What To Do If You’re A Witness Of Sexual Harassment At Work

If you witness harassment, Beth Robinson suggests doing something about it. Don't bury your head, or think it isn't your fight.

This week, I read an article about men who witnessed sexual harassment and their response to it.  As many women know, there was no actual response, but a lot of poor me, and I’m not like that, and a fair amount of self-pity.

From my assessment of their responses, you likely think that I am the perfect witness. But I am not. I, too, have witnessed sexual harassment and done nothing.

I was a young attorney, and in a judge’s chambers when it happened. He began to sexually harass a court employee who came in to tell him something. I just left the room, saying nothing. For the record, I wasn’t the only lawyer in there, and he had just made a joke about my skin color. But I said nothing because he decided my cases, and I knew it would not be good for my client. I am not proud of the fact that I didn’t say anything, or that I was relieved that I had only been the victim of something racist he said. I avoided his chamber like the plague after that, insisting that my cases needed to be heard from the bench so that the rulings would be on the record.

I tell that story to convey that I know it is hard to stand up to sexual harassment. It is shocking to witness. He was a married man with kids. It is uncomfortable and embarrassing. He was casually talking about her body parts. And you do have to think about your career. There was a serious power imbalance in that room, which was likely what made him so brazen. With every form of harassment, the safest course for one’s career is almost always to simply move on from the situation. I wouldn’t have dreamed of reporting that judge.

But that doesn’t make my decision the right one. It makes it the selfish one. And, you might, by virtue of your job, have an obligation to report harassment, or risk losing it if you don’t and the harassment comes to light.

One other note: if other women came forward, and said this judge harassed people, I would say something. So I understand why people wait, witnesses and victims.

When You Have To Tell

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There is a difference between “harassment” and actionable harassment. Just because harassment happened, doesn’t mean an employer is liable. More has to happen first. If the issue is a hostile work environment, the harassment has to be severe. If the issue is discrimination based on sex arises from harassing behavior (i.e., quid pro quo harassment), it has to impact the terms and conditions of one’s employment. But in either scenario, it has to come to the employer’s attention. That is where you may come in: are you a manager?

If a manager knows about the harassment, the manager has to say something. If you are a lawyer reading this at a law firm, you are a manager, even if you are a baby lawyer who just graduated from law school. You have people who work for you. If you witness harassment at work, you have a duty to tell.

Almost every handbook I write includes a requirement for managers to report harassment when they witness it, and the failure to do so is considered a violation itself of the anti-harassment policy. So yes, you innocent bystander, you can be subject to discipline, up to and including termination, just for being a silent witness. Because you are a manager, when you “know,” the company “knows.” Your knowledge is imputed to your employer for the purpose of responsibility, financial responsibility. And this is a real burden because, as many women know and as the rest of world seems to be finding out, sexual harassment is incredibly common.

So what should you do if you are a manager?

  1. Know what your duties are. Read your handbook! Understand when and how to report something you witness. And if you do, document. That way, you can absolve yourself from any responsibility should things go south for an employer.
  2. Know who to go talk to. After you learn what your duties are under the policy, figure out who you can talk to if you do witness something that concerns you.  This may or may not be your HR rep; learn the informal company culture to find the person who is the best fit for uncomfortable situations like this.  You may find yourself shielded if someone does face discipline for what you witnessed.  And document as much as you can, in the event it becomes relevant later.
  3. Be honest with yourself. If you work at a place that is full of harassment and discrimination, like a place that thinks going to strip club is a good idea for employee bonding and deciding who should get promotions, your report of observed harassment won’t matter. Your resignation is likely a better first step, unless you enjoy going to the strip club for an after-work function. But keep in mind, there is a high probability your company will be sued soon.

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When You Should Tell

I think that employees should always report harassment, because harassment is bad for company culture and deeply affects the work environment. If you see something, you should say something. But I understand if you do not, and I understand even more waiting until you leave to say anything. If you find yourself witnessing harassment and feeling powerless, you need a new job.

I am glad we have reached a point where women feel like they can tell, and further that people are standing up to back up their story. The most disturbing thing I’ve learned about sexual harassment in my working life is that serial harassers are rarely that discreet; they feel empowered by position or company culture, or even society in the case of Roy Moore, to engage in their behavior openly. But people are speaking up, sometimes years after the fact.

I don’t know that, if given an opportunity, I would do anything differently about the harassment I have witnessed as an attorney. I am fortunate in that I have never witnessed harassment at work among my co-workers, and when I did experience something that wasn’t pleasant, my co-workers (my male co-workers!) stood up for me, and made the harasser feel unwelcome. I know you can make a difference if you do ever get the nerve. Harassers feel they can get away with their behavior because they are challenged so infrequently, if at all.

And I think my personal experience is a great example of how to be an ally. In my situation, no one said anything in the heat of the moment. I think that it wasn’t the time. But later, two people took the harasser aside and told him what he did wasn’t okay. Both reached out to me and let me know what they did. And the behavior stopped.

Maybe if someone had done that with Harvey Weinstein, we wouldn’t be watching a company implode. Maybe not. But if you witness harassment, I suggest doing something about it. Don’t bury your head, or think it isn’t your fight. That way, 30 years from now, you aren’t a reluctant witness getting a call about a breaking news story asking yourself what-if, and maybe there will be fewer Weinsteins, Cosbys, and Moores.


beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.