Could a graphic joke, such as that made by Hoffman, or a comment about someone’s body and outfit that particular day constitute sexual harassment? What if someone is wearing tight-fitting clothing?
Movie mogul Harvey Weinstein’s alleged actions involved lunges and physical intimidation, in addition to violent sexual assault. But what about a lingering hug or a light, affectionate touch on the arm? Could that be regarded as sexual harassment?
It could be a comment about clothing, the way you say something or even a look.
The legal requirements for sexual harassment are very clear, but what constitutes sexual harassment may be less clear – for the perpetrators, if not the victims.
The latest allegations of sexual harassment in the entertainment business – by Anna Graham Hunter in “The Hollywood Reporter” – outlines some graphic comments attributed to the actor Dustin Hoffman in 1985, while he was filming “Death of a Salesman.” She also alleged he grabbed her from behind. Hoffman has apologized. Graham Hunter, who was 17 at the time, also said he asked about her sex life and made aggressive jokes of a sexual nature – a no-no for anyone in a position of power in the workplace.
‘It could be a look, how long we look and the way we look at a co-worker. It could be the way we say something to a colleague. If it’s said with a certain inflection it could cross the line.’
In theory, yes. If it was persistent and designed to make someone feel uncomfortable or if it involved unwelcome sexual overtures. “It could be a look, how long we look and the way we look at a co-worker”, said Denise Dudley, author of “Work It! Get In, Get Noticed, Get Promoted.” “And it could even be the way we say something to a colleague.” She gives an example: “You look really good in red.” Sounds like an innocuous compliment, right? “But if it’s said with a certain inflection, it could cross the line.”
The term ’sexual harassment’ didn’t become widely used until around 1975, when Carmita Wood, a laboratory worker, quit her job after alleging her supervisor made advances.
Sexual harassment is also about intention
“There is still so much shame and humiliation attached to being a victim, it’s worth examining what constitutes sexual harassment”, said Fran Walfish, a Beverly Hills, Calif.-based psychotherapist.
“Sexual harassment is generally not about sex. It’s about control and power and overpowering a weaker person in order to validate and puff up one’s own grandiosity”, she said. “Any act such as this that makes you feel uncomfortable should be documented with the time, date and location.”
Intention is a game-changer. “A lot of the conversation has been about blatantly obvious sexual harassment like getting grabbed in the elevator or whistled at in the parking garage”, Dudley added, “but it fails to discuss some really subtle things that are much more difficult to untangle, such as ‘compliments’ that are sometimes completely innocent and sincere, and at other times, are simply couched come-ons.”
It must either be unwelcome or create a hostile environment
But one look or comment made is typically not be enough. Title VII bans discrimination in employment, specifically discrimination based on race, color, religion, sex or national origin. “Harassment can include sexual harassment or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature”, according to the U.S. Equal Employment Opportunity Commission. It does not have to be of a sexual nature and can include offensive remarks about a person’s sex, it added.
Legally speaking, winking, staring, or comments about someone’s body can rise to the level of sexual harassment if they are repeated and unwelcome, and create a hostile work environment.’
“It must be unwelcome”, said Fatima Goss Graves, president and chief executive officer of the National Women’s Law Center, a nonprofit women’s advocacy group in Washington, D.C. “That may shift from person to person.”
Heather McLaughlin, an assistant professor of sociology at Oklahoma State University, said this standard means all kinds of behavior, if persistent, could be tantamount to harassment. “Legally speaking, winking, staring, or comments about someone’s body can rise to the level of sexual harassment if they are repeated and unwelcome, as they can create an intimidating, hostile, or offensive work environment.”
In fact, this kind of insidious harassment is typically designed to make someone feel small and, worse, could continue for years because it exists just below the surface. “I would be uncomfortable and upset if someone winked or made a comment about my appearance in a work setting, especially if they were senior to me”, said Piera Palazzolo, a New York City-based workplace expert.
Reported cases have remained persistently high since the 1990s
Sexual harassment has been around a lot longer than the description for that kind of behavior. It wasn’t until the mid-1970s that the women’s liberation movement and several high-profile sexual-harassment cases cast a national light on the problem.
The term “sexual harassment” didn’t become widely used to describe this kind of workplace behavior until 1975, when Carmita Wood, a laboratory worker, quit her job after alleging her supervisor made advances, but she was denied workers’ compensation. Another landmark case in 1986 led the U.S. Supreme Court to finally recognize sexual harassment as a violation of Title VII of the Civil Rights Act of 1964.
There were 10,532 sexual-harassment cases filed in the U.S. in 1992, the year after Anita Hill’s testimony during the Clarence Thomas hearings. The number of cases peaked at 15,889 in 1997 and has declined steadily to 12,860 last year. Still, one 2011 study carried out by Langer Research Associates, a New York-based industry research firm, concluded that one in four women – a far greater proportion than EEOC data suggest – experienced sexual harassment at work.
Employers should be proactive in training and educating staff
Companies may need to brace themselves for more people to come forward with allegations of inappropriate behavior. Goss Graves has question male workers who are unsure of the line between so-called harmless comments and offensive behavior should ask themselves: “Are these comments you would only say to a woman? Are they making the other person feel uncomfortable?”
“You don’t have to wait until an employee is brutalized over and over again”, she said. “If a woman is being subjected to comments about her appearance or mannerisms or voice, that may be a problem and, if done persistently, may rise to the level of a hostile environment.”
‘If a woman is being subjected to comments about her appearance or mannerisms or voice, that may be a problem and, if done persistently, may rise to the level of a hostile environment.’
Even having expectations about how a woman should dress, look and act – could constitute legal discrimination based on sex and gender. In a landmark Supreme Court case, Ann Hopkins, an accountant, argued her partnership at the Price Waterhouse accounting firm in 1989 was blocked because she did not act how they expected a woman to act.
The court ruled that the company violated Title VII of the Civil Rights Act of 1964. During her time at the firm, Hopkins alleged she was told to wear makeup and jewelry, and walk and talk like a woman.
When corporate culture allows harassment to continue
There is a once-in-a-generation cultural shift, made possible by allegations that detail decades of predatory behavior by Weinstein. Of course, millions of working men are acutely aware of the difference between harassment and friendly banter in the workplace, and some men also experience sexual harassment. More than 50% of women and nearly 20% of men reported at least one incident of sexual harassment during a 12-month period, according to a 2011 study published in the journal Social Psychological and Personality Science.
The allegations about the behavior of certain executives at Uber opened the lid on the mistreatment of women in Silicon Valley and shows how sexual harassment can spread within companies as well as become normalized within industries. (Uber eventually fired 20 employees after an investigation.)
Dudley experienced one of the rarer cases of sexual harassment: In college, her harasser was a woman. Dudley recalls brushing it off: “She said, ‘I just want to tell you that I find you very attractive.’ I was in her psychology class and my grades were depending on what she thought of me. She could get my better grades. I was already getting good grades, so I thought, ‘It doesn’t matter.’”
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In most cases, however, the perpetrator is a man and – more often than not – a man in an industry with power. If a conversation with the person in question doesn’t work? “Know your rights and stand up for yourself”, Toronto-based marketing consultant Evan Carmichael That means talking to your manager’s manager and/or contacting human resources. But that’s not so easy in a smaller company where the harasser may also be the owner.
‘There is still so much shame and humiliation attached to being a victim. They are often blamed and held accountable for the assault and end up feeling either that they brought it on somehow or could have prevented it.’
And human resources often protects the company’s reputation before the employee. “HR pros and leaders usually know who their harassers are, but we keep thinking we can ‘teach’ them how to not be creepy”, said Tim Sackett, president of HRU Technical Resources, an information technology and engineering staffing firm in Lansing, Mich.
“Far too often we go through this lengthy process of warning and disciplining the employee, not wanting to embarrass them, and what we are really doing is teaching them how to get away with sexual harassment”, he said.
The most difficult part: People who are sexually harassed may feel that they are making a fuss over something that doesn’t seem such a big deal anyway, even if it creates anxiety, stress and forces them to change jobs or career, Walfish said. For that reason, more low-key, insidious form of sexual harassment over months or even years can be very damaging.
“Victims are still often blamed and held accountable for the assault and end up feeling either that they brought it on somehow or could have prevented it”, she added. “That is simply not true. The recent revelations are going to help so many victims feel less alone and less isolated and less stigmatized.”
