On The Job

There Are No Accidental Monsters: Or How Not To Worry About Sexual Harassment At Work

Sexual harassment comes from deliberate action by both the harasser and the employer.

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In the wake of the Harvey Weinstein (and many other, including at NPR) scandals, I see a troubling trend of acting like sexual harassment just happens, rather than talking about how purposeful it is, in the media.  This is particularly troubling for me, an employment law attorney, because misinformation is a real problem in my practice. Sexual harassment is incredibly common, but it isn’t ever actually accidental. Sexual harassment comes from deliberate action by both the harasser and the employer, and that action needs to be addressed honestly.

The Myth Of The Accidental Harasser

One of the most annoying trends I’ve seen are the “how to talk to women at work” stories. As if this would solve the issue of sexual harassment, and good employees are accidentally caught up in its web. Examples are here, and here. But most people know how to talk to their colleagues in a respectful way and have little issue with these types of things because they talk to their colleagues as human beings regardless of gender. It isn’t that hard. You don’t need an article telling you not to be a jerk. Harassment isn’t telling your co-worker they look nice today. Harassment is objectionable conduct, and actionable harassment, the kind that causes lawsuits and creates a hostile work environment, is pervasive and excessive. No one excessively harasses accidentally. Just how often do you need to tell your co-worker they look nice today?

I think that this whole line of discussion is wasted. Because it ignores the real problem. There are two types of sexual harassment situations at work, and easy ways to avoid or resolve both of them (by the employer) . And more importantly, it is impossible, as an employee, to “accidentally” harass. In both scenarios, the harasser is fully aware of what they are doing.

The Truth About Sexual Harassment

People who engage in sexual harassment in the workplace are either choosing to have sex with a subordinate, or engaging in a pattern of sexually inappropriate behavior. There is no in-between. In general, all types of sexual harassment can be broken down into the two categories below. And both are the fault of the employer if the behavior arises to a level of harassment.

  1. The Quid Pro Quo Harasser

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This is the employee who says, you sleep with me, your career prospects improve. Exhibit A is Harvey Weinstein. Harvey Weinstein knew what he was doing was wrong. These harassers know what they are doing is wrong. They abuse their power, and they work to hide their actions and discredit their victims because they know what they are doing is wrong.

People can become quid pro quo harassers when they have a consensual sexual relationship with their subordinates and then begin to confer benefits because of the sexual relationship.  Those reviews are probably awesome as long as the relationship is good. But guess what? Having sex with someone is a choice. And the right thing to do, if you start a relationship with your cute male team member, is to go to the company and tell them what happened, and move teams (the supervisor, this is the supervisor’s duty to move!). Then it’s problem solved. For the employer: always move the supervisor.

2.  The Inappropriate Harasser

The second type of harasser is the person who says inappropriate things often to a co-worker or even prospective employee, based on sex. She may comment on a feature of an employee’s body (and this is almost always in a leering way), or he may pat a female employee on the buttocks (these are real life examples).

But here is the thing: these horrible people know they are horrible. Comments regarding someone’s genitals aren’t ever ok outside of specific circumstances. I refuse to believe that a grown adult isn’t aware of this, and will not give the benefit of the doubt to anyone who pretends to not know this is not ok. Further, the person who makes these comments or gestures continue their horrible behavior because (1) no one reports them, because they think that nothing will be done or the employer lacks good policies, or (2) people report them, and the employer does nothing, and becomes complicit in the environment that is created. In either scenario, the employer should be ready to write a big check.

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The Solution To The Problem Of Sexual Harassment

So how do you avoid the problem of sexual harassment in your career? Unfortunately, the solution is incredibly simple and incredibly difficult at the same time: you must choose to work at places that don’t tolerate it. Unfortunately, because of the culture of our communities, these places are rare. A good sign is usually a significant number of women in leadership. And good diversity in light of the industry. But that is incredibly rare. I’ve never found a place with a healthy culture for sexual harassment that didn’t have a number of women in important decision-making positions. Does the board struggle to find qualified women to sit on it? Does the company struggle to find qualified female candidates? It is likely you will be harassed there for any “difference,” and that includes gender.

For an employer, it really is simple: don’t tolerate it. If someone reports sexual harassment, act quickly and decisively. Have a zero tolerance policy regarding supervisors dating subordinates, and put all of the onus on the supervisor in that situation. If supervisors know that choosing to sleep with someone will equal a change in their job title, that behavior will end. It really is that simple.

People really shouldn’t be dealing with harassment at work, in any form. It makes you less productive. If an employer is repeatedly propositioning their subordinate, they aren’t getting their work done. Employers, this one is on you. Don’t tolerate it. Just don’t. In the end, it makes the workplace better for everyone, and can present a boon to your bottom line.

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.

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