Sexual Harassment at Work

Expert advice on how to respond

By Kimberly Olson

In recent months, sexual harassment allegations have been lodged against dozens of prominent men—from Hollywood to Silicon Valley to Congress. While media attention tends to focus on those with high-profile careers, sexual harassment occurs in all kinds of workplaces.

As people share their personal stories on social media as part of the MeToo movement, organizations are taking notice. “We’re seeing companies like Uber, Google, Nike, and Mattel having to go through a major shake-up because of what’s happening on social media and in the news,” says Shirley Davis, PhD, CEO of SDS Global Enterprises. “A lot of victims have found their voice and strength, and companies are reacting in a way they weren’t before. I do not think that this will pass with the news cycle.”

Sexual harassment is a violation of Title VII of the Civil Rights Act, and if one employee harasses another, the employee’s organization can be penalized. “When you start paying out multimillion dollar settlements, it becomes very costly,” Dr. Davis says. “The damage to your brand image and reputation take years to restore.”

The US Equal Employment Opportunity Commission (EEOC) defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment that is sexual in nature, as well as comments about a person’s sex, such as an offensive comment about women. It may be touching someone inappropriately, saying something insulting about a coworker’s gender or sexual orientation, or sending inappropriate texts, photos, or posts on social media.

What should you do if a colleague makes you uncomfortable? We talked to experts about how women—and men who are also victims of sexual harassment—should handle some common situations. Here’s what they said.

How should I respond if a colleague makes a sexually suggestive comment?
“If a male colleague was to make a sexually suggestive comment to a female—or even to a male—I would counsel them to say, ‘Listen, that comment makes me feel uncomfortable and it doesn’t have a place here; don’t say something like that to me again,’” says Samir Gupte of Pope Consulting, a management consulting firm with expertise in diversity and inclusion.

After speaking directly to your coworker, you may also want to notify a supervisor or human resources. “Calmly inform a supervisor what happened and that you asked the person politely to stop,” suggests Matthew S. McNicholas, a partner with McNicholas & McNicholas LLP, a Los Angeles law firm covering employment law. “This does two things: seeks to immediately stop the conduct and loops in the employer early on to prevent things from getting worse.”

“It can be especially difficult for younger women and more junior employees, but you have a right to a harassment-free workplace,” Gupte says. “Companies value you and want you to be your best, and if there are things standing in the way of that, you have to stand up for yourself. With the visibility of MeToo now, demand the workplace you want. Find an ally, whether it’s your boss, human resources, or general counsel.”

What should I do if a colleague touches me inappropriately? 
“You may want to first bring it to your coworker’s attention and talk about it, because it might have been done inadvertently,” suggests Kimberly Anne Capadona, a partner at Archer & Greiner in Hackensack, New Jersey, with expertise in labor and employment law. “We heard about a situation through a client where a female supervisor touched another female on the behind at a party. The woman who was touched was so conflicted. She said, ‘We’re friends. I didn’t think she would do anything like that.’ When it was brought to the supervisor’s attention, she had no idea. She was mortified and apologized up and down. If you have that type of relationship with the colleague and you’re okay with mentioning it to them, you should do it.”

If you do need to report it and your company has a sexual harassment policy, refer to the reporting guidelines. “If there is no policy, there are HR directors and C-suite execs, so this could be brought to their attention and they should promptly look into the allegations,” Capadona says. “You shouldn’t go to work feeling violated.”

“If the organization does not take action or does not take the claim seriously, or to supplement support to someone, there are also external resources such as support centers for victims of harassment and assault, the police, and the EEOC,” adds Tina Todd, cofounder of simplyHR, a consulting firm in Fort Collins, Colorado and co-creator of the sexual harassment training comic book Define the Line.

What should I do if a colleague makes unwelcome requests for a date?

“Politely decline the invitations, but if the colleague persists, you may need to escalate the situation to ensure it stops,” advises Lori Carr, a partner at Estes, Thorne & Carr, a woman-owned law firm in Dallas. “Repeated unwelcome requests for a date are a form of sexually harassing behavior.”

Provide a detailed description of any sexual harassment in writing, such as via email, to your supervisor, manager, or human resources. Also, keep a private journal to document any ongoing harassment. “As with any other form of workplace discrimination, the facts of what happened—including people, places, dates, and events—will be pertinent, both in the reporting process and to eventually prove your claim if you ultimately choose to go to court,” says Eric M. Sarver, an employment law and business law attorney in New York City.

Note what occurred, as well as the names of anyone who witnessed the harassment and those to whom you reported it, keeping your notes in a safe place. “Don’t place them on your work computer, in a desk drawer, or somewhere your employer can take them,” Sarver advises. “This is especially key in case you are fired and prevented from taking your notes from your work computer or your desk drawer at work.”

What should I do if a coworker shares sexually explicit images?

“Once you recognize what you are being shown, decline to look any further and report the coworker to your supervisor and/or the HR department,” Carr advises. “If your company has a sexual harassment policy, not only is this behavior in violation of the policy, but as an employee, you have an obligation to report the violative conduct.”

Make sure to preserve any evidence. “If the harasser is texting, emailing, or sending cards or sexually explicit images, keep copies—don’t delete them,” Sarver says. “Make sure you take a screenshot of any texts, pictures, or Snapchats and print them, so you don’t lose them if your device crashes or you buy a new one. Print out emails, too, and keep them in a safe place.”

I’m an openly gay male. Is it okay for me to hug a female coworker? 
“We all have different comfort levels, so hugs could be uncomfortable regardless of gender dynamics of colleagues,” says Todd. “Unless you know the individual well and know confidently that someone feels comfortable in those types of situations, err on the side of caution. Skip the hug and opt for a high five instead.”

As a man, on a business trip, is it appropriate to invite a female colleague to my hotel room to quickly go over our presentation? 
“Don’t do it,” McNicholas advises. “Even if you have the purest of intentions, the invitation has too great of a chance to be misconstrued or misinterpreted. In this day and age, almost every hotel has a meeting space to use. There’s nothing about your room that can’t be achieved elsewhere.”

If you’re the person being invited, suggest an alternative. “It is perfectly acceptable and appropriate to state, ‘I’d prefer to meet downstairs in the lobby,’” Todd says. “Our hope is that with attention to this topic, individuals are feeling more comfortable stating their preferences.”

In any of these cases, if your company fails to remedy the situation, you may need to seek assistance outside the organization. DW

Confidentiality Agreements: Should They Go Away?

As more people share their stories of sexual harassment and assault, attention has turned to nondisclosure agreements, or NDAs. These contracts, long used to settle sexual harassment cases, prevent the parties involved from discussing any details of the settlement. Critics argue that NDAs push stories of sexual harassment into the shadows, allowing possible perpetrators to safeguard their reputation.

Now some companies are rethinking these agreements. The Weinstein Company made headlines when it dissolved its NDAs, allowing women to speak freely. “It’s a new era, with people being released from confidentiality agreements due to the MeToo movement,” says Bonnie Mayfield, an attorney with Dykema Gossett PLLC and chair of the Diversity and Inclusion Committee and a vice chair of the Employment Law Committee of the International Association of Defense Counsel. The State of Washington recently passed a law prohibiting companies from requiring employees to sign such agreements, and other states are introducing similar legislation.

Perhaps most significantly, Congress enacted the Tax Cuts and Jobs Act, which prohibits companies from deducting as a business expense any sexual harassment settlements or payments or associated attorney’s fees if the payment is subject to an NDA.

This emerging trend has various implications. “Women have been freed of the restrictions of not being able to talk about these events,” Mayfield says. “It also allows the public—to the extent that the alleged victim comes forward—to know the alleged victim’s and the alleged aggressor’s versions of the facts. And companies may be seen as having more transparency and credibility.”

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