Do I Have to Put Up with This?
This is the first in a series of posts on workplace sexual harassment. Our Legal Advocacy team will talk about dynamics of power and control as well as legal definitions. In future posts, they will cover legal protections and options, the active bystander role, and how BARCC supports survivors and their loved ones. Content note: descriptions of workplace sexual violence.
Many of us spend a lot of time at work. We depend on it for income to support ourselves and our families. And we often depend on connections at work not only for references and future work opportunities but because colleagues are important social connections for many of us. When sexual harassment makes work unsafe, these factors can make it difficult to know what to do.
People facing sexual harassment and assault at work often think: “Should I tell? Do I have to put up with it because I need to pay my rent and feed my children? Will I be believed or supported? Will I risk being fired or ostracized? Will anyone else hire me?”
Thanks to #MeToo and the many media reports of powerful men being forced out of their jobs when survivors have come forward, we all know now, if we didn’t before, that workplace sexual harassment is pervasive and destructive. But the #MeToo movement is not necessarily a remedy for people dealing with sexual harassment and abuse at work. For some survivors, it is safe and empowering to come forward and name the harassment and the harasser. For others, there is peril in taking that step — and for them, empowerment and control might mean finding other options to protect themselves, their families, and their futures. Some, if they can, will leave the organization rather than confront these uncertainties.
It’s also important to focus on the cultural context in which workplace sexual harassment has thrived. Our work communities mirror our larger communities, which are part of a culture that has enabled sexual violence to persist. That’s why it will take community efforts — as well as comprehensive efforts from organizational leadership — to prevent workplace sexual harassment (more to share on that in one of our future posts!).
Dynamics of workplace sexual harassment
There are many theories about why harassers harass, but in listening to survivors, we know that the dynamic of power is as prevalent in workplace sexual harassment as it is in other forms of sexual violence.
Harassers target others who they perceive as vulnerable and less “believable.” They use this vulnerability to exercise power over them. The power comes in many forms, and it is not just about the power of a person’s position. The offender does not have to be the boss; their power may come from their social standing within the organization — they could be a peer who has been in the organization a long time, who socializes with higher-ups, and who dominates the social tone of the workplace.
Offenders often get away with the harassment because the power imbalance leaves the targeted employee feeling trapped and uncertain about how or if to resist or to speak out. Most survivors express that they tried their best to avoid the harasser. When they couldn’t, and harassment or abuse occurred, they tried to downplay or “simply” endure the harassment. Offenders exploit power; it is so pervasive that studies estimate that 70–90% of the time sexual harassment occurs, it isn’t reported to the employer or a fair employment agency.
Workers who are at higher risk of all types of workplace harassment are those who the offender believes are vulnerable due to their standing in the company or based on gender, race, or other personal factors. We see that these workers face greater rates of sexual harassment, confirming this power dynamic. In general we see the highest risks among low-status workers; those that lack legal citizenship documentation; teens and young adults; lesbian, gay, bisexual, transgender, and queer people; and in workplaces that are physically isolated or dominated by a different gender.
Many survivors of workplace sexual harassment, like survivors of other forms of sexual violence, want most for the behavior to stop. They want the harasser to leave them alone and not affect their work negatively. They want to work in safety and be respected. Often, the formal complaint processes within the workplace (through human resources or an employee assistance program) or through an outside agency (the Equal Employment Opportunity Commission, for example) don’t provide the timeliness or privacy that survivors seek. Smaller businesses may not even have a human resources department or staff person. The combination of the abuse of power by the harasser and the pressure of cultural expectations can create a sense of isolation and powerlessness for survivors of workplace sexual harassment. In order for workplaces to address this challenge, it is critical that workers be informed of confidential external resources, such as BARCC’s Legal Advocacy program.
State and federal law prohibit sex discrimination in the workplace. Sexual harassment is considered to be a form of sex discrimination, and in Massachusetts is enforced by the Massachusetts Commission Against Discrimination (MCAD). In general, there are two types of workplace sexual harassment, which we define in the sections below: “quid pro quo” and “hostile environment.” And keep in mind: if your experience doesn’t fall under the legal definitions of workplace sexual harassment, that doesn’t mean you haven’t experienced a form of sexual violence. Plus, workplaces can have more extensive policies that extend beyond what falls under the legal definitions.
Quid pro quo sexual harassment
“Quid pro quo” means “this for that.” As defined by MCAD, quid pro quo sexual harassment is when “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . [are made] a term or condition of employment or as a basis for employment decisions.” The harasser is someone who has authority and control over the employee.
A line cook reports 30 minutes late to work because her daughter, who has asthma, woke up sick and couldn’t go to school and the employee had to wait for her sister-in-law to come and take care of her daughter before she could leave for work. This has happened two times before in the previous two months, and she has been warned by the restaurant manager that she will be fired if it happens again. The head chef sexually assaults her in exchange for not reporting her tardiness to the manager.
It doesn’t have to be made explicit; it can be implied.
The supervisor repeatedly makes sexual advances and asks the employee to go out after work while at the same time telling stories about cutting the shifts of a past employee who refused to go out with her.
The employee doesn’t have to explicitly reject the sexual conduct. It can still be harassment if the employee submitted out of fear of an adverse employment action.
The firm has a manager who is responsible for assigning associates to projects. Which projects you get has a lot to do with your potential for recognition and advancement. The young associate has heard stories of other associates who rebuffed the manager’s sexual advances and ended up with the worst assignments and eventually were let go. The associate is awaiting a decision on an H-1B visa. He needs to remain employed and so submits to the manager’s sexual advances.
Hostile environment sexual harassment
As MCAD outlines, when “sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature . . . have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment,” it is hostile environment sexual harassment.
The person in the cubicle across the aisle tells dirty jokes and calls other workers by names that refer to body parts.
The conduct must be unwelcome. It is not sexual harassment if the fellow employee willingly participates or initiates the sexual conduct. But it can be sexual harassment if the fellow employee doesn’t communicate an objection to the conduct but instead endures it out of fear of being subjected to further harassment, as a means of coping with the hostile environment, or when it is an implicit condition of employment.
A male coworker who is a long-term employee and frequently wins top sales awards regularly stands very close to female employees and comments on the fit of their clothing. When a coworker objects, he calls her by a derogatory nickname and dramatically backs away whenever she is nearby. Other female employees, fearing a similar response, withstand his intrusions.
The determination of whether the sexual conduct is hostile, intimidating, humiliating, or offensive requires both that the employee subjectively experiences it as such and that a reasonable person in the employee’s position would find it as such. Legally this is described as a subjective and objective standard. To evaluate the objective piece, the severity and pervasiveness of the conduct is evaluated. However, the more severe the conduct, the less frequency or repetition is required.
The male coworker from above engages in this conduct all day, every day. The female employees talk with each other about how offensive it is but do not speak to him or report him. Supervisors who have witnessed the conduct make jokes about him being the alpha male. The male coworker continues to be lauded by supervisors for his stellar performance.
The impact on the employee’s job performance doesn’t need to rise to the level of an employee failing at their job or suffering severe psychological harm or emotional distress. The question is whether the conduct impedes their ability to fully participate, alters the terms or conditions of their employment, or unreasonably interferes with their work performance.
It is not required that the harasser be of a different gender or that the harassment be based on sexual desire. It is also possible that harassment may occur outside of the workplace and still fall under the protections against workplace discrimination. Additionally, it is possible that the employer may be responsible when the harasser is not an employee but where the employer exerts some control over them such as when the harasser is an outside contractor or customer.
*Note: This post offers general information about the legal definition of workplace sexual harassment and is not intended as legal advice. The broad descriptions provided here cannot include the many complex issues that arise in individual circumstances. If you’ve experienced workplace sexual harassment and want support, BARCC’s Legal Advocacy Program can provide further information, connect you with other resources, or refer you to legal representation. You can request an appointment online or call our office at 617–492–8306. And stay tuned for our next post in this series, which will cover legal protections and options for survivors, as well as how BARCC supports survivors of workplace harassment.
Originally published at barcc.org.