Just a couple short weeks ago, the New York Times published an explosive article about film producer Harvey Weinstein, revealing allegations of sexual harassment that spanned decades and accusations of him engaging in inappropriate sexual behavior toward women with whom he has both supervised and mentored throughout his career.
Since the New York Times article exposed Harvey Weinstein’s behavior, several actresses have come forward commenting on their experiences and corroborating allegations of inappropriate behavior and sexual harassment. With one article in the New York Times, the subject of workplace sexual harassment is back in the forefront of everyone’s consciousness.
Although the Harvey Weinstein scandal is bringing about a renewed interest in sexual harassment in the workplace, this is not a new phenomenon. Women have been facing workplace sexual harassment for many, many years.
Although harassment can be carried out by men as well as women, and perpetrators can be of both genders, it tends to be a man-on-woman offense, when labor laws are violated and then reported. According to the U.S Equal Employment Opportunity Commission’s legal research, in some instances, up to 85% of women assert they have experienced sexual harassment in the workplace at some point in their life.
Title VII of the Civil Rights Act of 1964 was created for the very purpose of protecting employees from discrimination based on their gender, including acts of sexual harassment. Under Title VII it is unlawful to harass a person (an applicant or employee) through unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Federal employment law states that sexual harassment typically manifests in two forms: 1) as quid pro quo sexual harassment, or as 2) a hostile work environment. “Quid pro quo” sexual harassment occurs, for instance, when an employer coerces an employee into submitting to unwelcome sexual advances in return for a job benefit. Quid pro quo sexual harassment also occurs when an employee refuses to partake in such harassment, and the employee’s refusal is used as a basis for decisions in employment.
A “hostile work environment” sexual harassment claim takes place when: 1) enduring the sexual harassment becomes a condition of continued employment; or 2) when the sexual harassment is so severe or pervasive the workplace becomes hostile, offensive or intimidating. This harassment might include unwanted sexual advances. Under employment law standards, courts use evidence such as the frequency of such behavior, the hostility of it, the role of the harasser and the extent to which others join in when making their decisions.
In addition to federal employment laws protecting workers from sexual harassment, many states have specific laws preventing sex discrimination and sexual harassment in the workplace as well. The newest proposed legislation comes from New York State Assemblywoman Linda Rosenthal. Ms. Rosenthal has stated that following the Harvey Weinstein scandal she has written legislation that would require companies to disclose sexual harassment complaints and settlements going back five years, and if those state businesses have a poor record of rectifying sexual harassment complaints they would be ineligible for tax breaks or other state business incentives.
In addition to there being federal and state employment laws and labor laws in place that seek to prevent and redress workplace sexual harassment, many employers also offer training on the subject of sexual harassment. In fact, legal research shows 70% of employers provide training on the issue of sexual harassment, and 98% of companies have a policy on the subject. With all of these protections and employment laws in place, one might wonder why sexual harassment at work is still quite prevalent, and why allegations of sexual harassment similar to those levied against Harvey Weinstein remains so constant.
First, American culture tends to suggest that unwanted sexualized behavior is acceptable, or even desirable by some. Nothing supports this sentiment more than the backlash surrounding Mayim Bialik’s article in the New York Times. In her article, Bialik suggests that she was never sexually harassed because she was not “pretty” enough. She also asserts that victims must be more self-protecting by the clothes they wear and the decisions they make. Many took great offense to these sentiments because they thought they were “victim-blaming.” As a result of the article, the #Metoo hashtag ensued, revealing just how large in scale sexual harassment is, and more importantly uncovering that sexual harassment affects people despite their perceived physical desirability or any wrongdoing or lack of judgment on their part.
Another reason that workplace sexual harassment persists despite employment laws in place to protect victims is that many individuals do not report sexual harassment for fear of retaliation-thus giving the illusion that it is not as prevalent as it is. Legal research suggests that although more than three-quarters of women feel that they have been harassed at work, 71% of those having been harassed do nothing about it. According to legal research by the EEOC, 75% of employees who speak out against workplace mistreatment face some form of retaliation by their employer.
A victim of sexual harassment embarks on a risky journey when he or she chooses to take his or her employer to court for either the sexual harassment or the retaliation: it can be expensive, and there is no guarantee of victory. As much as the law states that employers are not permitted to take adverse actions against any employee who might report workplace sexual harassment, proving retaliation can be tricky. Many employers make the workplace so uncomfortable, the employee may eventually just decide to leave to avoid any further conflict and abuse.
In order to change the pervasiveness of sexual harassment, we must do more than having employment laws and labor laws aimed at preventing such conduct. It is not even enough to have sexual harassment training at every person’s job. We must create an environment, particularly in male-dominated professions, that allow a safe space for victims of sexual harassment to come forward and call out such behavior when it occurs. We must also create an environment that does away with the ‘bystander effect.’ That is, witnesses of sexual harassment (those who do not endure it but witness it) must feel comfortable coming forward and reporting such conduct as well.
The more that we increasingly challenge sexual harassment, the more women who know their rights and are empowered to assert them, the higher chance we as a society have of delegitimizing a culture of inappropriate sexual behavior and abuse.
As terrible as Weinstein’s behavior has been it may inadvertently do some good, as it women may hopefully begin to realize they can speak out, and perpetrators will, in turn, recognize that their actions have consequences.
References and sources used in this article:
- “Study finds 75 percent of workplace harassment victims experienced retaliation when they spoke up: What we know about sexual harassment in America.” Updated by Tara Golshan (October 15, 2017).: https://www.vox.com/identities/2017/10/15/16438750/weinstein-sexual-harassment-facts
- The New York Times: https://www.nytimes.com/2017/10/11/books/review/strange-justice-mayer-abramson-weinstein-workplace-sexual-harassment.html
- Workplace Fairness – workplacefairness.org
- US Equal Employment Opportunity Commission: https://www.eeoc.gov/eeoc/publications/fs-sex.cfm
- Policy Guidance On Employer Liability Under Title Vii For … (n.d.). Retrieved from https://www1.eeoc.gov/policy/docs/sexualfavor.html
- The Harvard Business Review article ‘Why we fail to report Sexual Harassment’:
- https://hbr.org/2016/10/why-we-fail-to-report-sexual-harassment
- http://www.washingtontimes.com/news/2017/oct/16/ny-lawmaker-deny-tax-breaks-to-companies-for-sex-h/