My practice involves representing employees and management. I see how sexual harassment is perceived by the employer and the employee. This week I want to share some observations about the sexual harassment in the workplace. Before I start, a couple of disclaimers. First, I make reference to women as being victims of sexual harassment. Yes, I know men can also be victims of sexual harassment but the sad truth is that women are more frequently the targets of sexual harassment. Second, this post may turn into a little bit of a rant. With that said, let’s start.
The reality is that one in four women experience some form of sexual harassment. According to Fatima Goss Graves of the National Women’s Law Center, “Whether suffering harassment from supervisors, co-workers or third parties, most victims of harassment are still suffering in silence.”
It’s not about sex. It’s about power, control and company culture.
Sexual harassment is more about power and control than it is about sex. When it is prevalent in the workplace it is because a culture exists that tolerate inappropriate conduct. Employers that send the message that sexual harassment is not going to be tolerated and back that message up with action find that incidents of sexual harassment are not as prevalent. That means it has to be prohibited in the C-Suite and the shop floor.
I hear the same excuses made to minimize or rationalize sexual harassment. One of the most common excuses is, “It’s a predominantly male environment.” So what. You were hired to do a job. To use an Oklahoma term, “I’ll bet dollars to donuts” that the Craigslist ad didn’t say, “Looking for a forklift driver with 5 years experience and is able to slap a coworker’s butt.” Of course not. Interestingly, the same people that act inappropriately at work don’t seem to act that way when they go home. The other excuse, I hear is, “Well you should have seen how she dressed–tight pants and low cut shirts.” Many of you have mothers that were young adults in the 60’s and wore mini-skirts. Do you think your mom wanted some pig of a boss to sexually harass her? I doubt it and, no, it’s not different because we’re talking about your mom. The truth is that the harassment occurs regardless of what a person chooses to wear. Women will try a variety of things to discourage the harasser. Some will “ugly up for work.” In other words, they stop wearing make up, they wear frumpy clothes, and don’t do their hair. They hope that, by appearing unattractive, the harassment will stop. Generally, it doesn’t because it’s not about sex. It’s all about power and control and a company culture that tolerates inappropriate conduct.
Stop blaming the victim.
Instead of blaming the victim, why don’t we insist that all employees show up to work and do their job. It’s not hard. If your job description doesn’t include checking out your coworker’s cleavage, then don’t do it. Just like you wouldn’t think about doing warehouse work if your job is in the mailroom.
Women that muster up the courage to take a stand against sexual harassment face countless challenges. I still see employers insinuate that she must have been a trollop or a nut case. In the legal field some call this the “sluts and nuts” defense. No, she’s not a trollop and she’s not crazy. She’s just tired of a workplace culture that tolerates bad behavior without appropriate consequences. Unfortunately, companies that tolerate this behavior then want to claim that it was the woman’s fault for inconveniencing them with a sex harassment claim or, worse yet, they suggest she made it up. Without legal help, many of these women end up losing their jobs.
Why didn’t she make a report? That’s a good question. Sometimes it’s because women know that reporting sexual harassment will follow them to their next job, especially if they are in the trades or professionals. This is also true for women that have broken through the glass ceiling to become members of upper management. These women have a choice, endure it or speak out and risk losing your job. Before you criticize these women for making a tough choice, bear in mind that too often the woman who speaks out loses her job and the perpetrator may get disciplined but gets to keep his job. Other times it is because the perpetrator is so open about it and management is aware of “some bad behavior” but chooses to look the other way. Generally, this happens when the perpetrator is a rainmaker or is perceived to be a rock star in the field. On, yet, other occasions, a report isn’t made because the victim has seen the consequences of reports made by other women. Typically, it includes being ostracized and finding out that the coworkers, who encouraged the woman to make a report, feign ignorance. Then there are the cases of sexual harassment perpetrated by the owner, a corporate officer, a member of senior management or a relative of the aforementioned. It’s difficult to get an appropriate response from HR when their decision can place their job in jeopardy. Parenthetically, I have represented brave members of management and HR who lost their jobs because they chose to do the right thing. It’s unfortunate that more people don’t have the courage to stand up to workplace harassment when it counts.
So What Can You Do?
If you have experienced sexual harassment:
Get a copy of the company handbook and read the policy on reporting harassment.
Report it immediately. Don’t sugarcoat what happened. Give all the details. Who. What. When. Where. Lay it all on the table. Put HR or management in a position where they have to act.
If nothing is done, take it up the ladder.
Confirm all conversations with a follow up email, like this:
Dear (insert name):
Thanks for meeting with me to discuss my report of sexual harassment. It is my understanding the following my report you were going to ___________________. If you need any additional information, please call me or email me.
(Always be courteous in your communications, even when you are frustrated.)
Unless you are communicating with HR or management about an issue related to harassment in the workplace, NEVER use company email or devices to talk to anyone about your harassment claim.
Document, document, document. Keep a notebook detailing all of the events. Keep the notebook at home and don’t bring it on company property. Also, if you are going to keep your notes on a computer, don’t put it on the company laptop, tablet or smart phone.
Be on the alert for retaliation and report it immediately.
If none of this works, consult a seasoned employment law attorney.
If you are an employer:
Get the message across that sexual harassment will not be tolerated at any level in the company.
Don’t be afraid to fire a person for sexually harassing an employee. Your attorney would rather defend a wrongful termination lawsuit than a sexual harassment lawsuit. Taking prompt and immediate action conveys to your employees that you mean business and it provides valuable defenses to a claim.
Train, train and train. The Army boasts that “we train like we fight and fight like we train.” Your managers and HR people should be able to recite how to handle a complaint in their sleep. Bring in your lawyer or an HR professional to train your team. The money you spend in training will reap huge savings from the claims that are avoided.
Don’t be afraid to be human. Lawsuits have been avoided by employers that express legitimate concern for an employee that has been sexually harassed. I know it seems like a scary approach. (I can hear some lawyers losing control right now.) You are not saying, “I’m sorry it’s our fault.” You are conveying an honest concern for another human being. Legitimate concern, properly expressed, can be the difference between being an employer or adding the title “defendant” to your name. It’s your call.
Sit down with an employment law attorney and review your policies and procedures. Then review all of your policies on an annual basis.
If you want the business case for changing how you handle sex harassment cases, I want to give thought to the following:
a. How much money does it costs to replace a talented, hardworking, and loyal employee?
b. How much does it cost to replace an employee and what it your success rate with new hires?
c. How much money are you losing if you have employees that are losing just 15 minutes a day in productivity because they are worried about the actions of a harasser?
d. How much money you are spending investigating, settling, or defending lawsuits?
e. What type of a culture do you want to create? Is it a culture of inclusion or exclusion?
You already know the answer to these questions, it’s time to lead and be a change agent.
If you are a human being:
Let’s change how we view sexual harassment claims and the brave women that speak out. Let’s insist that the companies with whom we conduct business really mean it when they say they prohibit sexual harassment.
Too many talented, hardworking, and loyal people have either lost their jobs or left their jobs because of sexual harassment. It has to stop.
Filed Under: home-middleTagged With: change agent, national women's law center, retaliation, sexual harassment, sexual harassment lawyer, sexual harassment policy, sexual harassment retaliation, stop sexual harassment,workplace harassment