The Sexual Harassment Handbook

Everything You Need to Know Before Someone Calls a Lawyer

Linda Gordon Howard

• Publisher: Career Press
• Year: 2007
• Print ISBN: 9781564149129
• eBook ISBN: 9781601637994
• Topic: Negocios y empresa
• Subtopic: Gestión de recursos humanos

Do you think you have to put up with inappropriate sexual behavior to get ahead in your career? Or have you been the victim of sexual harassment and don't know to do about it? Are you concerned that anything you do or say could be interpreted as sexual harassment? What are the rules and boundaries?

The Sexual Harassment Handbook is the first book that gives you the insight to assess a sexual situation on the job and take effective action, before the lawyers are called in. Many situations involving sexual harassment can be prevented or resolved if you recognize what's happening and know what to do. The Sexual Harassment Handbook answers questions such as:

• What is the main reason people sue over sexual harassment?
• Can men be sexually harassed?
• Can I be harassed if I am a manager or supervisor?
• Why is dating a subordinate almost always a bad idea?

Part I

• • •

The Reality of Sexual Harassment

1
Power, Sex, and Romance on the Job

During a workshop on sexual harassment prevention I was leading for employees of a Fortune 500 corporation, one of the participants, an engineer, spoke up. He said, “I spend more time at work than I spend anywhere else. In a 24-hour day, I spend eight hours sleeping, half an hour dressing, two hours traveling, an hour eating dinner, and nine or 10 hours here at work. Not counting weekends, I have only about two hours a day to meet women and socialize. I’m a single guy. Where am I supposed to meet women to go out with, if I can’t meet them at work?”

He had a point. Dating at work is not a new phenomenon. Romantic liaisons, both happy and unhappy, are common in the workplace. We all have seen examples of successful romantic relationships that developed at work. Managers marry other employees; college professors marry colleagues.

When men and women work together, sexual interest and sexual advances are inevitable. Romance and sex on the job work for some people.

On the other hand, abusive relationships and exploitive situations also exist at work. Somewhere between are situations that are neither happy nor seriously injurious. Sexual harassment comes in a wide variety of behaviors. Women find unwelcome pornographic pictures and cartoons on their desks. Studies show that 95 in 100 women workers receive sexual material at work, such as letters, pictures, telephone calls, and e-mails. Two thirds of the people responding to one study said they had been sexually harassed on the job. Other studies also show that nearly half of the employees who believe they’ve experienced sexual harassment say or do nothing about it.

Laws that prohibit sexual harassment in the workplace require workers to separate different kinds of sexual interactions. It seems like a simple thing to do, but often, it is not simple at all.

Several years ago, I met a woman I’ll call “Joan” at a friend’s baby shower. Joan told me the following story:

“I used to work as a secretary in a small real estate office in New Jersey. Just the two of us worked there, the real estate agent, who was my boss, and me. I had worked for him for about a year when one day, out of the blue, he asked me to come into the conference room and watch a movie with him. It was a strange request. There was never any reason for me to go into the conference room. He had meetings in there. I asked him what kind of movie it was. I thought it might be a real estate movie or a training film.

“He said, ‘Well, you know. I think you’ll enjoy it.’

“I still didn’t know what he was talking about, so I asked him again, what the movie was.

“He said, ‘Come on, Joan. We’ll have a little fun. This will loosen you up a little.’

“Suddenly, I knew he was talking about a pornographic movie. I couldn’t believe it. I was so shocked and embarrassed that I left and never came back to work. To this day, I wonder what I did to make him think that I would do anything like that. I was single then. I’m married now, and I never told my husband about this guy. I never told anyone before now.”

• • •

Joan’s experience is typical. The person who approached her was her direct supervisor. Nearly one in every two harassers is the direct supervisor of the person he or she harasses. Joan asked for information about the specific nature of the movie, but her boss did not give her a straight answer. We’ll never know whether it was a pornographic movie. The vague invitation would allow her boss to say, truthfully, that he never invited her to view a porn movie. Had Joan insisted on knowing what kind of movie it was, she risked accusing her boss of making an improper advance. The experience had a big impact on her. She left her job without saying anything to her boss about her embarrassment and upset.

Joan never reported the incident to any agency or professional group. Nearly half of victims of sexual harassment say or do nothing. Joan continues to wonder what she could have done to cause her boss to think that she might have been interested in watching an X-rated movie with him. People who experience sexual harassment sometimes leave their jobs out of embarrassment or fear. Many of them are left with a nagging guilt that they did something to encourage the behavior.

The point is that Joan’s boss was serving his personal agenda (“to loosen her up”) and would not be clear about what he wanted, leaving Joan intimidated and upset.

Joan’s experience took place in a small office in New Jersey, but women in large corporations have similar experiences on a daily basis. For example, women in a major U.S. corporation complained in a 1995 lawsuit that they were regularly required to wear skimpy clothing to office parties, where they were expected to entertain clients and watch pornographic movies. Secretaries in the law firm of Baker and McKenzie endured the touches and pinches of a senior partner for years, while the management of the firm allowed the behavior to go on unchecked. Ultimately, both firms paid millions of dollars in legal fees and settlement costs after employees brought lawsuits.

What makes sexual harassment different from romance or harmless social conversation? The main difference is that romantic behavior is agreeable and pleasing to both people. There is usually a desire to please one another. Generally, both people respect and accept one another’s wishes. In work situations, however, one party is often not free to object to another’s behavior. In the relationship between a supervisor and a subordinate, the subordinate must follow the instructions of the supervisor or risk negative consequences, such as losing the job. We expect the supervisor to make demands that are related to business.

Problems arise when the supervisor has a personal agenda, unrelated to his or her business responsibilities. The supervisor who makes demands that serve a personal agenda and is not interested in the subordinate’s wishes risks abusing the subordinate. Joan found herself in this type of situation. Another type of problem arises when one employee, not necessarily a supervisor, makes comments or engages in other behavior toward another employee that is offensive or disruptive.

A third type of problem arises when a social relationship between two employees ends and one of them attempts to resume the relationship over the other’s objection. Groups of workers who resent a particular employee create a fourth type of problem when they act out their hostility or amuse themselves at the resented employee’s expense. Examples include men who resent the presence of a woman in a mostly male workplace, and white employees who resent the presence of a black employee in a mostly white workplace.

We could conclude that, if employees are having personal problems, it is nobody’s business but their own. In the 1970s and early 1980s, before some forms of sexual harassment were widely considered to be a violation of the law, many judges characterized abusive sexual demands by supervisors as “personality conflicts” and “relationships gone bad.” The fact that many relationships end happily leads some people to say that employers and the courts should let people resolve these problems themselves. Most of us know someone who has experienced unacceptable behavior at work and survived the situation without serious repercussions.

There is nothing new about men imposing unwanted social or sexual attention upon women. There is also nothing new about women having to put up with sexual attention to keep their jobs, or even sometimes using sex to obtain benefits they could not otherwise obtain. There is also nothing new about people in authority, whether men or women, misusing their authority for personal gain.

Major changes in the law and in the culture of the workplace over the last five decades have required us to change our views of situations at work that have traditionally been considered to be personal issues. First, and most important, the law has changed dramatically. Federal, state, and local laws now protect workers from discrimination based on sex, race, religion, disability, and other characteristics. These laws are intended to remove obstacles to employment for our nation’s workers. These laws interfere with how employers run their businesses and treat their employees in areas where they once had nearly complete freedom. The law also makes employers responsible for their employees’ working conditions in ways that they have never before been responsible.

The second change is the demographic makeup of the American workplace. Women are now nearly one in every two American workers. This demographic shift is having a major impact on the social climate and the social reality in American workplaces.

The major law prohibiting unlawful discrimination in employment is Title VII of the Civil Rights Act of 1964 (commonly referred to as Title VII). Title VII prohibits employers from discriminating against employees, or treating them differently, based on race, color, religion, sex, or national origin. Title VII, together with the state and local laws that are modeled after it, granted workers significant new rights. Because women and ethnic racial groups were traditionally excluded from many employment opportunities, women and minority workers stood to gain the most from Title VII. Another important law enacted one year earlier, the Equal Pay Act of 1963, prohibits paying men and women different wages for jobs that require equal skill, effort, and responsibility, unless the difference in pay is based on a factor other than sex.

Today, an employer who treats women differently than men, simply because they are female, is violating the law. For example, before Title VII and the Equal Pay Act of 1963 became law, an employer could lawfully refuse to hire a woman, or hire her at a lower salary than a man received for doing the same work, because she was female. Now, an employer also violates the law if he or she treats a woman differently than a man because she is pregnant, married, has young children, is not attractive enough, cannot type, or for any other reason.

Title VII also covers working conditions and how workers are treated. If women have to endure different working conditions than are imposed on men, the employer can be held responsible for allowing discriminatory working conditions to exist. Under Title VII, social or sexual behavior directed toward an employee because of her or his sex or gender creates discriminatory working conditions if the behavior affects the employee’s job.

Laws prohibiting sexual harassment define sexual harassment as “unwanted” sexual behavior that affects an employee’s experience of the workplace in certain defined ways. When unwanted sexual behavior affects working conditions, it becomes an obstacle to employment based on the employee’s sex.

Different treatment of women, sometimes demeaning and derogatory treatment, is deeply ingrained in our culture. Traditionally, how we speak to, treat, and regard women has been considered to be within the arena of private behavior. The need to comply with Title VII and other antidiscrimination laws has caused significant shifts in American workplace practices, priorities, behavior, values, sensibilities, and language.

We resist change, but the resistance to change in the area of discrimination, particularly in the area of sex discrimination and sexual harassment, has been different.

The law of sexual harassment attempts to regulate behavior that many people tend to consider to be beyond the reach of the law. Some employees have reacted with confusion, resentment, resistance, and fear. Like the engineer who wants to find women to date, men want to know: How can the law say I can’t ask a woman for a date? Where do you draw the line? How far can I go? Like Joan, who was shocked by her boss’s invitation to view a pornographic movie, women want to know: What can I do when my supervisor makes inappropriate advances?

Behaviors that have long been out of reach of laws and regulation are suddenly the subject of million-dollar lawsuits. Today, American businesses are reeling from the costs of unchecked sexual behavior in the workplace. Laws prohibiting sexual harassment have received varied reactions. Some employers now require employees to sign a disclosure statement when they intend to enter a sexual relationship. Other employers prohibit their employees from engaging in sexual or romantic relationships during their employment with nonfraternization policies. Under so-called “zero tolerance” policies, employers impose maximum penalties for all violations of their antifraternization and sexual harassment policies. Some men fear that complimenting a woman’s hairstyle or approaching her socially in any way will jeopardize their jobs.

At the same time, a dramatic increase in the number of working women is altering the social experience of the American workplace. At an earlier time in our country’s history, many women (though certainly not all) could simply walk away from an unacceptable situation because their salary was supplemental, and not the primary income in the household. Now, women have much more to lose if they walk away. As more women enter the workforce, fewer of them stay at home under the protection of their families until they marry. And more married women than ever before are working outside the home. The presence of larger numbers of women tends to give individual women greater confidence to complain about unacceptable behaviors at work.

In many sectors of the economy, women have moved into positions of power and influence in which they can voice the concerns of women workers. Women are now working in nontraditional fields and positions from which they were previously excluded, such as law, medicine, finance, journalism, and construction. Women can now be found on corporate boards, in chief executive offices, among business owners, and in supervisory positions. The women’s movement gives a public voice to concerns of working women, making it difficult for lawmakers and employers to ignore inequities.

Ironically, women in positions of supervisory power are able to impose unwanted and offensive behavior on their male and female subordinates just as men in supervisory positions are able to do. Women supervisors can threaten or imply the loss of a job, job benefits, or career advancement. This phenomenon allows female supervisors to sexually harass men. Even though studies show that the majority of workers who experience sexual harassment on the job are female, men can be sexually harassed. Anyone who works for someone else can be sexually harassed.

We could end sexual harassment quickly and easily if we all applied three simple rules that we all should have learned as children:

1. Leave anyone alone who doesn’t want to play.

2. Don’t be mean.

3. Don’t pick on little kids.

These are great rules, but they are not always easy to apply in practice.

Rule Number One, “Leave anyone alone who doesn’t want to play,” should be an easy rule to follow. Rule Number One boils down to listening to other people and complying with their wishes. If you hear anything other that an unambiguous welcoming signal, then you cease and desist. Following Rule Number One comes with a couple of wrinkles: You have to be interested in the other person’s wishes, and the other person has to say whether he or she wants to play.

Unfortunately, people aren’t always direct about whether they want to play. Sometimes they don’t want to “rock the boat,” hurt someone’s feelings, or displease someone. Sometimes, they don’t know whether they want to play. They are equivocal; they don’t say yes or no. They say something that can be misinterpreted or taken either way. Sometimes, they say no and it is heard as yes. Of course, there are also people who don’t take no for an answer even if it is a clear, unmistakable no.

Rule Number Two, “Don’t be mean,” can be even more difficult to apply. Most of us are not mean to others on purpose. However, some of us can be very mean. We can hurt, offend, intimidate, and upset other people. Sometimes, we do it intentionally. Often, we don’t notice or care about our impact on other people. Some people are mean, believing they have no control over themselves. Under sexual harassment law, the impact or effect of behavior is just as important as the purpose of the behavior. I have often heard people accused of sexually harassing a coworker say, “I didn’t mean anything by it; I was just kidding around.” The intentions don’t matter if the effect of the behavior is to offend, intimidate, or humiliate the other person.

The humiliated employee is sometimes reluctant to say anything. (See Rule Number One.) He or she is stunned, hurt, embarrassed, and completely disbelieving that anyone could treat another person in that manner. The offending coworker, in his or her own world, thinks the joke was funny or his or her offer tempting. He or she considers the rejecting person to be “super sensitive,” “a prude,” or “in a bad mood today.” In the sexual harassment arena, it doesn’t matter that the behavior was unintentional. The toughest part of applying Rule Number Two is that mean is in the eye of the beholder.

Rule Number Three, “Don’t pick on little kids,” is probably the toughest of the three rules to apply in real life. Sexual harassment is less about sex than it is about power. Nearly one in every two harassers is the direct supervisor of the person he or she is harassing. Abuses of power by supervisors are the most egregious form of sexual harassment and among the most difficult to address. Most supervisors t...

Table of contents

• Cover Page
• Title page
• Copyright Page
• Acknowledgments
• Contents
• Introduction
• Part I: The Reality of Sexual Harassment
• Part II: Shifting the Course of Events
• Part III: Creating a Culture of Respect
• Appendix: Self-Test
• Index
• About the Author