What Would You Do If It Sexual Harassment Happens To You And What’s It Going To Take To Stop?

Shoot Date: 
Wednesday, October 11, 2017

There's no shortage of high profile sexual harassment cases like Bill Cosby, Bill O’Reilly, Roger Ailes or Harvey Weinstein, and certainly millions involving average folks we never even hear about. So what would you do if it happened to you or someone you love? We've got you covered. Here with what you need to know is Shari O

Let's begin with the high profile cases we do hear about. Because it seems they have a lot in common that probably applies to what average folks like us might also see if the 'real world.' What does a sexual harassment situation typically look like?

HARASSERS

  • Patterns/Power
  • Promises/Threats
  • Environment/Silence
  • Senior Management/Settlements
  • Intimidation/Credibility

Not always, but oftentimes, if someone is being sexually harassed at work, they're not the only one. That's because harassers often times have a pattern. They're typically in a position of power. They often use that power to promise benefits like raises, special projects or promotions if the victim goes along or threaten or imply negative consequences, like demotions of being fired if she doesn't. Sexual harassers can be men or women, but because men are more often in those positions of power, they tend to more often be men. And this behavior often impacts the entire environment. Harassers tend to be bullies who foster a more fearful work environment, sort of a code of silence. In the case of these high profile cases, other in power are aware or suspect these things are or may be happening and participate in the cover up or code of silence. In those cases, you may see women leave abruptly and hear rumors of settlements. Once a harasser is caught, victims will typically say they never reported it because they were afraid of negative repercussion and feared no one would believe them. And of course harassers typically count on this fear and intimidation. One of the biggest problems is these organizations are legally allowed to force victims to sign non disclosure agreements if they accept a settlement. And many employment agreements contain confidentiality language. So victims just can't talk about it which perpetuates the silence.

Aren't there laws protecting workers against sexual harassment?

LAWS

  • Quid Pro Quo
  • Hostile Work Environment
  • Behavior/Unwelcome/Results/Position

Yes, generally there are two types of sexual harassment claims: Quid pro quo sexual harassment when employment decisions – like promotions, assignments, or keeping your job – are based on your willingness to submit to the sexual harassment such as
sexual advances, requests for sexual favors, or other conduct of a sexual nature is when submission to such sexual conduct is explicitly or implicitly a term or condition of employment or submission or rejection of the sexual conduct is the basis for employment decisions. And Hostile work environment claims, when sexual harassment makes your workplace environment intimidating, hostile, or offensive such as sexual advances, requests for sexual favors, and other verbal sexual conduct when the conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or the conduct creates an intimidating, hostile, or offensive working environment.

So the law requires a certain type of behavior. Specifically, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Sexual innuendos and comments, or sexually suggestive jokes may be sexual harassment in some contexts. touching or brushing against a person, or displays of explicit material may be sexual harassment.This can include offensive remarks about a person’s sex and it doesn't even have to be directed at you, as long as it results in impacting you. For example, it is illegal to harass a woman by making offensive comments about women in general. But the law does require that this behavior be unwelcome. So of course one of the first things a harasser will say is that the victim welcomed this behavior or at least did not object.

And the law requires that this behavior produce certain outcomes. For example, when it results in an adverse employment decision (such as the victim being fired or demoted) or 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. In other words, simply off color comments may not meet that threshold.

Something a lot of folks don't realize is the harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

If it's so hard to bring these cases, the million dollar question then is what should you do if this happens to you?

WHAT TO DO

  • Document
  • Grievance System
  • Employer: Policy/Environment

Unfortunately the laws often don't protect victims for a few reasons. Perhaps first and foremost is what we just discussed. Most of us need our jobs. We're not looking for a law suit. And the reality is, in some professions if you sue or even claim sexual harassment, you risk that impacting your ability to find another job. You also do risk people not believing you. Believe it or not, especially other women. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation but unfortunately we know retaliation is not uncommon and is also difficult to prove because victims often respond in ways that give the bad guys excuses for firing them.

It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available. And continue documenting because it's also illegal to retaliate against someone for bringing a claim like this. So even if you can't prevail on the initial claim you may be able to prevail on retaliation.

Courts consider several factors to determine whether an environment is hostile, including whether the conduct was verbal, physical, or both, how frequently it was repeated, whether the conduct was hostile or patently offensive, whether the alleged harasser was a co-worker or supervisor, whether others joined in perpetrating the harassment, and whether the harassment was directed at more than one individual.

Quid pro quo cases may be considered sexual harassment when linked to the granting or denial of employment benefits. On the other hand, the conduct would have to be quite severe for a single incident or isolated incidents of offensive sexual conduct or remarks to rise to the level of a hostile environment. Hostile environment claims usually require proof of a pattern of offensive conduct. Nevertheless, a single and extremely severe incident of harassment may be sufficient to constitute a Title VII violation. A general rule of thumb is that the more severe the harassment is, the less likely it is that the victim will be required to show a repetitive series of incidents. This is especially true when the harassment is physical.If the harassment is a hostile work environment, then the employer can also be liable, but it has a possible defense, if it can show that the employer exercised reasonable care to prevent and promptly correct any harassment and the employee unreasonably failed to take advantage of the company's preventive or corrective measures. The employer is liable if it knew or should have known about the harassment unless it took immediate and appropriate corrective action. Significant monetary damages are possible and not uncommon in sexual harassment cases. Victims of harassment may receive both compensatory and punitive damages. Victims of sexual harassment can recover remedies including back pay, hiring, promotion, reinstatement, front pay (compensates the victim for anticipated future losses), compensatory damages (emotional pain and suffering), punitive damages (damages to punish the employer), and other actions that will make an individual "whole" (in the condition she or he would have been but for the harassment). Remedies also may include payment of attorneys' fees, expert witness fees, and court costs.

If you're an employer or in a position with your organization to influence, the best approach is to prevent sexual harassment in the first place by making it clear that your organization won't tolerate this, providing a safe fair method for victims to seek redress, and being diligent in your hiring practices and training.

The sad thing is nearly two-thirds of men and women say people should take extra caution around members of the opposite sex at work, and about a quarter think private work meetings with colleagues of the opposite sex are inappropriate, according to a poll conducted in May by Morning Consult for The New York Times. The effect on women’s careers is quantifiable, research has found. 64 percent of senior men and 50 percent of junior women avoid solo interactions because of the risk of rumors about their motives. Good sponsors also give candid, difficult feedback, and women are less likely than men to receive it.

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