By Bartina L. Edwards
One should not have to choose between feeding her children or sleeping with her boss.
Thank you, but no thank you. Until recently, there are those who would have scoffed at this statement. While women are not always the victim in all cases of sexual harassment, the statistics show that bear out an overwhelming majority of the victims are women. As a result of the public outcry and media reports of sexual harassment, terms such as sexual harassment, hostile work environment, quid pro quo and sexual assault are now more commonplace than ever. However, in spite of receiving more than 30,000 charges involving workplace harassment in 2015, the Equal Employment Opportunity Commission reports that three out of four cases of workplace harassment still go unreported.  So, this is only a tip of the iceberg. According to the EEOC’s Study of Harassment in the Workplace Report, the most common workplace-based response by those who have experienced sex-based harassment is not to report it, but to avoid the harasser, deny or downplay the gravity of the situation or attempt to ignore or endure the harassment. Seldom does the victim complain about or confront the harasser, because she fears she won’t be believed, the company won’t take action, she’ll be blamed for the harassment or she’ll experience retaliation and reputational damage in her community. This inaction becomes even more problematic based on the laws and affirmative defenses that are currently in place and available to employers to avoid liability. Thus, it becomes a perpetuating cycle that causes grave economic and emotional damage.
Sexual harassment is a form of discrimination on the basis of sex. This form of discrimination violates applicable state statutes, where they exist, but on the federal level, sexual harassment violates Title VII of the Civil Rights Act of 1964, for which the EEOC has authority to enforce this law. Title VII applies to those employers (private sector, state and local governments) who have 15 or more employees.
More specifically, by definition, sexual harassment is unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:
(a) Acquiescing to the requested conduct is made implicitly or explicitly a term or condition of employment; (b) acquiescing or declining the requested conduct is used as a basis for an employment decision; (c) the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment; or (d) there is an unwelcome display or communication of sexually offensive materials.
Often, there is a reference to quid pro quo harassment and a hostile work environment. These are different ways in which sexual harassment may be experienced. For example, where there is an action taken by one who has the power to hire, fire, promote, demote, affect one’s work hours or assignments, impact her benefits, pay or other terms of employment, the employer can be held liable for the actions of the manager or supervisor who took the action. As an offshoot of this, if that manager or supervisor asks for something in return from the employee, such as providing the employee with a raise in exchange for a sexual favor, this is known as quid pro quo, which impacts the terms and conditions of the employment.
Compare the above to the definition of a hostile work environment, which is much broader. In this case, the offender/harasser does not have to be a superior (i.e. supervisor/manager), but can also be a coworker. In order to be defined as a hostile work environment, the general view is that the harassment must be so severe and pervasive that a reasonable person would view the environment as hostile, offensive or abusive.
While these legal definitions may seem straightforward, often they are not, and the burden placed on the victim can be daunting. However, it is important to remember that there has to be some evidence that the conduct was unwelcome. So, it is important to unequivocally inform the harasser to stop and rebuke the conduct if you are a victim. Additionally, while the victim is usually a woman, the victim, as well as the harasser, can be a man or a woman, and the victim does not have to be of the opposite sex. The harasser can be the victim’s manager, supervisor, another employee in a different area of the company, a coworker or a non-employee. Also, one who observes the harassment or is offended by the harassment may be a victim. The victim does not necessarily have to be the actual person harassed, if the victim is affected by the conduct as described in the definition above.
There can be confusion around sexual harassment and sexual assault. While there can certainly be overlap based on the actual conduct, these are generally two different claims.. Sexual assault is an intentional sexual contact, usually with some use of force or abuse of authority, and/or is present when the victim does not or cannot give her consent. The primary difference between sexual assault and sexual harassment is that sexual assault is a criminal offense against the person regardless of the environment; and sexual harassment is a civil offense that involves the workplace or some form of performance- based activity. Both are illegal, and you may have a claim for either or both if you are a victim.
But what does this all mean? And what do sexual harassment cases have in common?
Historically, silence has been the most common response to sexual harassment. Sexual harassment has been illegal for more than 50 years. Yet, laws have been eroded, arbitration agreements have been implemented and workplace actions have been ratified and perpetuated by those in power. While many employers contend that sexual harassment cases are difficult to address because each one is fact-specific, my case experience shows something different. Regardless of the facts, these cases have a common thread: a culture of secrecy, retaliation and power. It is the commonality that can be addressed by employers instead of the differences. There is a mind-set that has existed for years that has to be changed. Culture is influenced and defined by leadership and the decision-makers in a company. You change the culture by changing the paradigm, which necessarily changes the behavior.
Sexual harassment is wrong, and companies should want to change for altruistic reasons. Moreover, there is a pragmatic business case for making change. But simply, it is the right thing to do. Iit has been said that one cannot legalize morality. My response: You can mobilize reality. Movements such as #Me Too are prime examples of such mobilization, a catalyst for change. Another example is the reform that came after the Rape on the Night Shift project uncovered that 2,500 workers on the night shift had been sexually assaulted or sexually harassed.
Sexual harassment is not about sex. It is about power, and until the culture changes and the power shifts, the challenge remains.
Here are some actions that you can take to help protect yourself in the workplace:
1) Victims and bystanders should report (in writing) the harassment, using the internal grievance or complaint process outlined in the company’s handbook, and report what they have witnessed. Collaborate with others to get the courage you need. There can be safety in numbers. Additionally, once others are informed, most employer policies require the employees/managers having knowledge of the incident to report it;
2) As difficult as it may be to talk about it, talk about it. Use and retain emails, text messages and document conversations with coworkers, managers, supervisors, as it relates to the incident(s). This includes any responses you receive as related to the incident(s);
3) If the company insists on making verbal contact, as part of the investigation, you should document each conversation and provide a followup written summary, via email or written letter, if you do not receive anything in writing from the human resources department tor the investigative group that has been assigned to your claim;
4) Keep your emails in a location where you can retrieve them in the event you need them and you are no longer working for the company, especially when you believe you are being harassed or retaliated against for reporting wrongdoing or taking valid actions within the workplace. Often, employees no longer have access to this information when they need it, and managers and others will say things in emails they won’t say in person, or don’t think about when they fire off an email to an employee;
5) Seek legal advice if you’re asked to sign an arbitration agreement;
6) Companies should limit meetings to locations in the workplace, unless a global offsite training is occurring. With few exceptions, any other meetings outside of the workplace should be confined to lunches; avoid dinners;
7) Limit the consumption of alcohol at business meetings;
8) Depending on the passengers, consider riding in separate cars to and from meetings;
9) Document performance: Keep track of your metrics, keep copies of your performance reviews in a place where you can retrieve them if needed and report the lack of a performance review to your human resource manager if your manager is resistant to conducting a timely performance review;
10) Be observant of your coworkers’ comings and goings;
11) Do not laugh off offensive jokes or pictures, especially when directed to you and in your presence, if you are offended;
12) Get a mentor or seek legal advice so that you can learn to self-navigate the workplace;
13) Seek advice on whether the use of tape recorders and cameras is prohibited. If there is not a company or facility policy prohibiting such, this may be an option. However, you also need to be aware of your state’s party consent laws.
While these suggestions may not be applicable to everyone or every situation, they may assist in self-navigating the workplace and minimizing one’s exposure to discrimination, and changing the harassing behaviors. The time has come, the time is now — let’s change the paradigm.
Bartina L. Edwards is based in Charlotte, NC, where she actively practices employment law and business law in The Law Offices of Bartina Edwards. She has a corporate background, represents the plaintiff in employment actions and is also trained in Civil Collaborative Law. She is a managing director of CP3 Paradigm, LLC, a consulting firm devoted to advancing equity in the workplace by focusing on organizational paradigms.