A touch on the knee. A lascivious glance. A crude comment by a colleague. An inappropriate suggestion. Most people have witnessed or experienced inappropriate sexual comments or actions at work that made them uncomfortable. However, all too often a careless comment or gesture turns into something more and crosses the line from inappropriate to harassment.
There is a strong “culture of silence” surrounding sexual harassment, especially in the workplace. However, talking about what happened, and reporting it, is the only way to change our culture to one where everyone feels safe and respected.
Sexual harassment goes far beyond typical workplace bullying, although it’s just as pervasive. Let’s take a look at what sexual harassment is, what it entails, and what you need to do if you find yourself on the receiving end of unwanted sexual comments or conduct.
What Is Sexual Harassment?
When does an unwanted advance go beyond flirtation and cross into the realm of sexual harassment? Flirtatious behavior becomes harassment when comments or advances are repetitious and begin to affect your physical and mental health or your ability to work effectively.
The U.S. Equal Employment Opportunity Commission (EEOC) states, “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”
Sexual harassment takes two primary forms. The first type of harassment is called “quid pro quo.” The U.S. Department of Labor states that quid pro quo “…occurs in cases in which employment decisions or treatment are based on submission to or rejection of unwelcome conduct, typically conduct of a sexual nature.” For example, your boss might insist that you accompany him or her to dinner, or lose your job if you refuse. Or, your colleague might pressure you into performing sexual favors in exchange for their help on a key project.
There is also hostile work environment sexual harassment, which “…may…consist of offensive conduct…that is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as being fired or demoted).”
Sexual Harassment vs. Sexual Assault
How is sexual harassment different from sexual assault? Sexual assault occurs when the perpetrator takes action without your consent. The Rape, Abuse & Incest National Network (RAINN), the nation’s largest anti-sexual violence organization, defines assault as “…sexual contact or behavior that occurs without explicit consent of the victim. Some forms of sexual assault include:
- Attempted rape
- Fondling or unwanted sexual touching
- Forcing a victim to perform sexual acts, such as oral sex or penetrating the perpetrator’s body
- Penetration of the victim’s body, also known as rape”
Important Note: If you have experienced sexual assault at work, it’s best to go straight to the police to report the incident so they can start a criminal investigation.
While it’s helpful to understand the parameters that define sexual harassment and assault, it’s also important to realize that what defines harassment is ultimately determined by the individual who experiences it. When a sexual harassment case is brought to court, for example, some courts define harassment as what a “reasonable person” would find offensive, while others define harassment as what a “reasonable woman” (when the victim is female) would find offensive.
And therein lies the problem: There’s no consensus on what does and does not constitute “reasonable” behavior. What one person might dismiss as a joke, another person might be made to feel acutely uncomfortable or even threatened.
Defining behavior based on what a “reasonable woman” would find offensive, rather than a “reasonable person,” also adds more mystery to an already murky area. Juries that are asked to look at behavior from the viewpoint of a “reasonable person” might inadvertently look at the situation from a male perspective. The 1991 court case Ellison vs. Brady acknowledged that this can actually reinforce the prevailing level of discrimination. The reason is because “conduct that many men find unobjectionable may offend many women.” Additionally, many women share concerns that most men do not.
How to Tell if You’re Being Harassed
With all the confusion surrounding what’s okay and what isn’t in terms of workplace behavior, how do you know when you’re being harassed? The best way to determine this is to go by how you feel. An off-color joke that offends you might be unwelcome and disrespectful, but it probably isn’t unlawful. However, if a person’s behavior is sexual in nature and it makes you feel uncomfortable on a consistent basis, it probably is. For example, sexual harassment might include:
- Standing too close, slipping an arm around your waist, or whispering sexual comments
- Remarks made about your clothing or appearance that are sexual in nature
- Requests to meet alone after work, or threats of reprisal if you don’t show up
- Repeatedly talking about their sexual experiences with you, or asking about your own sexual experiences
- Displaying sexually suggestive or offensive pictures
- Using crude language or offensive gestures
These are only a few examples that illustrate what sexual harassment can look like; however, there are many other forms it can take. Another way to tell that you’re being harassed is that the behavior doesn’t stop, even after you’ve let the perpetrator know that they’re making you uncomfortable. Again, always go by how you feel. If you start to experience dread when you know you’ll be in the presence of someone who frequently makes sexual overtures, you’re probably being harassed.
How Common Is Sexual Harassment?
Sexual harassment in the workplace is a widespread problem in the United States. According to a poll conducted by ABC News and the Washington Post, 33 million women in the United States have been sexually harassed at work, and 95% of female respondents reported that the male perpetrator went unpunished. That same poll found that more than half of all women have experienced unwanted and inappropriate sexual advances from men. Sexual assault outside of the workplace is also common. According to the Connecticut Alliance to End Sexual Violence, one in four women and one in six men will be sexually assaulted in their lifetime.
There is no “typical victim” for sexual harassment, although people most often envision a male supervisor harassing a female subordinate. However, the research paints a different picture: While harassment can occur to anyone at any time, a study conducted by the University of Maine found that women in leadership positions are at greater risk for sexual harassment. According to the study, 58% of female supervisors in a male-dominated work environment are likely to experience harassment, while 42% might experience harassment in a female-dominated work environment.
Why are women in leadership positions at a higher risk? The answer is at the root of why sexual harassment occurs in the first place. Most of the time, harassment is about power, not sex. Unfortunately, women in positions of power threaten some men’s identities. So, these men take steps to regain that power and cause others pain and humiliation in the process.
Low-income women are also at high risk. A study conducted by Hart Research found that two in five women in the fast-food industry experience sexual harassment at work. Here, the problem might be even more pervasive, since, in many cases, these women can’t easily quit their jobs or relocate. Many women fear that they will lose their jobs if they report the harassment and are therefore left to either cope with the harassment alone or try to rearrange their work schedules to avoid their harassers.
Why You Should Report Sexual Harassment
It’s incredibly important to report incidents of sexual harassment. One reason is that sexual harassment so often goes unreported in the workplace. According to the National Women’s Law Center (NWLC), 70% to 90% of women who are harassed in the workplace never report the incidents or file a charge.
There are many reasons why you might not want to speak up about what happened or file a complaint. You might be afraid of some form of retaliation, such as losing your job, getting demoted, or inciting further harassment from the perpetrator. You might think you won’t be believed, or that nothing will be done about the situation. You might feel ashamed of what happened and not want to deal with gossip or glares from your colleagues.
Those are all valid concerns. However, it’s important to realize that, in the end, the person harassing you wants one thing: power. When you report their actions and file a formal charge, you reclaim your power. This is an important step in bolstering your self-esteem.
Another benefit of reporting harassment is that it might help you start the healing and recovery process. Victims of sexual harassment often experience psychological and health effects, such as depression, anxiety, insomnia, and increased stress.
Whether you decide to report the incident or not, it’s essential that you take care of yourself. Talk to a friend, colleague, or therapist about what happened. Make sure you eat a healthy diet. Exercise at home to reduce your feelings of stress, and look into other natural ways to reduce feelings of depression and anxiety. The better care you take of yourself during this difficult time, the more power you will have to overcome the situation and emerge stronger than you were before.
How to Report Sexual Harassment
The decision to blow the whistle on your harasser is not an easy one. If you decide to move forward and take action, follow the steps below.
1. Confront Your Harasser
Before you talk to your boss or HR rep, let the perpetrator know that what they’re doing or saying makes you feel uncomfortable or unsafe and that you want them to stop. Confronting them first is important because there’s a chance that they genuinely don’t know that they’re making you feel uncomfortable. Additionally, if you do file a claim, your boss or HR rep will want to know if you tried to stop the situation on your own. If you speak up and the person continues harassing you, you have a case against them.
2. Read Your Employee Handbook
In 1998, the Supreme Court tried two cases that defined an employer’s liability when it comes to sexual harassment: Faragher vs. City of Boca Raton and Burlington Industries, Inc. vs. Ellerth. Thanks to these cases, employers are liable for unlawful harassment by their employees, especially when the harassment results in a tangible employment action (such as losing your job). However, if no tangible employment action can be proven, employers might have an affirmative defense, especially if they can show that they provided sexual harassment training to employees and did their best to prevent and correct any harassing behavior.
As a result of these verdicts, most companies are proactive about providing some form of anti-harassment training. Most companies go even further by defining what does and does not constitute harassment in their employee handbook and outlining a detailed procedure for reporting violations if they occur. Make sure you understand how your company defines harassment so you know if the situation you’re in falls under their parameters. Follow their procedure for reporting the incident (provided there’s one in place) to the letter.
3. Document Each Situation
All too often, cases of sexual harassment come down to one person’s word against another’s due to lack of proof or documentation. This is one reason why so many victims never come forward. Before you file a report with your company, start building your case. Every time this person makes an overture or makes you feel uncomfortable, write down what happened, as well as the date, time, and location. Be sure to also make note of any witnesses, as well as how the incident made you feel.
Paper copies of this documentation are often safer than digital copies stored on your work computer. If you have any photos, emails, or texts that support your case, print hard copies and store them in a safe location at home. If you decide to record a conversation, make sure you understand your state’s laws. In some states, such as California, it’s unlawful to record a conversation without the other person’s consent.
4. Report the Offense
You have a few options when it comes to reporting harassment. It’s always best to follow your employer’s procedure for reporting; however, some companies might not have a set procedure in place. One option is to talk to your boss (as long as they’re not the harasser, of course) or any supervisor you feel comfortable talking to. Request a formal meeting so that you have proof you made an official claim. Put your claim in writing and give it to the supervisor you meet with, and be sure to keep a copy for yourself.
Legally, your company has to open an investigation once a sexual harassment claim has been made. Note that it’s illegal for your company or supervisor to retaliate against you for filing a claim. If they don’t take action, if they retaliate, or if the harassment continues, your next step is to file a claim with the U.S. Equal Employment Opportunity Commission (EEOC).
Important Note: There is a deadline to contact the EEOC. The EEOC states, “If you believe that you have been the victim of discrimination, you generally have 45 days from the day the discrimination occurred to contact an EEO Counselor where you work or where you applied for a job. If the discrimination involved a personnel action (for example, a demotion or firing), you generally must contact the EEO Counselor within 45 days of the day the personnel action takes effect.”
The EEOC’s role is to negotiate with your employer to resolve the situation. If they can’t find a resolution, they will issue a “right to sue” notice. This gives you the power to take your case to court and possibly win damages for physical or emotional harm. One of the benefits of filing a claim with the EEOC is that you’re somewhat protected against retaliation.
Important Note: Keep in mind that you have to file a complaint with your employer first before you move on to filing with the EEOC. Not doing so will give your company a defense if you decide to sue.
You can also file a claim with your state’s Fair Employment Practices Agency (FEPA). The advantage of filing a complaint at the state level first is that it might cover contingencies or situations not covered by the EEOC, which is a federal agency. You can see a full list of agencies here. Often, a claim filed through FEPA will also be filed with the EEOC, giving you dual coverage.
5. Be Prepared for Consequences
One of the biggest tragedies surrounding workplace sexual harassment and assault is that victims often face retaliation once they’ve filed a claim or spoken up about the situation. Yes, it’s illegal, but it happens. In an interview with Forbes, Donna Ballman, a respected employment lawyer, states that in her 30 years of experience, retaliation seems to be the norm, not the exception, when it comes to sexual harassment claims.
Retaliation can take many forms. You might find yourself isolated at work. Some of your responsibilities might be given to a colleague, or you might even lose your job for reasons that have “nothing to do with your sexual harassment case,” according to your boss.
Before you file a claim, come up with a plan B that will help you navigate any retaliatory actions your boss or employer may take. Every situation is different, and you know your company best, so come up with a list of the most likely scenarios you might face. Doing things like updating your resume or even scouting out new employers can help you feel more in control. Take steps now to prepare yourself financially if you lose your job.
You shouldn’t have to take these steps. But the reality is that you might experience retaliation, and preparing in advance will reduce your stress and anxiety and help you come out ahead if things don’t go as planned.
What to Do if You Witness Sexual Harassment at Work
Even if you never experience sexual harassment at work firsthand, there’s a very good chance you’ll witness some form of harassment taking place. Knowing what to do beforehand can help you react in the moment and stop what’s happening.
The New York Times interviewed sexual harassment trainers and researchers who outlined several steps you can take if you witness sexual harassment. One tactic is to disrupt the situation by dropping a book, entering the conversation with a change of topic, or getting the victim away from the perpetrator with a question or request for help.
It’s incredibly important that you talk to the person being harassed. Victims often feel isolated and can quickly blame themselves for what happened. Once you’re alone, ask them about what happened and how they feel about the situation. Explain that you felt the perpetrator’s behavior crossed a line, and offer to accompany them to the human resources department if they want to report the situation. Most importantly, let them know that you’re on their side and that they’re not at fault for what happened.
As a bystander, it’s essential to speak up when you witness something inappropriate. According to Robert Eckstein, a lead trainer interviewed in The New York Times article, “Bystanders are unlikely to be present when the most egregious offenses happen, but harassers often test how far they can go by starting with inappropriate comments or touches.”
Speaking up sends a clear message to the perpetrator that you are paying attention, and you don’t accept their behavior. One way to speak up is to say, “I heard what you just said, and I’m not okay with this. It’s offensive and unacceptable.” As a bystander, you don’t have a legal obligation to speak up against harassment. However, you do have an ethical one. Harassment will continue as long as perpetrators feel like they’re getting away with it. And silence, be it from victims or bystanders, only encourages further misconduct. If you don’t speak up, there’s a very good chance it will happen again.
The Future of Reporting Sexual Harassment
There are many reasons why victims of workplace sexual harassment don’t speak up. One of the biggest is because no one wants to be the first to point the finger, in large part because perpetrators often work hard to damage their accusers’ credibility. However, once one person steps forward, many others may feel empowered to speak up as well.
The Atlantic reported on a powerful new way technology could be used to overcome this roadblock. In a 2012 paper published at Yale Law, Ian Ayres and Cait Unkovic discussed the power of using “information escrows,” also called “allegation escrows,” to encourage reporting.
The escrow system allows victims to report harassment claims to an intermediary agent, who sends along the details to the proper authorities only when certain conditions are met. The agent keeps all claim information confidential until there are enough claims (the number being specified by the company beforehand) on a specific individual to take action. For example, a company might set the bar at three claims per individual. So, an agent must receive three claims before they take action against the harasser.
The genius of the allegation escrow system is that it takes away the fear and stigma of being “the first accuser.” And, once the conditions are met, it also gives victims the empowering knowledge that they are not alone. A third-party reporting system similar to the allegation escrow is already used on many college campuses nationwide, and the system would be easy enough to implement in forward-thinking companies.
Despite increased awareness and ample training, sexual harassment is still rampant in the workplace. The only way we’re going to stop sexual harassment is to speak up, stand together, and collectively say that this behavior is unacceptable. As a society, we cannot continue to allow this kind of behavior to thrive; we can do better than this.
Have you experienced or witnessed sexual harassment at work? Did you report the incident? What happened?