Outdated, Much? Why Our Sexual Harassment Definition Needs a Serious Facelift

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By Kristina Udice

READ MORE: Discrimination, Harassment, Sexual harassment, Women in the workplace, Workplace, Sexism, U.S. Department of Education, U.S. Equal Employment Opportunity Commission, Merriam-Webster, The Weinstein Company, United States Department of State

With our societal climate being rocked with sexual harassment scandal after sexual harassment scandal, it’s a wonder we’re even shocked anymore by instances of sexual misconduct against women.

Celebrities are coming out about workplace sexual harassment in interviews and on live television. Powerful women are taking the stage to fight against a society that allows this sexually inappropriate behavior to continue. Social media campaigns are being waged against harassers and those that allow them to continue thriving. So with all of this talk, can we finally come to a consensus on a sexual harassment definition? That’s the first step, isn’t it? Being able to acknowledge a behavior and give it a name that people know and understand and accept as utterly and egregiously wrong?

There’s a reason so many victims never speak out many reasons in fact but one of the main reasons is because of the lack of knowledge and education surrounding the topic of sexual harassment. It has so many definitions, so many different interpretations, but do any of them resonate? When so few can come to a clear understanding of what sexual harassment is, how can businesses and organization instill an effective sexual harassment policy?

This isn’t the first time questions about sexual assault, sexual violence, sex discrimination non-sexual harassment, and other types of discrimination and harassment have been brought to light. This has been a civil rights issue for centuries. If you go back to the 18th and 19th centuries you’ll see instances of women living and working in a hostile environment. And as the years continued, and women began entering the workforce in larger numbers, it only got worse. Their civil right and individual employment was compromised by lewd comments, sexual favors, and general unrest and anger from their male counterparts. And it wasn’t just in the workplace. Street harassment plagued women in the 1900s just like street harassment affects women in 2017.

It took centuries for women to see legislation on this front, and it came in 1964 with Title VII of the 1964 Civil Rights Act. But even then, the actual phrase sexual harassment wasn’t even coined until 1975!

While the act of sexual harassment has been around since the beginning of time, the phrase itself is barely 40+ years old! And in this time, the phrase has grown only slightly in scope and scale.

As far as a staunch, set in stone sexual harassment definition is concerned, here is what Merriam-Webster has to say:

Sexual Harassment: uninvited and unwelcome verbal or physical behavior of a sexual nature especially by a person in authority toward a subordinate (such as an employee or student)

The U.S. Equal Employment Opportunity Commision (EEOC) has this to say:

It is unlawful to harass a person (an applicant or employee) because of that person’s sex. 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 have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law doesn’t prohibit simple teasing, offhand 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 co-worker, or someone who is not an employee of the employer, such as a client or customer.

The U.S. Department of State (DOS) says this:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

1) An employment decision affecting that individual is made because the individual submitted to or rejected the unwelcome conduct; or

2) The unwelcome conduct unreasonably interferes with an individual's work performance or creates an intimidating, hostile, or abusive work environment.

Certain behaviors, such as conditioning promotions, awards, training or other job benefits upon acceptance of unwelcome actions of a sexual nature, are always wrong.

Unwelcome actions such as the following are inappropriate and, depending on the circumstances, may in and of themselves meet the definition of sexual harassment or contribute to a hostile work environment:

Sexual pranks, or repeated sexual teasing, jokes, or innuendo, in person or via e-mail;

Verbal abuse of a sexual nature;

Touching or grabbing of a sexual nature;

Repeatedly standing too close to or brushing up against a person;

Repeatedly asking a person to socialize during off-duty hours when the person has said no or has indicated he or she is not interested (supervisors in particular should be careful not to pressure their employees to socialize);

Giving gifts or leaving objects that are sexually suggestive;

Repeatedly making sexually suggestive gestures;

Making or posting sexually demeaning or offensive pictures, cartoons or other materials in the workplace;

Off-duty, unwelcome conduct of a sexual nature that affects the work environment.

A victim of sexual harassment can be a man or a woman. The victim can be of the same sex as the harasser. The harasser can be a supervisor, co-worker, other Department employee, or a non-employee who has a business relationship with the Department.

The Department of State (DOS), Equal Employment Opportunity Commission (EEOC), and Merriam-Webster all have slightly varying definitions of sexual harassment. My point? We can’t seem to come to a clear conclusion on what a sexual harassment definition should be. Does it just happen in the workplace? Does it have to be from a manager, supervisor, or other person of authority? Does it have to entail consistent, repeated offences or are one of two disgusting comments enough?

A reasonable person doesn’t just have to look to the recent case of Harvey Weinstein to see that individuals in the position of power often take advantage of it, using sexual favors, suggestive comments and sometimes even sexual assault to satisfy their own needs and affect the work performance of those around them.

There have always been Harvey Weinsteins.

Back in 2009 David Letterman took to the stage to apologize to his wife, kids and staff for his affair with his assistant. The whole story came to light because of an alleged extortion attempt, but that doesn’t overshadow this obvious abuse of power David Letterman is guilty of. Not only did this affect the woman he was sleeping with, but the staff around him who knew of the behavior and were forced to stay silent for fear or repercussions. Is this not a form of sexual harassment? Did this sexual activity not bring about a hostile working environment?

Earlier this year, Casey Affleck made headlines for his dazzling role in Manchester by the Sea a role that scored him a number of red carpet awards including an Oscar. But this news almost overshadowed another revelation: that seven years prior, Affleck had been accused of sexual harassment while on set of the film I’m Still Here, and that the Academy disregarded the allegations while paying off two separate lawsuits connected with the actor. The alleged harassment came in the form of Affleck crawling into bed with a woman while she slept, forcing her to stay in his room, and turning violent when she declined. There were also claims of verbal harassment, and an incident when Affleck allegedly used his power to get another subordinate to expose himself to the woman. In this case, all points from the definitions seem to be made, and yet the harasser himself, as well as the organization he is supported by, deny claims of sexual harassment.

And it’s not just in the entertainment industry that this workplace secual harassment runs rampant. One of the most infamous cases of sexual harassment occurred in the 1990s, just a few years after sexual misconduct and harassment policies were put into place.

In 1991, Anita Hill testified against U.S. Supreme Court nominee Clarence Thomas. Hill testified that Thomas had consistently spoken to her about his sexual escapades, touching on topics like pornography and beastiality, while she worked for him at the Department of Education. Thomas denied the allegations, and ended up winning the nomination and getting a seat on the supreme court. This happened during a time of confusion when it came to the topic of workplace harassment. Some of the first anti-discrimination laws about sexual harassment had just been passed a decade prior and the country still didn’t know how to handle sexual violence, assault, quid pro quo sexual favors, or anything in the workplace. The one good thing to come from this instance, however, was the influx of sexual harassment claims made to the Equal Employment Opportunity Commission (EEOC) in the following months and years.

In all of these cases, a hostile environment was created based on innapropriate sexual activity, sexually demanding quid pro quo, and workplace harassment. And the sexual harassment policy set in place did nothing to help. Is this because of a prevailing stigma against women in the workplace? An expectation that women are supposed to take living in hostile work environments with a smile? An innate sex discrimination of women that has been around far before the first anti-discrimination laws were passed?

Yes.

But if we start changing what people know to be sexual harassment, maybe we can get one step closer to getting a resolution we all want to see

Do I have the answer when it comes to the questions of creating a new, far-reaching definition of sexual harassment and in turn a more comprehensive sexual harassment policy? No. But it’s time to start that conversation. We can’t expect opinions to change, hostile work environments to improve, and behaviors to suddenly do a 180 if we can’t agree on the simplest of things. Because if we can’t agree on what workplace sexual harassment even is, how can we change the workplace and ensure more people don’t become victims?

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