What Does ‘Sexual Harassment’ Mean Today?

harassment

After flaring up as a hot topic 25 years ago at the confirmation hearings of Clarence Thomas to the U.S. Supreme Court, sexual harassment gained renewed attention in 2016 with high-profile incidents including Harvard canceling its men’s soccer team season in November after school officials discovered that players were rating the school’s female players in sexually explicit terms. And Fox News chairman Roger Ailes resigned in July after on-air personality Gretchen Carlson sued, alleging that he co-mingled career advances and sexual advances.

Perhaps most prominently, sexual harassment became a key issue in the presidential election, with allegations and criticism surfacing over President Donald Trump’s past treatment of women, including a leaked videotape where he bragged about groping women, while his supporters countered with sharp words about the behavior of Democratic candidate Hillary Clinton’s husband, former President Bill Clinton, who famously had an affair with a White House intern.

It is not yet clear what the trickle-down effect may be for most Americans. Could increased attention paid to sexual harassment lead to a new era of awareness – or could it translate into more misogyny in the workplace?

“Leaders in any organization set the tone and culture for everyone; they establish what is acceptable and what is not through their words and actions,” says Maya Raghu, director of workplace equality for the National Women’s Law Center. “It’s entirely possible that incidents of sexual harassment will increase — harassers may now believe they can act without consequences. At the same time, victims now may be more fearful of reporting the harassment because of retaliation, and because they may feel their report will not be taken seriously or addressed. So, it’s even more important for employers to be proactive about sexual harassment in the workplace and be clear that it’s not acceptable.”

“Leaders in any organization set the tone and culture for everyone; they establish what is acceptable and what is not through their words and actions.” –Maya Raghu

Others are not so sure that incidents of harassment will increase. Wharton legal studies and business ethics professor Janice Bellace says that while workers generally do not know specific law, most are aware that their company has some policy that prohibits sexual harassment. “The question then becomes what are the behaviors that the average employee thinks constitute sexual harassment?” says Bellace. “Thirty years ago, working women put up with a lot at work that would not be accepted today, such as being touched and patted in sensitive areas like breasts and buttocks. The big change is that men now realize that you cannot do at work what you may do in private social settings and that they can get into trouble at work if they touch, pat or leer at women. My own view is that Donald Trump becoming president will have no impact on the general perception that this is unacceptable.”

Slippery Statistics

Trump’s leaked comments about groping women indicate that he was exploiting a special position, says Bellace, and that raises other concerns. “He was the CEO. The view that the powerful man at the top can avail himself of women in his employ has been around for centuries,” she notes. “For instance, the droit du seigneur highlighted in Mozart’s The Marriage of Figaro or the modern-day married CEO in the film The Apartment who sleeps with the female elevator operator and uses Jack Lemmon’s apartment. What is different is that since the 1970s, the CEO is subject to the same law as everyone else.”

However, everyday experience indicates that a woman who might complain about her supervisor is much less likely to complain about the CEO’s behavior, Bellace says, adding that she expects “that this will continue to be the case unless corporate boards make it very clear that the policy applies to everyone and are willing to take action against offending CEOs and top-level managers.”

What is the everyday experience regarding sexual harassment for male and female workers? Sexual harassment has declined in the past few years, according to figures from the Equal Employment Opportunity Commission, to 6,822 charges filed with the agency in 2015 from 7,944 in 2010. Most of the charges came from women, with only about 17% from men. But many experts say these figures do not capture the full picture. One in three women reported having been sexually harassed at work in a 2015 Cosmopolitan magazine survey of 2,235 full- and part-time female workers between the ages of 18 and 34. The vast majority of these women — 71% — said they did not report the incident.

The EEOC figures may reflect a drop not because there is less sexual harassment going on, but because many firms now have a mechanism for preventing complaints from being filed: forced arbitration clauses that keep these cases out of court. In many jobs, employee contracts or handbooks contain language that requires complaints to be handled in private arbitration forums. “In most cases the companies pick the arbitrators and the outcome is kept confidential, so basically you never know what happened and it prevents people from coming forward,” says Raghu. “This is becoming increasingly common, and if you are in retail or fast food, you don’t have a lot of bargaining power. You are going to sign it.”

A Cornell University study of 3,945 cases that went to arbitration found that the employee win rate in arbitration was 21.4%, lower than in cases pursued through litigation, and that both the mean and median award amounts were substantially lower than in litigation. “The results also indicate the existence of a significant repeat employer-arbitrator pairing effect in which employees on average have lower win rates and receive smaller damage awards where the same arbitrator is involved in more than one case with the same employer, a finding supporting some of the fairness criticisms directed at mandatory employment arbitration,” wrote Alexander Colvin, author of “An Empirical Study of Employment Arbitration: Case Outcomes and Processes,” published in 2011 in The Journal of Empirical Legal Studies.

Others have also sensed that the deck is stacked against workers. President Barack Obama signed an executive order in 2014 barring forced arbitration by federal contractors with contracts of more than $1 million, and the use of forced arbitration in general has been widely derided.

“The view that the powerful man at the top can avail himself of women in his employ has been around for centuries.” — Janice Bellace

Wharton management professor Nancy Rothbard says that sexual harassment “is still somewhat of a taboo for people to discuss in the workplace, and we do have a ways to go on it.” Part of the taboo may stem, paradoxically, from an attempt to deal with it better. In many workplaces, managers are obligated to report up the chain of command anything they learn about which might constitute sexual harassment. They are not permitted to simply listen, and then not act in some way. “That is really good in some ways, but hard in others,” says Rothbard. “From a procedural standpoint, this helps ensure managers aren’t inadvertently suppressing the reporting of issues. So, in this way, we’ve seen progress. But there also may be some unintended consequences. If an employee knows the manager is obligated to report the issue, they may not seek advice and discuss their concerns with their manager.”

Blurred Boundaries

If sexual harassment is hard to quantify, it can also be difficult to define. “There are very clear definitions of sexual harassment legally, but in terms of people’s lived experience, these things aren’t quite as clear-cut as we might hope, and I think some of those fuzzy areas are hard for people to sort through,” says Rothbard. “There are the clear instances of sexual harassment, where someone does something clearly inappropriate and 95% of people agree it should not have happened. Those things happen, but they are probably rarer than some of the other instances in which the boundaries are blurred and it is not as clear whether it is sexual harassment or not.”

“Often it boils down to the fact that many people have trouble hearing how they are coming across to others — that someone in a position of power can say the same things as someone lower on the chain, and the way it’s interpreted is completely different,” says lawyer Daniel P. O’Meara, a senior fellow for Wharton’s Center for Human Resources. “It’s kind of like the boss thing where everything he says is funny, as opposed to everyone’s laughing just because he’s the boss.”

The legal definition of sexual harassment falls into two categories, notes O’Meara: “The quid pro quo … is easily understood — ‘if you want more hours, sleep with me, or if you want the promotion, you have to sleep with me.’ Most cases don’t involve those types of allegations. Most are about a hostile work environment — the type of thing that precludes you from doing your job effectively because of sexual tension. He’s always asking you out, or it’s hard to concentrate on work because [the situation is] demeaning. It has to be something that not only offended you, but would have offended a reasonable person.”

Companies can use sexual harassment seminars to head off problems — and yet new wrinkles keep coming. More employees are using social media and are working from home, and they can forget that these places are an extension of the workplace, says Chastity C. Bruno, a partner in the Philadelphia office of Montgomery McCracken. “Many employers monitor their cyber employees on Skype, or other similar types of software applications,” says Bruno. “The employees, however, have another computer set up where they are chatting on Snapchat or other tools with other employees, and because people are multitasking, or they are running dual screens, they are not thinking that that information is being recorded, and they don’t necessarily think it’s anything bad. Although, there could be a conversation between two employees having locker room talk, and someone else joins the conversation and they are offended. Employees can’t do that because it could be considered harassment.”

“Often it boils down to the fact that many people have trouble hearing how they are coming across to others.” –Daniel P. O’Meara

Laws and policies are all fine and good, but that can’t be all, says Raghu. “There is always policy, and then there is the actual practice and implementation and the reality of people’s lives,” she says. “Companies might have a policy, but is it a living, breathing document that people know about? And can they feel confident that there will be action taken? Or are they not coming forward because they feel they are going to be retaliated against? Law is important, but it can only go so far. What is really going to change things is a cultural shift.”

Raghu points to a sector that has achieved a shift on sexual harassment — not on Wall Street, Silicon Valley or in the groves of academe, but on the tomato fields of South Florida. Sexual harassment is found in every sector, but abuse in the agricultural industry has been especially severe, with a 2012 Human Rights Watch study finding that 80% of workers had experienced it. But an awareness and training program started by the Coalition of Immokalee Workers (CIW) has greatly reduced incidents of sexual harassment and sexual violence on farms in the region, southeast of Fort Myers, by giving both workers and companies certain carrots and sticks. Large growers adopt a zero-tolerance policy for sexual harassment and other abuses, and a wage increase goes to workers. A firm audits progress. Raghu says that companies not adhering to guidelines could be barred from selling, and harassers could be fired or barred from working for a season or several seasons.

“[The Fair Food Program] was the result of years of really hard work and advocacy by CIW,” Raghu said. “At the same time, they’ve got companies who are their partners who are interested in really being leaders and attracting the best workers. If workers are sexually harassing other workers, there are market-based consequences. It’s not only a policy, and it is taken very seriously. It’s leading to a change in the culture of the industry as a whole, and improving the lives of the workers.”

No incidents of sexual harassment were reported by 70% of the growers in the 2013-2014 and 2014-2015 growing seasons, says Laura Safer Espinoza, a retired New York State Supreme Court justice and executive director of the Fair Food Standards Council, which monitors and enforces the program. “That’s pretty remarkable — and we have a very broad definition of sexual harassment, from verbal harassment to unwanted attention — for there to be no complaints,” she says. “Before, when we asked workers if they would let their mothers or sisters work in the fields, they said, ‘No way.’ Now, you see more women in the fields, and workers say it’s much calmer. The language is better. Women don’t have to feel uncomfortable as they did before.”

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