By Gemma Alexander
Sexual harassment is a form of gender discrimination, and it’s illegal. But it’s still widespread,
and in some industries, like technology and astronomy, even endemic.
Despite legal protections for victims, sexual
harassment is underreported. Victims are reluctant to report harassment for
many different reasons, but two of the most common are that they don’t always
understand what constitutes illegal harassment and the workplace culture
protects the aggressor. How do you know if behaviors that make you
uncomfortable at work are actually illegal, and what can you do to protect
yourself if they are?
What counts as harassment?
What’s offensive to one person may be fine—even amusing—to
another. It’s hard to know where to draw the line between a hostile environment
and harmless flirting, especially because harassment is often accompanied by gaslighting, a manipulation that encourages victims to
doubt their own perceptions. But if interactions at work leave you feeling
vulnerable rather than valued, you are probably not just being too sensitive.
Sexual harassment is governed by Title VII of the Civil Rights Act
of 1964, the
landmark legislation that prohibits employment discrimination based on race,
color, religion, sex, and national origin. Title VII applies to employers
with 15 or more employees, including employment agencies, labor organizations,
and all levels of government. But in almost all cases, even if you are your
boss’s only employee, harassing behavior is illegal under local regulations
that mirror Title VII.
The U.S. Equal Employment Opportunity
Commission (EEOC) defines sexual harassment more broadly than many people
realize:
Unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a sexual nature constitute
sexual harassment when submission to or rejection of 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.
In the most common scenario, the victim of
harassment is a female subordinate of a male harasser, but the victim as well
as the harasser may be a woman or a man. The victim doesn’t have to be of the
opposite sex. The harasser doesn’t have to be a superior in the workplace
hierarchy—they may be the victim’s supervisor, but they may also be an agent of
the employer, a supervisor in another area, a co-worker, or a non-employee. In
fact, the victim doesn’t even have to be involved in the interaction—they could
be anyone affected by the offensive conduct. The primary requirement of sexual
harassment is that the harasser’s behavior must be unwelcome.
Although the definition above states that the
behavior must be sexual in nature, the phrase “intimidating, hostile or
offensive work environment” has long been understood to encompass all
gender-based discrimination. A typical example would be a boss who frequently
tells sexist jokes, or attributes work performance outcomes to sexual
stereotypes (whether in earnest or in jest).
What are the risks of reporting?
Fear of retaliation is probably the biggest obstacle to
reporting harassment. Retaliation is defined as:
- employment actions such
as termination, refusal to hire, and denial of promotion;
- other actions affecting
employment such as threats, unjustified negative evaluations, unjustified
negative references, or increased surveillance; and
- any other action—such as
an assault or unfounded civil or criminal charges—that is likely to deter
reasonable people from pursuing their rights.
Retaliation is illegal. Employers and coworkers
may not retaliate against an individual for speaking up against discrimination
or harassment, or for filing a discrimination charge, testifying, or
participating in any way in an investigation, proceeding, or litigation under
Title VII. However, in 2015, the federal government found that 44 percent of internal discrimination complaints were
for retaliation.
Victims of harassment are often junior employees
or low-wage workers who desperately need their job but could be easily
replaced. Job insecurity reinforces the power dynamic that is often at play in
situations of harassment because victims cannot afford to be out of work while
they hope for justice in a legal claim.
But even when the response to a harassment claim
falls short of illegal retaliation, more subtle forms of reprisals and
alienation can still take place. Employees who report offensive behavior may
find themselves socially ostracized by coworkers, left out of important
decisions, and quietly bypassed for opportunities. Especially if the harasser
is in a position of authority or well-liked, the victim may be blamed not only
for the harassment, but for harming the perpetrator and destroying cohesion in
the workplace.
The risks of reporting harassment are in fact
very similar to the results of sexual harassment—reduced opportunities,
increased stress, and decreased productivity. The significant difference is
that reporting opens the possibility of putting an end to the harasser’s reign
of terror.
How can you protect yourself?
Despite the risks, anyone who is experiencing
sexual harassment should speak up and directly tell the harasser that their
behavior is unwelcome. It’s important to establish, unequivocally, that the
behavior is unwanted and that the harasser was aware the behavior was
unwanted—a critical component of illegal harassment.
Careful documentation of every incident is also
vital. Include the time, place, and circumstances surrounding the behavior, as
well as any witnesses and what actions, if any, were taken in response. This
can help you prove to yourself that it’s not “all in your head” before you take
action, and provides a record to support your case in the event of legal
action.
Before taking legal action, you should make an official complaint to your
employer’s human resources department or through the company grievance system.
If this is ineffective, the next step is to file a complaint with the EEOC and
the agency that enforces your state’s anti-discrimination laws. The EEOC will
issue a “right to sue” letter, which allows you to file a lawsuit against the
harasser and your employer for sexual harassment under Title VII of the Civil
Rights Act.
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