Let us begin with a story of an intern in a US Office.
When She took the intern’s role at a tech company, she was the sole woman employee working on the floor. She was subjected to frequent flirting and unwelcome comments like, how sexy she looked in a dress, etc. She continuously felt boundaries being crossed but still powerless to do something about it. However, the limit was crossed one day when a male colleague, senior to her but not in the same department, came to her cubicle and grabbed her from behind unexpectedly.
In any other place, she might’ve slapped him, she says. But she couldn’t muster courage to slap someone at work which might create a scene. The sound reverberating across a quiet office could make heads turn. However, she felt that how can that guy feel entitled to touch her without consent?
There was a voice within the back of her head that somehow blamed herself. Additionally, she felt that as an intern, or a replacement hire, one feels powerless and easily replaceable. This fear won’t let her report the incident and time passed as she somehow managed to complete her internship with the embarrassing memory of that incident which was not a funny joke but an instance of sexual harassment.
The girl’s story is hardly unique. A workplace study by LeanIn.org and McKinsey’s in 2018 found that 35% of girls have experienced similar sorts of harassment in the course of their careers. It jumped to 45% for the girls working in technical fields, 48% for women identifying as lesbians, and 55% for women at senior level.
Even though we know that what’s happening is not right, it is often intimidating for analysts to work out which cases out of it have crossed the road to turn into something illegal. And for women, deciding what to do about it is often just overwhelming—especially in case they are stuck in an emotionally draining and traumatizing situation with a senior. In this blog, we will assist our readers to understand what constitutes sexual harassment from the US context and will understand about remedies available in the US laws.
We will cover various topics related to sexual harassment and on our way we will also discuss some stats and reports available regarding these incidences.
Before starting, a crucial note to our readers: While we might have started with a fictions scenario of sexual harassment, we have tried to stick to the legal facts in this piece. However, consider this writing piece as a general resource of information to assist in recognizing instances of sexual harassment of women at workplace. Though we still recommend victims to seek personalized advice specific to their situation from an actual lawyer or reputed law firm specialising in PoSH Act and sexual harassment cases. In the following sections, we will study the American approach to counter sexual harassment through their laws.
What Qualifies as Sexual Harassment?
Any unwelcome sexual activity targeted towards a victim, requests for sexual favours, and other ways of sexual conduct be it verbal or physical constitute sexual harassment, when it explicitly or implicitly affects the victim’s employment and unreasonably interferes with their work performance or creates an hostile, or offensive work environment.
That’s tons of ways to explain, but it’s probably more helpful to see the two broad categories lawyers mention when they’re explaining what qualifies as sexual harassment.
Quid Pro Quo
It is a Latin phrase that literally translates to “this for that” or “something for something”. In this context, it is used as the following, “if you [go on a date] with me, I’ll offer the work or you’ve got to have sex with me to get to stay at your job,”. When someone explicitly states or even implies that agreeing to sexual favours or any romantic involvement will determine whether they get the work or keep the work or get the promotion or a raise/ bonus/good performance review, that qualifies as Quid Pro quo form of sexual harassment.
Hostile Work Environment
This is the most common type of sexual harassment. This doesn’t include propositioning sex as a condition for employment or advancement. This includes sexual advances through innuendos, and comments also as other unwelcome conducts based on the idea of sex. This includes making snide remarks, touching, coming a little too close, cracking sexual jokes, etc.
The perpetrators generally know that one extreme incident can be considered severe enough by a court so they resort to smaller acts that might create a hostile work environment. These acts, when repeated, accumulate to become pervasive. In other words, they can be repeated on a day to day or weekly basis. It has been happening for years. This form of harassment is so prevalent that one simply cannot ignore how torturous it becomes.
Note: The person affected doesn’t need to be the direct target of those offensive comments or jokes. They don’t even need to be a part of the conversations, but even overhearing a foul conversation could be enough.
The law doesn’t spell out exactly what behaviours and frequency could make something rise to the extent of being termed a hostile work environment. It has been left to the court’s interpretation and depends on the time and place of the incident.
Acts that Courts accept as a hostile work environment are changing dramatically. The same goes for what is considered severe or pervasive behaviour. This may be a law that could change societal norms and therefore, the courts have accepted that change in its application. However, interpretation of cases by the judges also depends on whether the bench is conservative or liberal in nature.
Who’s Covered under Sexual Harassment Laws?
The Federal law of the US covers employers within the private and public sectors with 15 or more employees. The EEOC emphasizes that the harassers are often the target’s direct supervisor, a co-worker, or someone who isn’t an employee (like a client or customer).
Many states and cities in US have their own anti-discrimination laws, and it’s always worth reading of what additional protections the laws relevant to the scenario would possibly cover. For instance, NY City’s Human Rights Law covers all employers in the city’s organisations with four or more workers. If one is a US resident, they should study the norms of state laws regarding sexual harassment at workplace.
Things Covered in Sexual Harassment
Let’s start here with the caveat that the specific details of a case are important as different courts might rule things differently on some matters. But, there are several set of behaviours or incidents that could constitute sexual harassment within the workplace. Don’t take it as a comprehensive list.
- Conversations, questions, or stories about sex.
- Comments about someone’s appearance.
- Staring and searching up and down.
- Spreading rumours about someone’s sex life or using sex to surge ahead.
- Following someone around.
- Sexist comments that may or may not be sexual.
- Sharing suggestive emails, images, text messages, or other forms of electronic communications.
- Using Vulgar language, cracking jokes about sex (or gender), innuendos, and music with sexually explicit lyrics.
- Unwanted touching or physical contact.
- Displaying pornography or sexually explicit or any other degrading materials. This includes posters, calendars, screensavers, drawings, emails, and more.
- Requests for sexual favours or pressurizing someone for sex.
- Rape and sexual abuse.
- Threats on rejection of sexual advances.
Remedies for Workplace Sexual Harassment
This could be a private decision to work out the proper path to address such instances. One only needs to take legal advice tailored to their situation. However, we have compiled the following list of actions that can be taken to address these situations at the workplace.
Document the Instance
If you ask any legal firm an opinion on what an employee should do while facing sexual harassment. The first advice they would get is to keep a record of the instances. They can keep a list of saved mails, massages, screenshots, etc as proof of incidences.
General sorts of complaints often give the corporate an excessive amount of leeway to shrug these incidents as small matters of overfriendliness. In that case, these solid documented proofs could come handy. she explains. If the victim opts to report sexual harassment at work, it’ll help if she is ready to point out the specific dates, comments, or behaviours. So, whenever a colleague brushes up against your body deliberately or your boss makes you listen to a dirty story at the staff meeting, just write it down for your record.
This way helps the victim in reporting the instances of sexual harassment to their employer or the EEOC with a detailed account of incidents. Even if someone wants to switch to a lawyer, she will have the proper timeline of events that have happened which will further their lawyer to put together a stronger case.
Make It Clear It’s Unwelcome
Since the key element of workplace harassment is the fact that the conduct is unwelcome, make it clear to the person doing this if you feel that it is a relatively safer space. That’s the case if you are feeling safe doing so. Handling obnoxious behaviour by someone can be tricky if the person is doing it without the knowledge that it is making you uncomfortable. So, always let them know that you don’t like this behaviour. Sometimes, it makes the person change his ways.
Telling the person beforehand acts as an alarm to them so they can stop that behaviour. One can tell them about a certain type of behaviour or a certain joke or compliment is not welcome.
If the harassment still continues and the victim later plans to take the complaint to the employer, it will help to be ready to truthfully say that they’ve made it clear to the perpetrator that the conduct is unwelcome and asked for it to be stopped.
Consult a Lawyer
Theoretically, one doesn’t need a lawyer to report instances of sexual harassment to their employer or file a charge with the EEOC. However, if they discover that things are confusing and need advice on whether certain behaviours constitute harassment, or they have reasons to stress that their employer won’t respond effectively to the report, then they can opt for legal advice from any reputed law firm.
Some of the welfare firms offer free consultations. One can search for plaintiffs lawyers, or those specialising in representing victims of sexual harassment against the perpetrators or the employers supporting the perp. Consulting directories from the American Bar Association, NGOs like Workplace Fairness, or the National Employment Lawyers Association can also help them to find the right lawyer. Alternatively, they can opt for advocacy organizations like Equal Rights Advocates that offer free legal advice, referrals, and counselling sessions.
Make a Change
In a perfect world for women, there would be no such thing as sexual harassment at the workplace or anywhere. Maybe in a slightly less-than-perfect world, reports of sexual harassment would have been dealt with swift action and no negative consequences or judgment for the victim. Unfortunately, the story is far from being perfect. Even though the number of complaints about sexual harassment filed with the EEOC has increased since the advent of the #MeToo movement, and the conversations regarding workplace harassment have certainly evolved over the years, the reality is still grim. This can only get better with more reporting of cases with awareness among women regarding their rights. So, be that change and raise your voice so that others could follow.