Labor / Employment, On The Job

'9 Tips To Avoid Being A Workplace Sexual Harasser': A Woman Lawyer’s Critique (Part I)

Because a man can never fully grasp workplace sexual harassment as it appears to a woman.

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Last week, “I waded with trepidation” into providing nine tips to men on how not to be a workplace sexual harasser.

I feared that such an article would fail to touch all bases or make all relevant and significant points.  But most of all, I understood that no matter how hard I tried, as a male I could never fully grasp workplace sexual harassment as it appears to a woman.

I was right to have these concerns.

While this article garnered generally positive feedback, it also resulted in comments that raised my awareness that you must “walk in someone’s shoes” before you can really — and I mean really — know what they experience. And that’s virtually impossible.

For instance, while I can empathize with the plight of women, I don’t know what it’s like to contend with gender pay disparity. While I deplore racism, I have never experienced the phenomenon “driving while black.”  So while I can denounce these discriminations and disparate treatments, I have never experienced them first-hand.

So I asked my ever-wise, erudite, thoughtful (and supportive) employment law partner, Amy Epstein Gluck, to deconstruct my article and provide her commentary. She did so constructively and critically.

The following dissection of my “nine tips” presents me as “RBC” (clever, huh?) with verbatim quotes from that prior post, and Amy Epstein Gluck is … “AEG,” commenting on the advice I provided.

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One caveat: of course, men can be sexually harassed by women or other men, but this article discusses the sexual harassment paradigm of a man as the workplace harasser and woman as the person being harassed.

Because of the length of our conversation, I am splitting it into three posts, the second to come next week.

Here’s Part 1.

RBC:  I want to address this post to those who want to or are tempted to cross the line into non-consensual words or physical contact, or who have no clue and blunder across it, or who don’t know that there is a line and where it is.

Don’t treat your workplace as a bar or nightclub

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AEG:  For those “who want to or are tempted to cross the line,” I would say don’t treat your workplace as a bar or nightclub. Consider addressing the post first to those who “have no clue and may blunder across the line.” Consider that what might be thoughtless behavior on your (a man’s) part — like eyeing a woman up and down — may make a woman really uncomfortable.  In other words, think before you speak or act. For those who do not know there is a line or where it is — educate yourself. Be aware of your privilege. This is 2017.

RBC: Consensual versus non-consensual words or conduct is the touchstone, and as I have written before, I believe that power differential is key to understanding the reason(s) why harassers feel that they can get away with — and, indeed, typically get away with — harassment, as is borne out by the ever-multiplying recent headlines.

Power is a key cause of unreported sexual harassment

AEG:  While I agree that power is a key cause of unreported sexual harassment, I do not think consensual v. nonconsensual words or conduct is the “touchstone” of sexual harassment. Where men lead companies and industries, and studies show that they still overwhelmingly do, I think that power uncorralled by respect and adherence to the anti-discrimination laws (which includes opposition to discriminatory conduct) without certain safeguards breeds sexual harassment.

Women (in general) do not generate this behavior. That’s why taking the stance that women, and only women, are key to stopping or ameliorating the behavior doesn’t make any sense and won’t eradicate sexual harassment. We need men to be accountable for their actions — their own behavior and their opposition to sexual harassment where they see it.

Sexual harassment perpetuates when it is nurtured by others and continues unopposed; but rather than placing the onus solely on women to report — along with the credibility issues entailed and often-present victim shaming — studies show that if men are accountable for their own actions and oppose sexism and harassment when they find it, sexual harassment is far more likely to abate. I mean, look, women accused Harvey Weinstein (and Cosby) for decades, yet nothing came to light until the recent New York Times report.

Still unconvinced?

I recently wrote about the 2017 (and 2016) LeanIn/McKinsey study, and advised employers to

Focus on accountability and results. Use targets to set goals for hiring, promotions, and equal pay. LeanIn and McKinsey’s study shows that employees are more likely to believe they have equal opportunities and are more engaged when their leaders are held accountable for improving gender diversity, engage in more objective (and therefore fair) means of hiring and promoting, and create a more inclusive environment. Remember, we’re creating a “top-down” culture of respect and parity.”

RBC: From farm to Valley, from medical school to morgue, and from diner to library, ‘particularly vulnerable’ employees are subjected to sexual harassment — ‘particularly vulnerable’ when those in ‘a position of power’ are able to ‘leverage’ that position to exploit them.  And that means that virtually all of the harassment claims that have been asserted are against men, who, historically, have been in power positions vis a vis women — in the workplace and in society at large.

Consider how you (as a man) would feel if someone talked to your female loved one like that

AEG:  Ditto on the immediately preceding responses. We see that’s also the issue with the scourge of sexual harassment allegations in Silicon Valley, where women-founded companies seek investments from male investors who subject them to sexually harassing behavior. Who has the power here?  The person with the money to invest!

To be continued next week…

richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.

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