Legal Definition of Sexual Harassment

The Civil Rights Act of 1964 (the federal law that prohibits discrimination based on certain protected categories) did not identify sexual coercion as unlawful. Starting in the 1970s, courts began to recognize quid pro quo (Latin for “this for that”) sexual harassment as a form of illegal gender discrimination.

Real-Life Definition

If you ask 100 average employees to define “sexual harassment” you’ll get 100 different answers. My guess is that you won’t get one that includes the legal definitions outlined earlier.

It’s extremely unlikely that an employee (or frankly, even a seasoned manager) understands the nuances related to whether the behavior was “objectively and subjectively unwelcome,” and whether it was “severe or pervasive.” Instead, when we ask people to define sexual harassment, we tend to get answers that describe offensive actions and corresponding feelings: “It’s when someone at work says or does something that is sexual and it makes you uncomfortable,” “It’s when someone at work hits on you, you say no, and now things are awkward,” or similar statements.

Despite varying definitions, what is clear is that the public views “sexual harassment” as prevalent and problematic. In fact, research indicates that “anywhere from 25% to 85% of women report having experienced sexual harassment in the workplace.”² A recent study by the Pew Research Center found that 6 in 10 women say they have been sexually harassed.³

As will be discussed below, the differences in the legal and layperson’s definitions of sexual harassment are vital to understanding and solving the issue. Too many companies have approached the issue through a legal lens, ignoring that it doesn’t match what most people believe is problematic workplace behavior. And even worse, too many companies take the view that the problem doesn’t require a response until it’s reached the critical point of illegality.  This misses the point—early intervention and early resolution not only shield a company from legal liability, but they also get to the real goal of creating a healthy culture.

Why the Behavioral Continuum Matters

Our failure to distinguish between the legal and layperson’s definition of sexual harassment has also created a lack of distinction between bad behavior, worse behavior, and illegal behavior. All misconduct needs to be addressed, but the manner in which it is addressed will depend on a number of factors, including where the behavior falls on this continuum. Too many people have mistakenly lumped milder behavior into the same bucket as egregious conduct, making it harder to solve the problem.

This failure to recognize the varying severity of workplace conduct and the harm that it causes is displayed in the ubiquitous zero-tolerance policies embraced by so many companies. Without explaining nuances such as what behavior is not tolerated and what the consequences are for varying types of misconduct, these policies end up doing more harm than good. The implication is that the same price will be paid for one sexually tinged joked as for sexually charged physical conduct like sexual assault. In practice, this creates fear and confusion for men and women. Men think, “Will I be fired for making a joke or giving a compliment?” Women think, “I better not report the behavior since doing so might get that person fired [which is usually the implication in a zero-tolerance workplace].”

On the other end of the spectrum, failing to differentiate between bad, worse, and illegal behavior results in a decreased likelihood of addressing and resolving problems early. Sexual harassment often starts with milder behavior and escalates if no one stops it. Common precursors to workplace sexual harassment include sexist or misogynistic statements, a devaluation of women, behavior that shows gender bias, sharing offensive or sexually charged images or jokes, or milder physical contact (hugs, shoulder rubs). If companies aren’t precise about the behavioral continuum and send a message that giving a compliment is the same as demanding sex, employees (targets and witnesses) are less likely to intervene at the mild end of the behavior spectrum. That leaves the door wide open for mild behavior to quickly escalate and eventually become unlawful sexual harassment.

The Law Is Your Friend

The irony about companies viewing legal principles as the enemy is that, when viewed correctly, the law provides a valuable framework that essentially amounts to a built-in methodology to simultaneously avoid legal liability and, more important, to create a healthy workplace culture.

With a few exceptions based on state law, organizations are generally shielded from legal liability if they can show they have taken reasonable steps to create an environment where employees feel safe reporting concerns, where those concerns are taken seriously and therefore investigated fully and fairly, and proactive and effective measures to stop any identified misconduct are taken. (For more on investigations, see Chapter 11.)

That means that taking a big-picture approach insulates companies from lawsuits not only because happy employees tend not to sue their employers, but also because companies are not legally liable if they have an environment in which employees are given tools to resolve issues before they escalate, are provided with a number of avenues to raise concerns if they need help solving issues, trust the system to investigate allegations of misconduct, and know their company deals with proven cases of misconduct in an even-handed way.

Viewed this way, the law actually provides employers with a road map for preventing lawsuits. In fact, the law provides an almost foolproof early intervention system that should encourage employers to welcome complaints of misconduct. Here’s how:

• Teach employees and witnesses how to safely and effectively intervene early (this requires learning a new language that is precise and also involves emotional intelligence—knowing when and how to speak up). (For more on techniques to communicate precisely and persuasively, see Chapter 8.)
• Teach employees to be empathetic and get a better understanding of how their words or actions might be perceived as hurtful or demeaning. Give them an incentive to listen and do better.
• Establish a culture of trust and truth-telling where every employee knows HR and the rest of management is available and will provide an avenue to be truly heard (this is more than just saying you have “an open-door policy”).
• Develop systems that are actually fair and also inspire trust and a perception of fairness. Follow the systems you’ve developed.
• Fix problems. Really. No matter who is involved. This means putting ethics and integrity above all else.

Consider Making an Early Intervention System a Formal Program

For companies that are ready to do away with compliance blinders and instead focus on culture, consider making an early-intervention system a formal part of your workplace.

As outlined above, the law essentially provides built-in guardrails. Take advantage of those safeguards. Establish authentic methods to prevent misconduct and establish ways to make sure misconduct doesn’t rise to the level of illegality. Ever. If you know about misconduct, don’t turn a blind eye to it. Address issues early by teaching employees to resolve conflict on their own when possible, but make it clear that management is there to help when that’s not possible. If you do find out about misconduct, through observation or a report, address it. Investigate it and fix it if you find a problem. And fix it every time and in an even-handed way.

Re-read this paragraph. This is what the law says you must do. And if you take these steps, you’ve complied with the law. Even better, if you do these things, you’re guaranteed to make your culture healthier, and you’ll drastically reduce workplace drama.

If you’re ready to establish a formal early-intervention system, simply take those requirements and flip them around:

• Rewrite policies to focus on the prevention of behavior that demeans or excludes so that it never reaches the level of unlawful harassment.
• Provide training that includes legal definitions and examples, but also identifies behavior that might not be unlawful, but still needs to be addressed and fixed. Provide education on how employees can resolve this low-level, early conflict on their own. Establish a way to help if your employees are uncomfortable or unable to resolve the issues alone.
• Encourage and welcome reports. Take each report seriously.
• Develop a two-track system for reports. If you determine the report is one that requires a formal investigation, refer that to your investigation unit (see Chapter 11 for ways to conduct effective investigations).
• If, however, the concern doesn’t warrant an investigation, send that concern to your second track. This could be a system of restorative justice, perhaps led by an ombudsperson or a workplace mediator.
• If the concern is on the formal investigation track, make sure you implement effective remedial measures that address the misconduct; measures that seek to stop the behavior. Also use forward-looking accountability principles (see a discussion on this in Chapter 7). This means that, in addition to disciplining the person who engaged in misconduct, use each investigation as a learning lesson to make it less likely that the misconduct recurs.
• If the concern is on the second, less formal track, develop a way to fix the problems found, and again use both backward-looking and forward-looking accountability principles.

It’s time to stop viewing sexual harassment law as an enemy or something companies must endure. Instead, take advantage of the roadmap the law provides so that you not only eliminate the risk of liability, but you also eliminate drama along the way.

A Culture of Complicity

A comprehensive study of workplace sexual harassment confirms what practitioners have known for decades: The strongest predictor of organizational sexual harassment is a corporate culture that tolerates the behavior. In other words, a company that accepts, enables, or encourages misconduct will have a sexual harassment problem.⁴

A landmark 2018 report summarizes leading research on the topic and finds that harassment is less likely to occur in organizations that take it seriously. Specifically, a healthy culture:

• Acts as a deterrent against misconduct and
• Encourages employees to speak up about the misconduct.

These are critical points and worth reiterating.

In an organization that is serious about creating a culture of trust and respect, bad actors are less likely to misbehave.

In an organization that is serious about creating a culture of trust and respect, employees feel safe speaking up about misconduct, whether it’s targeted toward them or others.

If we’re serious about stopping harassment in its tracks, it’s time to change the corporate mindset from compliance and complicity to courage and compassion.

Male-Dominated (or Male-Only) Leadership

The second most potent predictor of sexual harassment identified by the 2018 study is whether men outnumber women at an organization, especially if that gender disparity occurs at the top of the organizational chart.⁵

Having too few women, especially in leadership, means the issue of harassment is viewed through a one-sided lens. Men and women view issues related to harassment differently. Not better. Not worse. Just differently.

In a first-of-its-kind study, Emtrain partnered with In the House to survey in-house counsel on issues related to workplace sexual harassment. One key finding was that there is a gender divide when it comes to identifying harassing or offensive behavior, and an equally wide gulf between perceptions of whether women suffer negative repercussions as a result of objecting to unwelcome conduct.

“Simply put: men and women do not see eye-to-eye when it comes to the presence of sexual harassment.” The data showed that “[W]hile zero percent of men [surveyed] perceived sexual harassment as being ‘very prevalent’ at their company, 3% of women did. At the other end of the spectrum, while 23% of men [surveyed] said sexual harassment was nonexistent in their organization, less than half as many—only 10%—of women believed this was the case.”⁶

The gender divide was most prominently displayed in a side-by-side comparison using both internal and external research data:

Whereas 6 in 10 male respondents in the Emtrain/In the House survey said sexual harassment rarely or never occurs in their workplace, a 2018 study by the Pew Research Center found that 6 in 10 women say they have been exposed to sexual harassment in the workplace (see Figure 2.1).⁷

These statistics came to life in the survey comments. The striking contrast between the perception of the prevalence of behavior that might be called out as “harassing” was highlighted in two divergent comments:

1. Male respondent: “The male owner of the company would sometimes have consensual sexual relationship with female employees who worked for the company.  The women did not object to these affairs, and there were no overt threats if the women refused sexual advances.”
2. Female respondent: “Women are scared to reject men because they think it can impact their job.”

Beyond the issue of whether harassment is prevalent, survey participants were asked about the effectiveness of their companies’ reporting, investigation, and resolution systems. Taking just one data point on this topic, many more women (27%) as compared to men (12%) reported that employees did not feel comfortable reporting misconduct.

One woman shared her experience. Her comment illustrates one important reason for the underreporting: “When I reported behavior [involving] 4.5 years’ worth of incidents, the investigation took less than 24 hours, I was put on a PIP [performance improvement plan], then laid off the next week with no severence. And, this [was in] big oil.”⁹

In fact, a significant percentage of in-house attorneys responding to the survey pointed to working in male-dominated industries or companies.

The research on the topic of the gender divide points to the same conclusion—women must be equally represented at the table of influence that determines the best ways to prevent and address workplace sexual harassment. Organizations that are making decisions on the topic based only on their male leaders’ view of sexual harassment are missing a critical voice in that decision-making.

Frank Dobbins, a Harvard professor known for his groundbreaking research on issues of harassment and diversity, put it this way:

Male-dominated management teams have been found to tolerate, sanction, or even expect sexualized treatment of workers, which can lead to a culture of complicity. People may chuckle over misbehavior rather than calling it out, for example, or they may ostracize harassed women, privately ashamed of not having spoken up. Reducing power differentials can help, not only because women are less likely than men to harass but also because their presence in management can change workplace culture.¹⁰

Compliance Blinders

The combination of a culture of complicity and a male-dominated leadership creates an environment that could give rise to workplace sexual harassment. An additional ingredient that creates an even stronger likelihood of sexual misconduct at work is leadership that views issues through a narrow compliance lens.

Anyone who has attended a compliance workshop has heard phrases such as “document everything” (which becomes code for “we want to have documented evidence for the inevitable lawsuit”), “always have a witness and get things signed” (which becomes code for “we don’t trust our employees . . . they will almost certainly call you a liar at some point”), and my favorite “if it isn’t in writing, it didn’t happen” (which becomes code for “judges and juries lose all common sense when making decisions and will see you as a liar if you don’t write everything down”).

Rather than sending a message of: “We trust our employees and strive to treat them respectfully, share information with them transparently, and provide a safe and inclusive environment,” companies with this outlook send the opposite message: “We are paranoid about getting sued by our employees and therefore will give lip service to wanting to create a healthy culture, but what we really mean is that we will take defensive measures to keep you in your place.”

That’s hardly the message that a company striving for a healthy and inclusive culture—and a reduction of workplace drama—wants to send.

The Harassers: Why They Harass and Who Is More Likely to Harass

There are a number of issues that research and experience show influence a harasser’s decision to misbehave. They include:

• A perception of high worth, with minimal accountability;
• Toxic personality characteristics; and
• Power imbalances that are exploited.

Issues Related to Targets: How Prevalent Is Harassment and How Frequently Is It Reported?

Despite laws prohibiting harassment, decades of companies focusing on creating “zero-tolerance” policies, and lawsuits exposing distressing examples of workplace misconduct, we have failed to do away with workplace harassment. A fact brought to light by the #MeToo movement is that sexual harassment is widespread. Many, including those of us who have been in the business of workplace drama for decades, know that the examples highlighted by #MeToo are only the tip of the iceberg.

The 2016 EEOC report explored the issue of the prevalence of workplace harassment, the differing definitions of harassment, and the phenomena of severe underreporting of the misconduct. As noted earlier, various metrics put the percentage of women exposed to harassment or sexually charged or gender-biased behavior at work at anywhere between 25% and 85%.¹⁵ The Pew study previously cited puts that percentage at 60%.¹⁶

Unfortunately, the vast majority of misconduct is not reported. In fact, the evidence is overwhelming: Most misconduct involving sexually charged or gender-biased behavior is never reported internally (through employer-sanctioned complaint systems) or externally (through governmental enforcement agencies or in the court system). The EEOC report cites data indicating that “roughly three out of four individuals who experience harassment never even talked to a supervisor, manager, or union representative about the harassing conduct.”¹⁷

The report also cites research exploring the reasons for the failure to report. In short, the researchers conclude, “employees . . . fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.”¹⁸

Issues Related to Bystanders: Does It Affect Them and Do They Intervene?

Bystanders are individuals who either observe misconduct firsthand or hear about the misconduct from someone else.  This includes both “passive” bystanders (those who take no action) and “active” bystanders (those who take action to prevent or reduce the harm—often referred to as upstanders).

An approach most cutting-edge workplaces are taking is to focus on helping witnesses go from passive bystanders to active upstanders.

Upstanders can, individually or collectively, have a tremendous impact on workplace sexual harassment—preventing it, stopping it early so that it doesn’t escalate, and helping to fix it if it does occur. Upstanders have opportunities to help by reporting the problem on behalf of the target, supporting the target in making a complaint, offering support or advice to the target, or directly confronting the bad actor (as the conduct occurs or afterwards).

It’s helpful to outline the general ways in which bystanders can and must play a role to achieve our goal to prevent and address harassment. One important issue is exploring what motivates a bystander to act. There have been numerous studies looking into “bystander apathy.” The studies that specifically look into the issue at work have identified several factors that influence a bystander’s decision whether to act, including:¹⁹

• Identification with the target: Observers who perceive themselves to be similar to the target of the injustice and, therefore, identify with them are more likely to act.  This means that focusing on an inclusive workplace—one where people feel connected no matter their gender, race, ethnicity, political views, upbringing, or work style—is key. Employees who are working together toward a common mission and who therefore feel connected to each other are more likely to speak up on behalf on someone they see is being exposed to misconduct.
• Perception of injustice: In addition to the issue of connection, witnesses who identify with the target are also more likely to perceive the behavior itself as an injustice and are therefore more likely to act. Studies also show that witnesses will look to the reaction of the target—is that person showing signs of discomfort? If so, the bystander is more likely to act. This means that in addition to providing a means of connection, the organization must make clear to those targeted that it’s okay to express discomfort . . . that simply going along is not the expected behavior.
• Organizational climate: When an injustice is perceived, an observer’s decision to respond is largely influenced by the organizational environment. This means that bystanders are exponentially more likely to become upstanders if they work in an organization that says what it does and does what it says. If a company is open to receiving and fairly resolving complaints and if bad actors are subject to consequences, a bystander will feel safe to intervene.

In short, an observer’s decision about whether to intervene (individually or collectively) depends on the perceived costs and benefits of speaking up.

Companies would be wise to educate everyone on ways in which they can become responsible upstanders to stop bad behavior before it escalates.

How Corporate Complicity Factors into This Reality

Every one of the issues related to individuals, while important, only serves to highlight the importance of the overall corporate climate. Even if an employee (or leader) with a propensity to harass joins a company, the chances of harassment actually occurring are minimal if that company has an authentic culture of respect and inclusion. In a healthy culture, these employees will either temper their behavior once they get the message that it’s unacceptable, or they’ll be stopped in their tracks by brave employees who know their company has their back (or the bad actor will opt to leave the company if he isn’t allowed to do what he wants).

Promote a Culture of Precise Communication

Communicate your values clearly and persuasively. Begin with an authentic message that your company stands for respect, civility, and belonging. Define, live, and color that message in. Tell your employees and your leaders what you expect in terms of behavior, integrity, and ethics. Be very specific—without specifics, people will interpret “harassment,” “inappropriate,” “unprofessional,” and “civil” in varying ways.

Communication is a two-way street; do your part as a corporate leader to communicate precisely and persuasively, especially on complex and sensitive issues like workplace harassment.

Here are some tips on using communication skills to effectively identify, prevent, and stop harassment:

• Replace “we promise a harassment-free workplace” with: “We are committed to being a world-class company that values respect and inclusion. It goes without saying that we do not tolerate unlawful harassment, but that’s the floor, not the ceiling. We strive to do much better than the minimum that the law requires from us.”
• Replace “we have zero tolerance for harassment” with “rest assured that we will not only investigate claims of misconduct, but that we will take swift and even-handed action that is commensurate with the level of misconduct our investigation uncovers.” (For more on investigations and remedial measures, see Chapter 11.)
• Don’t just write a policy that prohibits unlawful harassment, write one that says: “Here is the definition of unlawful harassment. While it’s important that all our employees understand what unlawful behavior looks like, what’s more important to us is that you understand that we’re committed to far more than just following the law.  We want to create an environment where employees feel safe to speak up when they hear or see something that goes against our core values of respect, civility, and inclusion. We’ll provide you with tools to intervene yourself if you’re comfortable doing so. But if you’re not, then we are committed to providing you with channels through which you can raise your concerns, knowing that they will be taken seriously and that we’ll view them as an opportunity to make the workplace better for everyone.” (For more on how to write clear-cut and strong policies, see Chapter 9.)
• When you provide harassment prevention training, don’t focus about what employees and managers can’t do; instead talk about what they can and should do. Provide realistic (preferably real life) examples of nuanced behavior so that everyone is not only on the same page about what is acceptable and unacceptable, but also so they can practice the skill of using their best judgment when they encounter a difficult situation where the answer isn’t clear cut. (For more on how to provide great training, see Chapter 10.)

Develop a Culture of Courage

Advertise something unique: your company’s early-intervention system. Make everyone comfortable with early intervention. This means employees and bystanders. It also means HR, the legal department, and members of the C-suite. A courageous culture equals a proactive culture. A proactive culture is always one step ahead of misconduct.

Despite myths and legends that have convinced many workplace leaders to see the law as the enemy, be audacious enough to view legal principles about sexual harassment as your best friend and your best defense against a lawsuit.

How do you do this? You follow the early-intervention system that the law has laid out for us, but that no one has bothered to engage.

• Empower everyone to speak up. Teach them how to do so respectfully but firmly. This doesn’t mean you make your employees into members of the civility police. If they have a deep and clear understanding of your company’s core values, they’ll be able to distinguish between good-natured comments and those that have the potential to create workplace drama.
• Make sure departments like HR, risk management, finance, and legal are on board with these concepts. Use your best powers of persuasion to help them see that an early-intervention system is not only the best way to avoid getting sued, but it will also improve loyalty, retention, and, yes, profitability.
• Rework policies, practices, and training on issues related to reporting, investigating, and resolving concerns about harassment. Reject the idea that not hearing any complaints about harassment means there must not be a problem. It might mean that. Or it might mean that there is a problem, you just don’t know about it.  This is probably because employees are too scared to speak up, or they have no trust in the system.

Cultivate a Culture of Truth-Telling

Encourage reports. Really. View reports as your best opportunity to deal with workplace drama early. Before it becomes too big to solve.

Be a champion for a culture of truth-telling: Reinvent corporate attitudes toward reporting workplace concerns. Employees are talking—and what they’re sharing often isn’t pretty. If they’re not sharing stories at work, they’re posting on employer review sites, sharing on social media, or writing blogs: Employees will get the word out. Today’s reality means that ignoring the problem of sexual harassment in your workplace doesn’t make it go away, it only robs you of the opportunity to control the narrative.

It pays to be proactive—and to encourage employees to do the same. If you become aware of issues related to overly aggressive, wholly unprofessional, or harassing conduct, deal with it. Quickly. Fairly. Employers who take this type of proactive stance are almost always able to address issues before they become impossible to fix. Think of the time, energy, and money you’ll save by nipping issues in the bud. And imagine the brand reputation you’ll create as a result.

Foster a Culture of Equity and Inclusion

Don’t just pay these concepts lip service. Do more than develop an employee resource group or expand your recruitment efforts to attract diverse candidates. Hold people accountable—for doing good and for behaving badly. And make sure your practice of accountability is fair, consistent, and even-handed.

If you’re worried about pay equity, then be proactive and courageous—take a page out of the Salesforce playbook. When two brave members of Salesforce’s executive team (both women) took their concerns about possible pay equity to the company’s CEO, they hardly expected that he would not only agree to conduct an audit, but that he’d be willing to fix any gaps they found, that he’d be willing to share what the company did with others, and that he’d make that a constant project since he knew that taking your eye off the equity ball would get you right back to where you started.²⁰ Now that’s courage personified and it’s a genuine commitment to inclusion and equity.

And when it comes to making decisions about how to discipline those who engage in misconduct, be equally meticulous about sticking to your promise to be fair and equitable. Skip the short-sighted cost-benefit analysis: “It was a business decision” is a justification many companies who cover up for serial sexual harassers offer for their actions.

Every time a company makes a decision based on the “value” the harasser brings, they neglect to do simple math—by failing to subtract the cost of keeping him around. And that cost adds up to much more than just settlement amounts and legal fees. It’s also high employee turnover, low productivity, dipping morale, and an incredibly negative effect on brand reputation—not to mention adding a hefty “crisis management” line item to your P&L.

In short, there is no good business reason for tolerating this behavior. And beyond the “traditional” business analysis of looking at profit and loss, a company that tolerates, enables, or encourages this behavior will send a strong message about its culture—and the message is one that fewer employees find tolerable. This then becomes an issue of brand management, talent acquisition, and retention.

You can’t go wrong if you keep equity and inclusion at the center of your decisions.

Create a Culture of Continuous Learning

Develop a comprehensive plan to make sure everyone at your company knows that issues related to the health of your corporate culture is a journey, not just a one-time event to celebrate the launch of your new mission statement.

Don’t get me wrong, I want you to celebrate when you finish the hard work of updating your mission statement or your workplace policies. Just don’t stop there.

Make sure you develop timelines for reviewing your work. If you implement new ways to deal with sexual harassment, understand that you will need to test and tweak those new systems. Make sure your employees understand that you’re committed to this endeavor. That you don’t see this as a one-and-done task, but rather as a long-standing and authentic commitment to creating a healthy workplace culture.

. . .

Implementing these five action steps is a great place to start on the road to identifying, preventing and addressing sexual harassment. By doing so, you’ll reduce or maybe even eliminate workplace drama. And although I’ve said this a few times, it’s worth repeating, especially when discussion is related to sexual harassment. Nothing in this chapter or in this book is meant to restrict employee fun. Respectful does not equate to boring. Professional need not be the same as robotic. Inclusive doesn’t mean monotonous. Your workplace can (and should) be simultaneously committed to respect, civility, and inclusion and to playfulness, friendship, and lightheartedness.