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How to Know Workplace Sexual Harassment When You See It
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How to Know Workplace Sexual Harassment When You See It

Leigh Anderson, Gawker Media

Angelica Alzona

Since the New York Times broke the story of Harvey Weinstein's many, many years of predatory sexual behavior, the floodgates have opened. Men in fields from entertainment to journalism to politics have been accused of sexual harassment and assault, taking down the unlikeable and repugnant (Weinstein) to the honored and even beloved (George H.W. Bush; Elie Wiesel).

This is not especially shocking, at least to half of us-I don't know a single woman who hasn't been sexually assaulted or harassed at some point in her life. What is surprising is how these men are apparently now being held accountable-TV shows not renewed, new magazines shut down, movie premieres canceled. (I mean, we'll see how long it lasts-I expect at least a few of these guys will rehabilitate themselves in the next few years, or least take a turn on Dancing with the Stars .)

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In all these accounts of women fielding vile male behavior, what's resonated the most with me are the stories of women who didn't triumph-who didn't go on to become major Hollywood actresses, or journalism stars, successful despite the bad behavior of their bosses and colleagues. In the face of workplaces in which they were harassed and the perpetrators not punished, some women hung on and gritted their teeth; others found other jobs; still others, demoralized, left their fields entirely. One woman, harassed by Michael Oreskes, the former editorial director of NPR, told Vox that the worst result of the whole ordeal was "the fact that he utterly destroyed my ambition."

Sexual Harassment or Boys' Club?

In my late 20s, I decided to be an eternal freelancer. I've always claimed this is due to a somewhat misanthropic nature and a dislike of office life, but if I'm honest, it's also because I just didn't want to be subjected to the power dynamics of corporate culture-power dynamics that often involved young women and older men in positions of power over them. Media, when I was starting out, was male-dominated, and the men didn't hide their sotto voce snickering with one another about their female colleagues' looks and sexual availability. Even in a workplace in which no one is whipping out their dick, it's sometimes hard to tease out what is sexual harassment (the kind that's actionable or prosecutable, at least in theory) and what is "merely" that subtle, gendered exclusion known as the boys' club.

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I've made a decent career for myself since then-it's no accident that most of my contacts now are women-but I do sometimes wonder what my life would look like if I had been better able to navigate the men in my field. A lot of us women just...leaned out, or left entirely. Rebecca Traister recounts the story of a women so demoralized by the men in book publishing that she switched fields entirely-to renovating homes in rural Pennsylvania.

I laughed off all of the gendered incidents that occurred in my earlier working life: the butt grabs, the dirty jokes, the not-quite-inaudible comments about women and their capabilities. But "laughing it off" is itself a form of gaslighting-you pretend to others that it's not a big deal, you tell yourself it's not a big deal, and 20 years later you're renovating houses in rural Pennsylvania and have nearly forgotten you had other dreams.

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This is the kind of morass ( Is it sexual harassment? Is it gendered discrimination? Or am I simply not getting along with my colleagues? ) that could cause a person experiencing harassment to doubt themselves and their capabilities. And so I'm asking: How can we absolutely know sexual harassment when we see it? In every inappropriate-to-menacing interaction I've had with men, there's been a moment when I asked myself, "Did that really happen?" How can we know what's merely a bad joke, or a sincerely misdirected text, and what's targeted, gendered discrimination?

The Law

Eric Bachman, an employment lawyer at Zuckerman Law who handles sexual harassment and glass ceiling discrimination cases, wrote in an email, "Much of the recent reporting on sexual harassment has focused on the blatant behaviors (such as sexual assault and groping) of high-profile figures. A far more common type of harassment, however, involves less obvious conduct in workplaces around the country that lack the headline-grabbing attention of Hollywood. And this more subtle form of discrimination can also be unlawful under Title VII of the 1964 Civil Rights Act and other laws."

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However, he emphasizes that the law doesn't guarantee an office civility code, and that when hearing cases, courts are going to apply a "reasonable person" standard: "Would a reasonable person in the employee's shoes have felt that the conduct was offensive? If so, then the employee will probably be able to prove the harassment was unlawful. The reality is that different courts assess hostile work environment claims in different ways and no precise mathematical test exists to gauge when harassment crosses the line from simply obnoxious to illegal."

So what is this "less obvious" but still actionable conduct? Well, for one, it doesn't have to be specifically about sex-it can be general comments about a person's gender, like "women can't do this kind of work." It also doesn't have to be directed at the person complaining-if a co-worker is making vulgar jokes about women, even if they're not directed at you, that's a problem.

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Kathleen Peratis , an employment lawyer and partner at Outten and Golden in New York City, says: "As a legal matter, the hostility has to be either severe or pervasive ." Severe is a Weinstein/Louis C.K. kind of situation, or the classic boss-chasing-you-around-the desk, or an explicit quid pro quo . But the more subtle markers of a hostile environment are "a drip drip drip," she says - the sexist jokes, the snickers, a colleague "accidentally" letting you see porn on his computer. "That's pervasive," she says. "Sometimes it's things that aren't sexual at all, except when you put them in context," says Peratis. "Even though a particular comment isn't about sex," like a colleague exhibiting too much lurid interest in your dating life," you can see that it's creating conditions that are interfering with your ability to do your job: a hostile work environment.

This doesn't necessarily mean it's easy to prove. Says Bachman, "The basic framework that an employee must prove to show that they work in a "hostile work environment" is:

  • She was subjected to unwelcome harassment;
  • The harassment was based on sex;
  • The harassment unreasonably interfered with her work performance; and
  • The employer knew or should have known about the harassing conduct but failed to take corrective action."

Ellen Pao, who had been a junior partner at the Silicon Valley venture-capital firm Kleiner Perkins Caufield & Byers, launched a discrimination suit that went to trial in 2015. Pao alleged that Kleiner Perkins " [created] an atmosphere of both insidious and overt sexism that stymied her career. " Her suit claimed that a male partner harassed female employees and in one instance made a pass at a woman while he was dressed only in a bathrobe (what is it with these guys and bathrobes?). Pao had had a brief relationship with him; she claimed he retaliated against her when it ended. Pao lost her case.

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But there are also success stories: in 1996, 23 women filed suit against Smith Barney in the infamous "boom boom room" case (male employees' birthdays were celebrated with strippers in what could only be a totally icky basement room); the brokerage firm eventually paid out $150 million.

Trust Yourself, and Lobby for Changes

It's difficult to know if a catalog of subtle incidents-of sexist jokes, of encountering a guy in his bathrobe-is enough to bring a case, but Bachman encourages women to trust their instincts: "As we've seen from the cascade of women finally speaking up about the sexual harassment they've had to endure, if you are consistently feeling uncomfortable about how your boss or your coworkers are treating you, then you are probably in a toxic work environment. And even if it does not rise to the level of an unlawful hostile work environment, an employee shouldn't have to just grin and bear this kind of behavior. Perhaps there is a trusted supervisor that the employee can discuss their concerns with and see if that leads to any constructive changes."

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And if not, obviously a lawyer can help you determine your next steps. Both Bachman and Peratis note that there's strength in numbers: The more women you can convince to come forward at once, the better your case. No matter what, though, the emotional, financial and professional toll of filing suit, or even of going to HR to file a complaint, can be grueling.

How to See the Big Picture

Peratis notes that if one tries to analyze this hostile environment incident by incident, claims are easy to pick apart-which is exactly what the defense will do: They'll say "this particular thing wasn't so terrible; that particular thing can be explained, this particular thing didn't really happen that way. If you take it one little bit at a time, nothing is going to seem illegal. But if you look at the whole picture, the environment, then you see it was really pervaded by a feeling of denigration or being demeaning. It was making the condition of work much harder for the woman who bore it than it is for everybody else." That's what you have to ask yourself, if you're unsure-are my working conditions harder than everyone else's due to this hostility?

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Were Rose McGowan's working conditions worse than Brad Pitt's? Certainly. But when it's more subtle, it's hard to know-are you having a harder time presenting your ideas at meetings, or socializing with your colleagues at conferences, than the guy at the next desk who's not enduring lengthy shoulder squeezes or jokes about blondes? That can be tough to parse, even to yourself, and it can be tempting to simply say "not a good fit," move on, and hope to forget about it. But if the current moment has taught us anything, it's that we don't actually forget-not in a few months or a year or a lifetime. And we should let that knowledge guide us in the present from now on. As Bachman says, "The more voices that are heard, the more likely things will actually improve."

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