Dealing with Sexual Harassment at Work
Photo credit: Ottinger Law
How do you deal with sexual harassment at work?
This is an age-old problem, and not necessarily as uncommon as you might think. According to one survey of women in Silicon Valley, 60 percent of women employees had encountered workplace sexual harassment.
But before we delve into this form of discrimination, what is the definition of sexual harassment? The answer might surprise you. According to the United States Equal Employment Opportunity Commission (EEOC): “Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”
Harassment does not only have to be specifically related to sexual misconduct and unwanted sexual advances, however, but can also include offensive remarks about a person’s gender. For example, under EEOC guidelines, it is illegal to harass a woman by making offensive comments about women in general.
Both the victim and the harasser can be either a woman or a man, and the victim and harasser can be the same gender.
Although the law doesn’t prohibit simple teasing, off-hand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.
We are not attorneys, and the above is a rather technical, legal description of sexual harassment. If your situation is so serious that you're considering filing a sexual harassment case or lawsuit, you've probably already received a free consultation with an attorney and considered many of the things we're about to discuss.
Practically speaking, if something is happening at work that creates a hostile environment and makes you uncomfortable, you will probably want to do something about it. One of the most frequent question we get at Fairygodboss is what to do and unfortunately there is no simple answer because every situation has its own dynamics and every workplace has its own culture and sexual harassment policy.
It may seem obvious, but it’s very important to acknowledge that every person has different levels of tolerance and a different personality when it comes to making a decision about whether to confront the person making them uncomfortable and/or report the issue to a manager or HR representative. That's why we think there's no simple, one-size-fits all solution to the problem.
While most employers have policies and procedures for sexual harassment and discrimination (which include training for staff), the unfortunate reality is that by the time an issue arises, all the preventative measures have, by definition, failed. If you feel that the officially recommended course of action at your company is not appropriate for your situation, it’s important to listen to your gut and intuition.
The real decision, in our opinion, is whether you do more than talk to (or confront) the person who is creating issues for you. We can't offer any specific advice about individual work harassment cases, but we do think there are different considerations and options depending on who the perpetrator is:
1. Your harasser is your colleague, or someone at the same level as yourself.
Simplistically, you have a choice between asking your coworker to stop behaving in a certain way, or simply avoiding them (if possible). Sometimes you may work very closely with this person and this will be a very delicate conversation that has to be handled with their ego and even potential retaliatory behavior in mind.
One option if you've already spoken to the person or just decided there's no point — speak to your manager and/or their manager (if different from yours). You can ask the perpetrator's manager to handle this in a discrete or generic way (e.g. "Justin, we have heard that sometimes the jokes you make around the office are making people uncomfortable. You should be aware and more careful with what you say.") You can also talk to someone in HR about doing the same.
2. Your harasser is your manager, or on the management team.
If person committing sexual misconduct is a manager — or your own manager — it's obviously a much trickier situation. Depending on your relationship with the person, you can consider trying to communicate the issue delicately, but more likely you will want to skip right to their manager (if they are not the CEO) or someone very senior in HR.
However, be aware that a third party may simply not respond well or side with your perspective/experience. If you have no sex discrimination or harassment evidence beyond a he-said-she-said anecdote, or the behavior is subtle, you may still get all the support in the world. However, you should also be realistic that things may not go your way and instead become quite difficult and awkward for you at work.
The potential risk may be worth it — but only you know whether that's the case and can make that decision in the context of the culture and politics in your specific workplace. Whether an individual work harassment policy truly meets your needs is ultimately up to you. This is a very difficult issue, and even women who take actions they believe are correct are not necessarily satisfied with the ultimate outcome.
3. Your harasser is a client.
In the case that the perpetrator is a client, it's something that's potentially easier to report internally to managers or an HR rep because the offender is outside the company and you may simply be allowed to switch teams or projects.
Ultimately, you need to make a choice about whether you want to work with this client in spite of what you're going through. It's a personal decision but we believe you have every right to try to get out of the situation and you don't have to confront them yourself. Your employer has a moral and legal obligation to protect you from inappropriate sexual conduct and sex discrimination.
We've heard of very supportive work environments where clients were dropped because of egregious behavior towards a team member at work, so don't necessarily assume that someone will not take your allegations seriously at your own company.
Ultimately, it's an unfortunate reality that reporting an incident may not lead to the outcome you want. The probability of this outcome is oftentimes the reason many incidents go unreported and perpetrators go unpunished. As maddening as this is, only you can decide what course of action to take in your situation.
Many women unfortunately simply feel unhappy with their options. According to the same study of Silicon Valley women who reported experiencing harassment:
- 39% did nothing because they thought it would negatively impact their career
- 30% did not report anything because they wanted to forget
- 29% signed a non-disparagement agreement with their employer (presumably after reporting the incident)
It's human nature to want to smooth over unpleasant incidents so you're not alone if you simply believe it's best to move on (if possible).
Finally, it's worth stating the obvious: experiencing sexual harassment at work is very isolating. If you can confide in a colleague or friend at work who you believe will keep your confidence, it may be a relief to simply unload what is happening to a trusted confidante.
You never know — he or she may be able to help you think through your options in the context of the business, political, and cultural context in your job, and they may even be willing to raise the fact they believe there is a problem to HR or your manager. This doesn't mean you won’t have to have any difficult conversations yourself, but the first step may feel a bit easier if you know you have allies who have gone to bat for you.
Now that we’ve discussed the nature of workplace sexual harassment as it relates to who, specifically, is harassing you, let’s take a look at what the process will typically look like if you DO choose to report the incident(s) — as well as some important steps you can take in advance of reporting.
1. For starters, you should document everything.
It’s important that you keep a detailed record of every incident of harassment that you experience. Be sure to write down dates, names, locations, witnesses, and a detailed description of the offensive conduct, and save any inappropriate email or text communication you may receive from your harasser. This will be a record that you can refer to later during any internal investigations conducted by your HR department, or if you decide to pursue legal recourse in the future.
In addition, you should be sure to compile your notes and allegations somewhere other than company property — i.e., if you’re being subjected to harassment via your company email account, you should forward them to your own personal email. As horrible as it is to say, some women in the past have faced retaliatory action for reporting having been harassed, including being dismissed (which is illegal, and definitely qualifies you for a law suit). It’s an extreme scenario, but it has happened — and if you’re fired, you won’t be allowed to retrieve any incriminating notes from your work computer to help your case. It’s best to be as prepared, and therefore as protected, as possible for any outcome.
2. Know your company’s anti-harassment policy.
If you choose to report the harassment, it will help you have an idea of what to expect if you first familiarize yourself with your company’s specific policy. Every company should have a set sexual harassment policy that tells employees what to do if they would like to file a sexual harassment claim. This policy and procedure should be available to you in an employee handbook, contract, or in another document easily accessible to you. It should tell you who to report to, what you will need to provide, and what you should do if appropriate steps are not taken. Follow the policy step-by-step. Note that you are not obligated to tell your manager any complaint you share with HR, or even that you’re consulting HR in the first place. If you truly feel that you can trust your manager, though, looping them into the situation may be useful as to you, as it can take some of the pressure off of dealing with workplace harassment and keeping up a pitch-perfect performance.
3. Know your legal rights.
Depending on your satisfaction with how well your company’s HR team and anti-harassment policy address your claim, you may want to consider pursuing legal action. As mentioned at the beginning of this article, getting a free consultation from a sexual harassment attorney can’t hurt, even before you approach HR. If you’ve already approached HR and feel that your claim was inadequately or inappropriately handled, though, you should definitely familiarize yourself with the legal rights and protections you’re owed. For example, in the case of a sexual harassment claim, it’s actually illegal for your employer to retaliate against you under Title VII. Illegal retaliation encompasses not only dismissal (including from at-will employers), but extends to things like demotions, cuts in hours or pay, and negative performance reviews, too.
Under Title VII’s federal law, your harassment complaint will most likely be categorized as either “quid pro quo” or “hostile work environment” — both of which are unlawful, but entail slightly different things. As its name would seem to suggest, quid pro quo harassment consists of being harassed through unwelcome demands for sexual favors in return for advancement or other benefits in the workplace. On the other hand, a hostile work environment consists of sexually motivated derogatory comments in the workplace. One is not exclusive of the other, it should be noted.
Federal law also protects you if you assist in the sexual harassment case of a coworker or other employee, so don’t be afraid to give a witness testimony or participate in an investigation for a case you’re not a direct part of. That still falls within your civil rights.
4. If you’re thinking of quitting — consider this first.We absolutely understand not wanting to remain in a hostile environment where you’re facing workplace harassment and/or inappropriate sexual conduct any longer than you can help. However, if you’re considering quitting, just be aware that if you’re no longer an employee of the company, you won’t be able to file a sexual harassment claim on their policy. Without the claim, you may not have a lawsuit. If you still want to quit but are also interested in pursuing legal recourse, you should do so after you’ve filed the claim and complied with the investigation.
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