated to become the subject of an upcoming movie.

Cause of the Shift

“Safety in numbers” is beginning to shift the tide of what our expectations are for what is and what is not appropriate behavior in the workplace and demand accountability for what is not.  Men play as or more an important a role as women.  As Bill White, prosecuting attorney in sexual harassment class action suit against a mining company in the 2005 movie, North Country, proclaims: “What are you supposed to do when the ones with all the power are hurting those with none? … Stand up and tell the truth. You stand up for your friends. You stand up even when you’re all alone. You stand up.”

Gilion Dumas observes the headlines with a mix of hope, skepticism and pragmatism… “We see the tide of public opinion turning, for sure. Whether today’s news stories about misbehaving celebrities, executives, and politicians actually affects the law one way or the other is too soon to tell.”

How Can We End Sexual Harassment at Work?

Journalist and former Miss America Gretchen Carlson recently gave a stirring Ted Talk on ending workplace sexual harassment; click here to hear her ideas about it.  She concluded her talk with an intriguing challenge to companies…. “Hire back all those women whose careers were lost because of some random jerk.”

What Next?

This is a big topic, and this post is just one small attempt to illuminate a few key points….  How will this information influence your thoughts, conversations and actions going forward?  We are at a crossroads…. Where we go next is up to all of us.

 

**This article should not be considered legal sexual harassment policy advice. Dorigan & Associates strongly recommends employers consult an attorney specializing in employment policy to develop and monitor sexual harassment policy and protocol.  This article should not be considered legal sexual harassment advice for anyone experiencing workplace sexual harassment.  Dorigan & Associates strongly recommends following your company sexual harassment policy and/or seek appropriate legal advice. 

 

 

Could You Be Accused of Sexual Harassment?

Connie Dorigan, Founder and Director of Recruiting, sees the food processing industry as the link between good living and good people. She’s the west coast’s most experienced and trusted food processing recruiter. She also provides Executive and Career Coaching and lots of free job search tools. Once you’ve connected with Connie, you’ll always be connected.

© 2018 Connie Dorigan. All rights reserved.

This is a general interest article and does not constitute specific or legal advice.

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