How to Deal With Sexual Harassment in the Workplace - The Muse

How to Deal With Sexual Harassment in the Workplace - The Muse How to Deal With Sexual Harassment in the Workplace When Alicia Raimundo took an internship-type role at a tech company, she was one of the only women working on her floor. There were frequent flirtatious and unwelcome comments about, for example, how sexy she looked when she wore a dress. “I saw boundaries being crossed but felt powerless to do something about it,” Raimundo says. “It felt like picking battles and I wasn’t picking that one.” That is, until one day when a male colleague- senior to her but not in the same reporting line- came to her cubicle and grabbed her butt uninvited. In any other context, she would’ve slapped him, she says. But she couldn’t imagine slapping someone at work, the sound reverberating across a quiet office as heads turned. How could he feel entitled to touch her like that? There was a voice in the back of her head that blamed herself, and besides, she says, when you’re a student, an intern, a new hire, you “feel like you have no power and are very easily replaceable.” That moment in her cubicle, however, after weeks of words that made her extremely uncomfortable but felt harder to parse or categorize, “made it clear to me: This is harassment. This isn’t a funny joke.” Raimundo’s story is hardly unique. LeanIn.org and McKinsey’s 2018 Women in the Workplace study found that 35% of women have experienced some form of sexual harassment over the course of their careers (the share jumped to 45% of women working in technical fields, 48% of lesbian women, and 55% of senior-level women). And men experience sexual harassment as well; they filed about 16% of total sexual harassment complaints with the Equal Employment Opportunity Commission (EEOC) in 2018. Even when you know that what’s happening isn’t right, it can be intimidating to try to figure out if it crosses the line into something legally wrong. And deciding what to do about it can be just plain overwhelming- especially while you’re stuck in an emotionally draining and sometimes traumatizing situation. We’ve got a primer to help you understand what sexual harassment is, make sense of your options, and take care of yourself in the process. What Is Sexual Harassment? Who’s Covered by Sexual Harassment Laws? Okay, But What Does Sexual Harassment Look Like IRL? What Can I Do if I Think I’m Being Sexually Harassed at Work? How Do I Report Sexual Harassment if I Decide I Want To? Will I Be Retaliated Against- and What Can I Do if I Am? What Should I Do to Take Care of Myself? Before you read on, an important note: While we interviewed lawyers for this story, we are not lawyers ourselves, and every case is different. So please consider this a general resource to help you get started and, if you need it, seek personalized advice specific to your situation from an actual lawyer! What Is Sexual Harassment? Legally, sexual harassment is actually a form of sex discrimination under Title VII of the Civil Rights Act of 1964, which also protects employees from discrimination on the basis of race, color, religion, and national origin. On its website, the EEOC, which is the federal agency tasked with enforcing employment discrimination laws, explains that: 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. EEOC That’s a lot of language to unpack, but it’s probably more helpful to look at the two categories lawyers generally talk about when they’re discussing sexual harassment. 1. Quid Pro Quo Quid pro quo is a Latin phrase that literally translates to “something for something” or “this for that.” In this context, it might look like, “You [go on a date] with me, I’ll give you the job. You have sex with me, you’ll get to keep your job,” explains Karen Elliott, a management-side labor and employment attorney at Eckert Seamans in Richmond. When someone explicitly states or even implies that agreeing to sexual favors or romantic involvement will affect or determine whether you get the job, keep the job, get the promotion, get the raise, get the bonus, or get a fair performance review, that’s sexual harassment. 2. Hostile Work Environment But there are also countless kinds of sexual harassment that don’t include propositioning for sex as a condition of employment or advancement. These include sexual advances, innuendos, and comments as well as any other unwelcome conduct on the basis of sex that, according to the EEOC, “is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” One extreme incident might be considered severe enough that a court would rule it created a hostile work environment, but often it’s smaller incidents that repeat and accumulate to become pervasive. In other words, “it’s on a daily basis, on a weekly basis. It’s been going on for years. It’s so ongoing that you simply cannot ignore how a person would be affected by it,” says Silvia Stanciu, an employment litigator at the New York firm Phillips Associates. Note: The person or people affected don’t have to be the ones offensive comments or jokes were directed at. Maybe they weren’t even part of the conversations, but overheard them- that’s enough. The law does not spell out exactly which behaviors and what frequency would make something rise to the level of a hostile work environment, and so it’s left up to the court’s interpretation- and that depends on the time and place. “What courts accept as creating a hostile work environment is changing dramatically,” says Elliott. The same goes for what’s being considered severe or pervasive. “This is a law that grows as societal norms change and the courts have accepted that change in how they’ve applied it.” It also depends where you are and whether the judges on the bench in that area are more liberal or conservative. Who’s Covered by Sexual Harassment Laws? Federal law covers employers in the private and public sectors that have 15 or more employees. The EEOC emphasizes that the harasser can be the target’s direct supervisor, another supervisor, a co-worker, or someone who isn’t an employee at all (like a client or customer), and that the harasser can be of the same or opposite sex as the victim. Many states and cities have their own anti-discrimination laws, and it’s always worth reading up on what additional protections the laws relevant to you might cover. For example, New York City’s Human Rights Law covers all employers in that city with four or more employees. You can find a quick overview of state laws here, but your state or local government website will usually have more specific information. Okay, But What Does Sexual Harassment Look Like IRL? Let’s start here with the caveat that the specifics of a case are important and that different courts might rule differently on some matters. But here are several examples of behavior or incidents that, if unwelcome, could constitute sexual harassment in the workplace. (This is by no means a comprehensive list!) Comments about someone’s appearance Conversations, questions, and stories about sex Staring and looking up and down Following someone around Rumors about someone’s sex life or use of sex to get ahead Suggestive emails, text messages, or other communications Sexist comments that are not necessarily sexual Vulgar language, jokes about sex (or gender), innuendo, and music with sexually explicit lyrics Displays of pornography or sexually explicit or degrading materials (including posters, calendars, drawings, emails, screensavers, and more) Unwanted touching or physical contact Requests for sexual favors and pressure for sex Threats based on rejection of sexual advances Rape and sexual assault What Can I Do if I Think I’m Being Sexually Harassed at Work? This is a personal decision, and in order to figure out the right path for you, you might have to seek out legal advice tailored to your situation. But here are a few things you can do to start. 1. Document It While you decide what else you want to do, if anything, you can begin keeping a record. “We recommend that our clients have some kind of a log of the incidents that are happening,” says Stanciu. “General kinds of complaints give the company unfortunately a little too much leeway,” she explains. If you decide to report sexual harassment, it’ll help if you’re able to point to specific dates and very specific comments or behaviors. So when that colleague brushes up against you again or your boss makes yet another dirty joke at the staff meeting, write it down. The advocacy and policy organization Women Employed recommends jotting these notes down in a bound book and keeping it at home (or elsewhere outside your office). This way, if you report the harassment to your employer or the EEOC, you’ll be able to present detailed examples. If you turn to a lawyer, Stanciu says, they’ll probably have you put together a timeline and it’ll be much easier if you’ve been recording incidents along the way. You might ultimately decide to do none of those things, but it doesn’t hurt to document just in case. 2. Make It Clear It’s Unwelcome Since the key element of sexual harassment is the fact that the conduct is unwelcome, make it clear that’s the case, if you feel safe doing so. Elliott recommends trying this approach first particularly when dealing with behavior that is obnoxious and offensive but not necessarily predatory. For example, she says, you could try saying: That kind of conversation is inappropriate in the workplace. It makes me uncomfortable. It makes all the other women uncomfortable. Please stop doing it. You shouldn’t communicate in that way. It’s offensive to me. Please stop talking to me that way. I do not want to date you. Do not give me any more compliments. It makes me uncomfortable. If the harassment continues and you later decide to take your complaint to the employer, it can help to be able to truthfully say that you’ve made it clear the conduct is unwelcome and asked for it to stop. 3. Consult a Lawyer Theoretically, you don’t need a lawyer to report sexual harassment to your employer or file a charge with the EEOC. But if you find the situation confusing, need advice on whether certain behaviors constitute sexual harassment, or have reason to worry that your employer won’t respond kindly or effectively to a report, you might want to seek legal advice. Some firms offer free consultations. Look for plaintiffs lawyers, or those who represent targets of sexual harassment rather than employers. You can consult directories from the American Bar Association, the National Employment Lawyers Association, or the nonprofit organization Workplace Fairness. Alternatively, there are advocacy organizations such as Equal Rights Advocates that offer free legal advice, counseling, or referrals. 4. Make a Change In a perfect world, there would be no such thing as sexual harassment. In a slightly less-than-perfect world, reports of sexual harassment would be met with swift action and no negative consequences for the victim whatsoever. Unfortunately, although the number of complaints filed with the EEOC has increased in the wake of the #MeToo movement, and the conversation has certainly evolved over the years, the reality still isn’t perfect or even slightly less-than-perfect. All that’s to say that you might decide for various reasons not to report sexual harassment. But that doesn’t mean you should have to continue to endure it. It might be the right time to begin a job search that will allow you to give your notice and leave for a new opportunity or, if it’s feasible financially, to quit first and then begin applying for new roles without the specter of sexual harassment looming over your everyday life. If you do decide to report the harassment, read on to learn more about your options. How Do I Report Sexual Harassment if I Decide I Want To? You have several different options if you decide you want (or need, for your safety) to report sexual harassment. As always, the “best” decision will depend on so many factors, and it’s wise to seek advice specific to your situation as you figure out how to proceed. Option 1: Go to Law Enforcement On one end of the spectrum of what constitutes sexual harassment is conduct so severe it’s criminal. When it comes to sexual assault or rape at work or off site- on a business trip, for example- you might want to go directly to law enforcement. “I’ve had cases where we encourage our clients to go to the police,” says Stanciu. “If they feel mentally prepared and if they’re comfortable with that, we encourage clients to file [a] police report.” Option 2: Report It According to Your Company’s Policy Companies will often have policies and instructions laid out about how to report sexual harassment. Check your employee handbook, paperwork you received during onboarding, your employee portal, or anywhere else official documents live. Note: In most cases, an employer can’t be held liable unless it’s aware of the harassment. In other words, if you don’t tell them, not only do they not have the chance to do the right thing (which one hopes they would), they can also claim later that they didn’t even know it was happening. Your company’s policy might direct you to your own supervisor, the harasser’s supervisor, anyone in the supervisory chain of command, someone in HR, or some other representative or mechanism. If the organization is large or decentralized, the first step might be an online form or an employee hotline. It’s important to note that once you tell anyone in your organization’s management structure (even if it’s not your own boss) they must report it to HR. One caveat: You might consider seeking legal advice and/or going through another channel “if the policy was one where it was very clear that it was not reasonable for you to use it, like the supervisor is the harasser and that’s the only person you can report to,” says Christopher Kuczynski, Assistant Legal Counsel at the EEOC, or you know from past instances that reporting at your organization is ineffective. Be sure to keep up your documentation efforts during this part of the process. “We always recommend that you ask for something in writing to verify that you’ve made a complaint,” Stanciu says. If your company won’t provide you with a copy of your complaint record, send a follow-up email with a summary to whoever you made your verbal complaint to, in order to create a paper trail. That way, the company can’t later claim you didn’t say anything and, should you need to escalate things, you’ll have a clear record of the chain of events. Stanciu also recommends asking for a timeline so that you know when you can expect to hear back and continue to follow up if you don’t. The company will likely conduct an investigation and make some sort of decision about next steps. They may not share every detail of the findings or outcomes with you, but ideally they’ll keep you updated at least in general terms. The company doesn’t necessarily have to fire the harasser or take the particular action you’d want, it’s only required to make the harassment stop. Note: If the behavior you’ve reported is extreme, says Ernest Haffner, Senior Attorney Advisor at the EEOC’s Office of Legal Counsel, the company should take steps to separate you and the harasser immediately, so that you’re not in danger while it conducts its investigation and determines what steps to take. Option 3: Go Through Your Union If you’re a member of a union, you can also speak to a union representative. “That’s someone who can serve as the go-between between the employee and the company,” Stanciu says, “if the employee either doesn’t feel comfortable going directly to speak to the harasser or going to speak to HR or if there is no HR.” The union could help navigate the reporting process with your employer. Keep in mind, however, that if your harasser is also a member of the collective bargaining unit, the union is there to protect and advocate for them as well. In some cases Haffner has seen, a company will fire or discipline the person who’s been accused of harassment, but then through union intervention, “they’ll find that there wasn’t sufficient evidence or that the discipline was overly harsh. So they’ll reinstate the person.” Option 4: File a Claim With the EEOC or Local Agency At any point, you can also choose to file a charge with the EEOC or with a state or local Fair Employment Practices Agency (FEPA). In fact, you’ll have to do so before you can file a lawsuit related to sexual harassment under federal law. You can look up the EEOC field office that covers your zip code here and also find out whether there’s a FEPA near you by clicking on “State and Local Agencies” in the menu that appears. Don’t forget that there are deadlines. You have to file within 180 days of the last incident of harassment, or within 300 days if there’s also a state or local agency that enforces a similar law. (These deadlines are different if you’re a federal employee or applicant.) Once you file a charge, the agency investigates and determines whether “there was cause to believe discrimination occurred,” Kuczynski says. If the agency finds no cause, it’ll give you a Notice of Right to Sue, and you can pursue a lawsuit on your own. If the agency finds there is cause, they might try to resolve the situation directly with the employer in a process called “conciliation,” litigate it themselves (rarely), or again give you a right to sue letter so you can go to court with your case. Option 5: File a Lawsuit Once you receive a right to sue letter, you’re free to file a lawsuit, but must do so within 90 days. Discuss the best step forward in your particular case with your lawyer, but keep in mind that a lawsuit may prove to be a difficult process. “The client has to be completely prepared that it will be uncomfortable, that they will have to reveal certain information about their own lives, about their own performance, about an array of things,” Stanciu says. If you’re arguing for emotional distress damages, for example, your medical records and even notes from therapy sessions might be fair game for both sides to pore over and analyze, she explains. “A lot of things come out in litigation that people are not prepared for.” A 2018 study from the University of Massachusetts Amherst Center for Employment Equity found that only about a quarter of those who pursued sexual harassment charges via the EEOC or FEPA received monetary compensation. The average award amount was $24,700 and the median award amount came to $10,000. Just 1% of awards exceeded $100,000 and “only 12% of charges lead to a managerial agreement to change workplace practices.” And although it’s not clear what the results are for those who file lawsuits, one of the report authors, CEE professor Donald Tomaskovic-Devey, explains that recent research “suggests for all discrimination lawsuits that both the size of monetary awards and their frequency are no better in the courts.” Will I Be Retaliated Against- and What Can I Do if I Am? The sad truth is that reporting sexual harassment can and often does have negative consequences for the person who brought the complaint. Raimundo, for example, reported the butt-grabber to HR, with the support of her supervisors (both of whom worked remotely). “I think he got a talking to,” Raimundo says, because he became “a lot more angry with me. He went out of his way to be as unhelpful as humanly possible and create problems for me.” The UMass study found that 68% of sexual harassment charges filed with the EEOC or FEPAs between 2012 and 2016 included allegations of retaliation, and nearly as many (64%) were associated with job loss. “Retaliation is quite common,” echoes Haffner. It might mean getting fired, demoted, or transferred, but it can also take other forms. Sometimes the harassment itself increases or intensifies. In cases where a complaint is made about a popular employee, Haffner says, co-workers often ostracize the person who spoke up. It’s hardly surprising, then, that many people don’t report. The UMass study estimated that roughly 5.1 million people experienced sexual harassment each year, but only between 25% and 40% of them made an internal report to a supervisor, HR, or a union, and only 0.18% filed a charge externally with the EEOC or FEPA. “Women will tell me, they’ll say, ‘I worked for years in the company. I was always known as well, she’s the woman who got so-and-so fired,’” says Elliott. She emphasizes that even if the harasser is found guilty, “many women would tell you they feel like their careers are over in that company and they have to leave. So it is a big decision to go forward.” Retaliation may be common, but it’s not legal. So while it’s understandable that a fear of reprisal often keeps people quiet, remember that any retaliation is another claim you can file against your employer. And that claim can hold water even if the original complaint doesn’t. In other words, if you report sexual harassment and it turns out that the behavior in question doesn’t actually meet the legal definition of sexual harassment, you can still have a case for retaliation if you were fired or shunned for making the complaint. In short, if you believe you’ve been retaliated against, you can report that as well, whether to your employer or the EEOC. What Should I Do to Take Care of Myself? Regardless of the path you decide to take, dealing with sexual harassment can be a fraught and arduous process. Don’t forget to take care of yourself- physically, mentally, and emotionally. Find Your Support Network It’s always a good idea to surround yourself with supportive friends, family, and mentors, but it’s all the more important when you’re facing something as mentally and emotionally taxing as sexual harassment, says Lisa Orbé-Austin, a psychologist and executive coach at Dynamic Transitions Psychological Consulting. Look outside of your workplace to find a small but solid group of folks you trust and have established relationships with and, as much as you feel you can, talk to them about what’s been happening, Orbé-Austin suggests. That way you’ll know “you’re not doing this alone, but you’re doing it with an informed group of people who are close to you and [can help you] make strategic decisions about what you should do next.” Those decisions will likely be complicated and hard to make. Lean on your network for advice when you could use it, but remember that “there’s no one right or wrong way to do things,” says Orbé-Austin. She emphasizes that even those closest to you will be influenced by their own perspectives, histories, traumas, and biases. “You have a right to whatever you decide, and once you move forward in a way that you feel is thoughtful and informed, it’s not helpful to hear people questioning your decision,” she explains. If they continue to cast doubt on the calls you’re making, you can say something like: Thank you for sharing your opinion. I understand that it comes from a place of trying to support me. But it’s not helpful and it’s not what I need right now. Instead what I need from you is XYZ. If your friend or family member can’t agree to stop disagreeing, you might want to take some space while you’re dealing with this. Turn to Professionals No matter how much your core support group loves you, they don’t necessarily have the expertise to help you in every way you’ll need. In addition to consulting a lawyer for advice about how to approach various interactions and situations at work from a legal perspective, Orbé-Austin urges you to consider reaching out to a therapist, a career coach, or both. A therapist, she explains, can help you with validating and processing your experience and figuring out how to keep yourself safe and healthy starting from the moment you feel something’s amiss and onward through the long-term consequences. For Raimundo, throughout her “real and shitty” experiences, both at that internship and in another situation when she was harassed, “therapists were a godsend,” she says. She later went on to become a mental health advocate. When workplace sexual harassment brings up previous sexual trauma, as it sometimes does, it’s particularly important to turn to a mental health professional. Take a look at what kind of help you might be able to access through your health insurance or other benefits, or use a directory like the one offered on Psychology Today (you can sort by location, insurance, and issue, such as “sexual abuse”). Even after a harassment experience is “over,” it can continue to affect your work in terms of how able you are to take on a new role or enter a new system, how competent you believe you are, and how you feel about your colleagues, bosses, and mentors, Orbé-Austin says. “It can make you feel very, very wary about taking career risks.” Orbé-Austin has worked mostly with women and has seen them shut down and take a step back in their careers to “an easier position that feels doable in a safe environment that feels predictable.” Some also fear retribution in professional networks and circles, hesitating to network or apply for jobs because they worry certain contacts have been compromised. A career coach, in addition to a therapist, could help you strategize around some of these thorny issues. Practice Self-Care Sexual harassment is “a really intense, awful experience that’s very depleting,” Orbé-Austin says. “And so you have to be very conscious of making sure that you are filling yourself with things that make you feel buoyed and that you have energy to face what’s happening in whatever way you choose to do that.” In other words, although you might be overwhelmed and drained, it’s important to make time for meditation, exercise, or any other “positive activities that fill your tank,” as Orbé-Austin puts it. Self-care, she says, “helps with resiliency. It helps with feeling less reactive.” She notes that you probably won’t want to do anything extra, but you should book self-care activities into your calendar. “You’re going to have to embed them into your ritual to make sure that you are taking care of yourself and feeling grounded in your life and in the routines that give to you.” That might mean taking regular yoga classes or playing those weekly pick-up basketball games, spending time drawing or signing up for that pottery workshop you used to love, practicing your religion or pursuing some other form of community affiliation, or anything else that is healthy and positive and might help you cope. Be mindful that you turn to activities that are purely helpful rather than ones that have negative consequences, such as overeating, drinking, or using drugs. Find a Community and Help Others When you’ve been a target of sexual harassment, it’s easy to struggle with isolation and, even though it’s unequivocally not your fault, with questions like, “What did I do?” and “What did I say?” “It’s really important to find communities where you start to realize you’re not alone by far. You’re so not alone,” says Orbé-Austin, who touts the benefit of finding a professional or other association where you can interact with, lean on, and eventually even mentor others. “It can be really helpful when you have felt victimized to then support people who’ve also been victimized,” Orbé-Austin says. “It can be really powerful.”