Facing Down Sexual Harassment in the #MeToo Era

In the past year, high-profile incidents and the #MeToo movement’s rise have brought sexual harassment to the forefront of workplace issues. But everyone knows it’s not a new problem.

Last year, the investing firm First Round reported 78 percent of the women company founders it surveyed had been victims of sexual harassment or knew someone who was. Nearly half (48 percent) of their male colleagues said the same thing.

According to the survey Elephant in the Valley, 60 percent of women in tech have been the target of unwanted sexual advances from a manager. Sixty percent of those who reported the harassment to their employer weren’t happy with the company’s response. Worse, nearly 70 percent of women tech pros didn’t report the harassment at all; they either thought it would hurt their career or they wanted to just put the incident behind them.

Such numbers don’t sit well with Marta Moakley, an attorney and legal editor with XpertHR. “Anybody who is confronted with a situation where they feel they’re being subjected to unlawful behavior in the workplace has the responsibility to report it and to do everything they can to make sure that their rights are respected and addressed,” she said.

That begs the question: What should the average tech professional do if they’re harassed?

A good start, attorneys and other experts say, is to have an idea of what actually constitutes harassment. Some lines are very clear. For example, you’re probably aware that harassment occurs when a manager makes it clear that sexual favors will help your career—or that rebuffing his advance will hurt it. In a similar vein, a gig programmer may not realize that they’re entitled to their client’s support if a full-time employee repeatedly makes lewd and suggestive comments.

But what happens if a colleague makes a pass when you get together for drinks after work? On what side of the line does something like that fall? To help you navigate the often-muddled waters of workplace sexual harassment, here’s a brief guide on how to recognize it, and then take action to stop it.

First, The Law

U.S. Federal law protects employees from discrimination on the basis of race, color, religion, sex (including pregnancy), sexual orientation, national origin, age, disability or genetic information. Many states and municipalities have additional laws, and many businesses have policies to address matters that aren’t covered by law. The agency responsible for enforcing these federal workplace rules is the Equal Employment Opportunity Commission, or EEOC. Among other things, its regulations cover sexual harassment.

What many people don’t realize is there are two types of sexual harassment: “quid pro quo” and “hostile environment.” What’s the difference?

Quid pro quo, or “something for something,” is all about power. The harasser says, “If you do this for me, then I’ll do that for you.” Most of the cases you’ve seen in the media fall into this category: Powerful people abuse their position to obtain sex or treat others in a sexually abusive manner.

Typically, quid pro quo occurs between a manager and an employee, though they don’t have to be in the same reporting structure. Because power is the main factor, it doesn’t matter whether the harassment occurs at a company facility, off-site or after hours. Since managers have the power to affect an employee’s career, many workers hesitate to complain about a higher-up making sexually abusive remarks.

However, an employee doesn’t have to be directly involved to be harassed. For example, the worker’s boss may be having an affair with a fellow team member. That’s also a case of sexual harassment because the “uninvolved” co-worker may be losing out on opportunities the manager is awarding to his paramour.

A hostile environment describes a workplace atmosphere that a “reasonable person” would consider sexually intimidating, hostile or abusive. Typically, the behavior in question has to be severe and pervasive.

Sexual harassment between peers, or between employees and external business contacts, generally falls into this area. For instance, when one worker comes on to a colleague at an off-site business conference, the targeted employee has the right to complain to their company and ask it to address the situation.

The key in that scenario is that the company has sent the workers to the business conference. If the same incident occurred off-site, after work hours, on purely personal time, the company isn’t responsible. Only when bad behavior crosses into the workplace can the harassed employee file a complaint.

Finally, when a full-time employee makes lewd remarks or comes on to a consultant or gig worker, the targeted person can complain to the employer and ask for resolution, such as forcing a stop to the behavior or assigning them to work with a different employee.

There’s a lot of gray in these descriptions, so here’s a simple litmus test. If you answer “yes” to all of these three questions, you’re justified in demanding an end to the behavior.

  • Was the behavior sexual in nature or relating to gender?
  • Did it occur in the workplace or at an extension of the workplace?
  • Was the behavior unwelcome?

Doing Something About It

The truth is, making a sexual harassment complaint is, at best, unnerving. But if you’re being harassed, there are steps you can take.

Speak to the Harasser: Identify the specific behaviors you find offensive, describe how they’re affecting you, and ask him (or her) to stop. The person may not even realize the effect their words or actions are having.

Speak to your manager or HR department: Of course, even the idea of confronting the harasser can be intimidating. Reach out to your direct supervisor but, if in doubt, anyone above you will do; or you can go directly to HR. Once again, describe the specific behaviors, their impact and how you’d like to see the situation resolved. Your organization may also have a hotline or other processes to handle grievances.

Contact the EEOC or your state’s civil rights agency: Another option is to file a complaint directly with the EEOC. Keep in mind, its staff will ask what you’ve done to resolve the situation internally, and what the employer’s actions were.

When an employee complains about harassment, employers are required to take immediate action. They must investigate, speak to all affected parties and keep all proceedings confidential. If you believe your confidentiality isn’t being respected, immediately escalate the process to the next level. The EEOC takes harassment-related retaliation extremely seriously.

“I think if we’ve learned anything,” Moakley said, “it’s really just to speak up when you see something happening. Speak up to make sure that it doesn’t continue. It’s just part of being a responsible, productive member of the team.”

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