What Constitutes Sexual Harassment at Work?

Is It Really “Sexual Harassment” or Is It All in My Head?

The #MeToo movement revealed that sexual harassment is much more pervasive than many people realized or wanted to admit. When women (and men) started stepping forward to tell their stories, we discovered that sexual harassers can target famous movie actresses, politicians, and hotel maids alike. For too long, women have felt pressure to stay silent about their experiences. Many worried that they would lose their jobs or be blackballed in their industries if they spoke up. Others questioned whether their experiences were even legitimate.

Women, please excuse the generalization, but we tend to be people pleasers. We don’t want to “rock the boat.” It is very easy for us to downplay our own worries and to question our own judgment. It probably will not surprise you that according to research, women consistently rate their competence lower than reality, while men rate their competence higher than reality.[1] When it comes to sexual harassment, these tendencies can lead women to not speak up or to assume they are over-reacting.

So, let’s look at what sexual harassment really is, what constitutes sexual harassment, and what you can do if you believe you are the victim of sexual harassment in the workplace.

What Is Sexual Harassment?

Sexual harassment is any type of discrimination of a sexual nature. Many of us assume that sexual harassment requires physical touching, a request for sex in exchange for a promotion, or lewd behavior like unwanted kissing. The truth is, sexual harassment covers a much broader scope. Offensive jokes, comments about looks, and questions about sexual orientation all constitute sexual harassment.

Anyone can be a victim of sexual harassment and anyone can be a harasser. A female department head can sexually harass a young male subordinate. A male vendor can harass a female client. A female co-worker can sexually harass her female boss. Even though the #MeToo movement has highlighted the stories of countless women, it has also given the spotlight to men, like ex-linebacker and actor Terry Crews[2] and 90s heart throb Brendan Fraser[3] who both spoke out about being touched inappropriately.

Quid Pro Quo Sexual Harassment

Perhaps the most flagrant type of sexual harassment is the quid pro quo. Harvey Weinstein was a master of this technique, requesting sexual favors from women in exchange for movie roles and preferred treatment. The flip side of quid pro quo harassment is when a harasser threatens or implies that a victim will be punished for not complying, whether that means she will be passed up for a promotion, taken off a big project, or fired from her job.

Quid pro quo often features a harasser who has power over the victim. This could be a direct superior or someone in a position to grant contracts or other types of favors, or someone who can negatively affect the victim’s position or reputation.

Hostile Work Environment

The second primary type of sexual harassment includes any type of activity that creates a hostile work environment. This category is purposefully broad because sexual harassment can take many forms. It can include things like:

• Telling off colored, sexualized jokes or stories in the workplace
• Appraising a person’s appearance
• Starting rumors about a person’s sexual orientation, sexual preferences, or sexual exploits
• Showing sexualized images
• Writing sexually explicit texts or emails
• Inappropriate touching, patting, pinching, rubbing, hugging, kissing, or rubbing up against a person

You can be the victim of sexual harassment even if you are not directly targeted. For example, if you share an office with a co-worker who regularly watches pornography on his computer, he is still creating a hostile work environment for you.

Gray Areas of Sexual Harassment

In some cases, sexual harassment is obvious. If a drunken co-worker follows you into a bathroom and pulls down his pants, that is a pretty strong case for sexual harassment. If your boss invites you to her house, opens the door in a bathrobe, and asks for a massage, it’s time to leave that situation immediately.

Other situations are not so clear. A male co-worker who compliments your appearance and can’t stop staring at your chest. Is that sexual harassment? What about the CEO who likes to give hugs? Should you ignore the coworker who talks about his hookups the breakroom, because everyone else loves hearing his stories? What if a manager in another department asks you out on a date?

Not every case of sexual harassment is cut and dry, and there is a definite subjective component to it. One woman may not mind getting hugs from a male CEO, while it may make a different woman uncomfortable.

In these situations, the solution is to speak up. Let the CEO know that the hugs make you feel uncomfortable. Same goes for the oogling co-worker and that guy who tells sexual stories in the breakroom. If you get asked out by someone and aren’t interested, politely but clearly decline. (Do not  offer an inconclusive excuse, like “I’m busy this Friday.” It leaves the door open for another date request in the future.)

As long as the behavior stops when you call it out and Romeo does not retaliate in response to your rejection, you can quickly and efficiently clear up these difficult workplace issues.

If the harassing behavior continues or increases, or if you are punished for mentioning it, then the gray area can shift into a clear case of sexual harassment.

What to Do If You Are Being Sexually Harassed at Work

If someone is harassing you in the workplace then speak up. Don’t second guess yourself or talk yourself out of “making a big fuss.” This person is creating a hostile work environment and that behavior needs to stop immediately. Point out the behavior to the person, explain that it makes you uncomfortable and isn’t appropriate, and ask them to stop.

If the behavior continues, speak to your supervisor, the harasser’s supervisor, or your human resources department. If your supervisor is your harasser, then go straight to human resources or reach out to your supervisor’s boss.

If the person’s behavior is threatening or illegal, go straight to human resources and consider also filing a police report.

Once you report sexual harassment to your supervisor or your HR department, your employer should investigate your claims and take action to ensure that you are working in a safe environment. That may mean requiring your harasser to go through sexual harassment training, other discipline or outright firing him.

If your company does nothing and the behavior continues, your next step will be reaching out to an attorney to file a claim of sexual harassment against your abuser and your employer for enabling the harassment.

Hopefully, your employer will take action quickly, but as we have seen in so many #MeToo stories, many companies ignore women’s complaints or try to sweep problems under the rug.  Often, harassers are not punished and sometimes even continue climbing the ranks of a company.

Just in case you will eventually need to turn to the legal system, document your experience as thoroughly as possible to help build your case:

• Make a note of the date and time of each instance of harassment. Detail what happened and how it made you feel.
• Save text messages, emails, and notes.
• Detail all your efforts to stop the harassment. Note when you told your harasser to stop, when you reported the behavior to your supervisor, and when you filed a complaint with HR.
• Note any witnesses to the incidents.
• Note if anyone else in the company has also been harassed by the abuser.

If you live in San Diego and want to seek justice from your sexual harasser and an employer who allowed a hostile work environment to continue, please contact me to schedule a consultation. I can help you determine if you have a strong sexual harassment case and explain your legal options.

[1] https://www.forbes.com/sites/85broads/2011/04/14/why-is-it-that-women-are-seen-as-less-competent/#57f82bfd394d

[2] https://www.washingtonpost.com/news/morning-mix/wp/2017/11/30/the-lament-of-actor-terry-crews-even-a-hulking-ex-linebacker-can-be-sexually-harassed-in-hollywood/?utm_term=.0558f69bf224

[3] https://www.gq.com/story/what-ever-happened-to-brendan-fraser