We feel like we’ve spent the last few weeks in a sobering shadow of #metoo — the hashtag conversation launched by the bombshell news that Miramax bigshot Harvey Weinstein is a sexual predator. As more and more women come forward to share their stories of harassment and assault, some are realizing that personal experiences that brought them shame, guilt, and heartbreak were actually a product of a culture that enables certain predators — and not at all their own fault.
While this social media dialogue casts a spotlight on a critical issue, it doesn’t answer the question of what legally counts as sexual harassment. If you’re in the 25-85 percent of women who have been sexually harassed at work (yes, you read that right), maybe you’ve asked yourself if there were any actions that you could take that wouldn’t permanently damage your career — or wondered what the most likely outcome would be if you lodged a complaint. You might not have even known who to complain to or what the process would be like. These are questions you should never have had to ask, but the good news is there are actual answers.
Defining Workplace Harassment
Candice Blain, an Atlanta-based civil rights attorney and managing partner of Blain LLC, broke down the legal language of sexual harassment laws for us. The first thing to know is that if any workplace claims immunity against sexual harassment lawsuits, they’re lying. “Sexual harassment in employment is made unlawful in all states by federal law,” Blain reveals. It should be noted that the high instances of harassment found in this government-funded study don’t all fall under the heading of “legally actionable harassment.” Since that same study found that sexual harassment tends to be more commonly reported when it’s better defined, let’s talk about what a legally actionable case of sexual harassment could be.
“Hostile environment” harassments are comments, actions, or behaviors that either occur over and over or happen just once but are severe enough to impact your job performance. “An example of this would be a manager repeatedly making lewd or sexually suggestive remarks to the employee for months — or engaging in nonconsensual sexual contact with her,” Blain tells us. This category may seem like it covers a pretty broad range, including anything from offensive water cooler banter to physical violence, but that doesn’t mean the law is vague. As Blain explains, an incident that “could be considered so pervasive or severe as to interfere with the employee’s work would be considered unlawful sexual harassment.”
There’s another kind of harassment that’s called “quid pro quo.” Blain puts it simply: “This occurs when an employer withholds employment-related benefits or alters the terms or conditions of employment based on the victim complying with certain demands.” What’s the difference between quid pro quo and hostile environment? Quid pro quo is usually harassment that comes from a superior or someone else in your workplace who holds control over your position. The harasser’s demands “may be made explicit, or they may just be implied,” Blain clarifies. “An example of this would be an employer refusing to promote female employees unless they are willing to send him selfies.”
If there’s a person at work whose comments are interfering with your professional relationship — even if they are simply giving you a bad vibe — you should start documenting what’s going on. Screenshots of conversations, noting eyewitnesses to your experiences, and keeping contemporaneous notes (legalese translation: recording things as they happen, like you would in a diary) can all help you build a case later on if you need to.
It can be tempting to feel sorry for the person who’s harassing you or to assume that the things that are happening are all in your head. But the truth is that most sexual predators are following a pattern of behavior. The chances of you being their first victim are very low. Listen to your instincts as you observe what’s going on, and don’t feel like you’re the reason any of this is happening. It might help to mentally draw a line in the sand that represents behavior you wouldn’t tolerate if it happened to anyone else. Once that line is crossed, it’s time to defend yourself by reporting what’s going on.
Blain is adamant about the importance of reporting both kinds of sexual harassment: “If a woman experiences sexual harassment in the workplace, it is crucial to report the events as early as possible to a person with management responsibility.” Why is reporting early so important? Waiting could undermine any legal case you need to make in the future. “Under the law as interpreted in many courts, an employer must be given an opportunity to correct and redress any alleged harassment. If the victim does not allow the employer this opportunity, by notifying a manager or the human resources department early enough to be able to stop it, this may negatively impact the victim’s ability to enforce her legal rights later on.”
Many industries in which sexual harassment is most prevalent don’t have HR departments (for instance, service-based industries and minimum-wage jobs). In these cases, Blain says, a woman facing harassment “should report the issue as high up the chain of command as she feels comfortable. This is important because for a company to bear responsibility for stopping and correcting reported sexual harassment, the person to whom the harassment is reported must have managerial or executive responsibility within the company.” In other words, you can’t just complain to any colleague or peer and expect them to be able to address the issue.
Once you do report sexual harassment, what should you expect? Realistically, it’s hard to know. “The major problem with sexual harassment cases is that the best outcome is still never as good as the victim’s life would have been if the harassment had never occurred in the first place,” Blain admits. “A victim who brings a claim of sexual harassment should expect that the case may take some time to resolve, from several months to even years.”
In the meantime, you’ll probably need to stay put at your current place of employment, even if things grow uncomfortable due to your report. “If a woman files a sexual harassment claim, I would advise her to avoid quitting her job — unless she feels she has no choice,” says Blain. Be aware that it’s completely illegal for you to be fired on the basis of reporting sexual harassment… but it still does happen. Victims of sexual harassment should be mindful to record and continue to report anything that could be construed as retaliation. And when does a lady need to lawyer up? Probably sooner than you’d think. “If the victim feels the company is not acting to stop ongoing harassment or if she believes she is experiencing retaliation because she reported harassment, she should immediately contact an attorney,” Blain recommends.
In best-case scenarios, women do win monetary settlements against those that have harassed them. In some cases, justice takes the form of a predator getting fired or removed from authority. But in all cases in which sexual harassment is reported and action is taken, women win. Correcting a culture in which women aren’t afforded fair treatment will take time — and all of our voices — to achieve. Almost all of us have found ourselves whispering, “Me too.” But if we continue to raise our voices, maybe our children won’t have to.
How has #MeToo empowered or enabled you to speak up about sexual harassment? Share your story with us on Twitter @BritandCo.
(Photos via Getty)