Grinning slyly, a coworker beckons you into his office. He says he has something for you to look at. You round his desk to take a look at the material he’s indicated, then step back — revolted, angry, and embarrassed. It’s pornography. He’s called you over to get your reaction to magazine photos of nude women in sexual poses. And he’s standing there enjoying your distress.
There’s another scenario to think about: Every time you ask for a raise, your supervisor says he’ll consider it, but when are you two going to go out for that drink he’s been mentioning?
These are examples of sexual harassment in the workplace. Such harassment covers a range of activities, from offensive jokes to repeated unwelcome requests for sexual favors. As the #MeToo movement has demonstrated, it can include any unwelcome sexual advance or behavior that interferes with your ability to work, and it can come from both co-workers and the people you work for.
The federal civil rights code divides sexual harassment on the job into two types, according to Equal Rights Advocates, a women’s public interest law center in San Francisco. Quid pro quo — a Latin term meaning “this for that” — occurs when a boss offers benefits or threatens your working conditions based on how you respond to his (or her) sexual advances. Hostile environment harassment, like the example of the co-worker with lewd photos, occurs when the environment becomes sexually aggressive enough to interfere with work. Comments about your body, repeated sexual remarks, pornographic pictures on display, and touching or grabbing may create a hostile work environment.
Wearing revealing or even inappropriate clothes to work does not mean that an individual welcomes harassment. In fact, revealing clothing has been considered irrelevant in these cases. But the behavior does not qualify as sexual harassment, however, unless it is unwelcome and repeated. Two people flirting with or dating each other does not add up to sexual harassment.
How widespread is sexual harassment?
A 2018 national survey found that 80% of women had experienced sexual harassment. The Harvey Weinstein scandal — in which the Hollywood director was accused in 2017 of harassing and/or assaulting numerous women, sparked a national reckoning that culminated in the #MeToo movement, in which hundreds of thousands women who had been harassed or assaulted expressed solidarity with other survivors on social media. The issue gathered steam the next year, when Supreme Court nominee Brett Kavanaugh was accused of sexual assault by several women,including a Stanford professor, evoking memories of college professor Anita Hill testifying in the 1990s that she was sexually harassed by her then-boss, Clarence Thomas, who also went on to be appointed to the U.S. Supreme Court. Although Kavanaugh went on to join the Supreme Court as well, some other prominent men accused of sexual harassment and/or assault of multiple women — including Weinstein and actor Bill Cosby — were convicted on several counts and sentenced to prison.
But those are high-profile cases. What goes on quietly in offices, construction sites, restaurants, college campuses and scores of other workplaces is harder to track.Working Women magazine reported that this form of employee harassment costs a typical Fortune 500 company $6.7 million a year in absenteeism, low productivity, and employee turnover.
The range of sexual harassment is quite broad, says Amy Lowenstein, director of the Women’s Rights at Work project, part of Citizen Action of New York. Sexual harassing behavior runs the gamut from a boss repeatedly asking a woman for a date after she has rejected him to being sexually assaulted by a coworker. Although the victims are more likely to be women and the vast majority of lawsuits have been filed by females, men have reported on-the-job sexual harassment as well.
Can sexual harassment harm your health?
Definitely. Continued incidents of sexual harassment can damage your physical and emotional health. There is a range of psychological, emotional and physical consequences stemming from harassment on the job. Some victims have suffered from hyper-vigilance, acute stress disorder with symptoms including heightened anxiety, and dreams about the trauma, says Dr. Don Weatherley, associate psychology professor at the University of Colorado. Any situation that increases stress also can take a toll on the body physically, resulting in headaches, sleep disturbance, and difficulty concentrating. Job stress can also lead to more serious illness, such as heart disease, musculoskeletal disorders, and depression.
Have there been any major changes in the sexual harassment law since the Anita Hill lodged her complaints against Clarence Thomas in 1991?
Many more sexual harassment cases have been filed each year since Anita Hill’s testimony. In 1998, the U.S. Supreme Court altered the liability standard in the law holding employers responsible for sexual harassment in their companies. In the case of Faragher v. City of Boca Raton, the court ruled that employers are liable for sexual harassment, even if they are unaware of specific incidents of harassment.
This marked a significant change in the law, says Yolanda Wu, staff attorney with the NOW Legal Defense Fund in New York. She says this new standard encourages employers to implement comprehensive policies to prevent sexual harassment. However, the employer may not be found liable if he reasonably tried to prevent these types of incidents or if the victim failed to take advantage of any corrective opportunities in the workplace. In a separate case a couple years ago, the Supreme Court handed down a unanimous decision prohibiting same-sex harassment. Until that time, this issue had been confusing in lower courts, Wu says.
In 2009, the Supreme Court also issued a ruling, in the case Crawford v. Metropolitan Government of Nashville, that makes it possible for workers to sue for retaliation if they are fired after cooperating with a sexual harassment investigation.
Over the last 20 years, in fact, “There has been significant progress in protecting employees from sexual harassment,” according to a summary of a 2018 article in the Yale Law Journal. “Courts have recognized that sexual harassment is perpetrated by and against people of all sexes and genders, takes sexual and nonsexual forms, and is often motivated by bias and hostility, not sexual desire. Yet sexual harassment persists and remains largely unreported. The #MeToo and #TimesUp movements have motivated people to speak out about sexual harassment, but many of those now choosing to speak remain vulnerable to retaliation.” In the author’s view, states can and should expand their protections, noting that California, with its Fair Employment and Housing Act, “serves as an excellent model of the wider coverage and broader protections that state laws can provide to employees.”
What steps should employers take to prevent sexual harassment?
Employers should not assume that there is no sexual harassment in their workplace simply because no complaints have been filed. One study showed that 94 percent of women who are sexually harassed don’t take any formal action. As a preventive measure, employers should establish a written policy outlawing sexual harassment in the company and be sure that all employees read and sign it. The policy should include the grievance procedure, what types of disciplinary action will be taken against the harasser, and possible penalties, which should include the possibility of termination. In the event of a lawsuit, the policy may be used as evidence that the employer provided a reasonable procedure to prevent and correct sexual harassment.
What steps should I take if I am being harassed at work?
First things first — make it immediately clear to the harasser that the behavior is offensive, and you want it to stop. This works surprisingly often, some experts say. If it continues, notify your supervisor. If the harasser is your boss, then you need to go up the chain of command to another supervisor. Also, be sure to obtain a copy of your employer’s policy handbook to determine your rights in the workplace. There may be a grievance procedure outlined for cases of sexual harassment. If so, you can file a complaint with the company.
In sexual harassment cases, fear of retaliation is often legitimate. It may be very difficult for you to complain about the harasser’s behavior. However, the court system deems it important that the employer be notified so he can take action. If you are considering filing a lawsuit, start keeping records of the harassment. And be sure to keep records of all conversations with your supervisor about the incidents so you can prove later that you informed your employer. As an extra precaution, you may also want to confide in a colleague or another supervisor at work.
“Retaliation is a big fear. It’s not uncommon,” says Lowenstein of the Women’s Rights at Work project. Some employees have too much to lose if they make a complaint, she notes. Aside from losing her job, the victim who complains could suffer a form of excommunication from co-workers.
How do I document harassment?
Keep a journal of the incidents with as much documentation as possible. Wu says it’s best to keep the journal at home, rather than at the workplace. It should detail harassing phone messages, gifts or notes. Write down the date, time, name of the harasser, what happened, what was said and the names of any witnesses who may have seen or overheard the episode. Also, be sure to note if you lost money as a result of the incident. For example, you may have been so disturbed by the incident that you had to take the day off from work.
What are the advantages or disadvantages of filing a sexual harassment lawsuit?
A sexual harassment claim, like most other lawsuits, can take years to wind through the overburdened court system. Cases that reach the U.S. Supreme Court may be six or seven years old, and the actual facts of the case may have occurred as long as 10 years ago. These cases also can be extremely costly and emotionally draining for the plaintiff. Filing a sexual harassment lawsuit can be an extremely courageous act. If you are seeking damages for pain and suffering, you may be opening the door to questions from opposing attorneys about your emotional life.
Under the Civil Rights Act of 1991, victims of sexual harassment are entitled to damages for pain and suffering as well as any lost pay. Some women who have sued — even if they had to move on in their careers — say the message sent was worth the struggle.
Women’s Rights at Work, part of Citizen Action of New York http://www.citizenactionny.org
Equal Rights Advocates http://www.equalrights.org
A women’s public interest law center. 800-839-4ERA
Equal Employment Opportunity Commission http://www.eeoc.gov
9 to 5, or the National Association of Working Women http://www.9to5.org
Publisher of self-help legal guides for consumers and attorneys.
Liptak, A. Court Expands Ability to Sue in Sexual Harassment Investigations. New York Times. Jan. 16, 2009. http://www.nytimes.com/2009/01/27/washington/27scotus.html
William Petrocelli and Barbara Kate Repa. Sexual harassment: An Employers Prevention Guide. Nolo Press.
William Petrocelli and Barbara Kate Repa. Sexual Harassment on the Job: What It Is and How to Stop It. Nolo Press.
Florin/Roebig Guide to Sexual Harassment. Florin Roebig Trial Attorneys. https://florinroebig.com/sexual-assault-guide/?
Mizrahi R. Sexual Harassment Law After #MeToo: Looking to California as a Model. Yale Law Journal; 128: 2018-2019.