You shrug off the first time a co-worker says you ought to wear more makeup, wear more feminine clothing, smile more.
But the comments keep coming, even after telling your colleague the remarks are out of line. You’ve gone from rolling your eyes to being irritated.
This is sexual harassment–which is severe or pervasive behavior that the recipient finds uncomfortable or offensive. In some cases, sexual harassment can be a criminal act.
Rather than focus on the definition, think about how the comments make you feel, said Michelle Wescott, chief development officer of Gillespie Associates, which conducts training in preventing sexual harassment.
“It’s getting to you,” she said. “That’s a feeling you shouldn’t feel at work. You shouldn’t have that niggling doubt in the back of your brain when you’re putting on your comfortable clothes of what (someone is) going to say.”
You should notify human resources or anyone who is a manager and therefore required to take a report. In the past year, New York has started a program that clearly states the responsibilities of employers to prevent sexual harassment and the rights of workers when it persists.
Combating Sexual Harassment in the Workplace requires every employer–regardless of size–to institute a sexual harassment prevention policy. The state provides a detailed model, but it allows employers to set up their own policy as long as it meets minimum standards. The website for Combating Sexual Harassment in the Workplace has information for employers and workers, including resources for workers who think they’ve been subjected to harassment.
The program began last year. Employers have until Oct. 9 to train all employees, whether the business uses the state’s model or its own.
“It’s shocking how many people I talk to every day who do not know this is required,” said Westcott, whose company provides training and employee development. Small companies in particular may be unaware if their leadership is not part of human resource or other organizations that disseminate news about workplace practices.
The state is encouraging employers to keep signed acknowledgements by employees that they have read the policy and the business should keep copies of training records, but it’s not required. Wescott said that to her knowledge, the state was not checking to see whether companies instituted sexual harassment prevention policies.
However, companies that fail to comply will find they lack a strong defense if an employee brings a sexual harassment suit.
The law will force companies to look at what kind of behavior their culture promotes, said Meaghan de Chateauvieux, president and chief executive officer of Willow Domestic Violence Center.
She said workplaces should look at unexplained absences and sudden changes in performance as possible clues that someone is being harassed and needs support, rather than that the person has to be disciplined for shortcomings.
“How much does not paying attention to that hurt your bottom line,” she said.
De Chateauvieux said sexual harassment and domestic violence are about power and control over someone else. “The most important thing from our perspective is just to ask the employers to believe the victims when they come forward and make sure they leave the door open for people to feel comfortable coming forward and have that culture where the behavior won’t be tolerated.”
Sexual harassment has been illegal since the Civil Rights Act of 1964, but as the #MeToo movement has shown, the behavior has not been legislated out of existence. Sexual harassment takes a toll on women’s physical and emotional health. It also affects their lifetime earning potential by limiting access to training and advancement, forcing job changes and unemployment, according to the Institute for Women’s Policy Research.
Kate McClung, a labor law attorney and partner at Bond Schoeneck & King, said she has seen a moderate uptick in sexual harassment cases.
“I suspect there will be a more sizeable increase over the next year or two,” she said. “Part of the new law is that all employers have to provide training and a policy, and in the training and policy they have to tell employees where they can go to file a claim.”
McClung said the stereotypical behavior is that of a boss demanding sex in exchange for job security. She said in her experience defending businesses accused of sexual harassment, a more common claim is that of a hostile work environment that leads to people feeling uncomfortable.
But that could depend on the situation.
She gave a hypothetical example. “If you have a friend at work who you joke around with, even though other people may feel that’s off-color if they heard that conversation, but it’s just you and one other person, both of you think it’s funny, nobody overhears, it’s welcome to both of you, that’s not sexual harassment in that context,” McClung said. “Same joke told in a different context may be sexual harassment. You have to be aware of your audience.”
Be aware that cubicles have ears.
A conversation at your desk that carries to your neighbor’s could create a hostile environment. McClung said the #MeToo movement has left people with a broader view than what the law defines as sexual harassment. “I think people hear one joke and feel they’ve been unlawfully sexually harassed and that’s not actually true. The law has a higher standard.”
McClung said cases that don’t show a pattern or severe conduct tend to get dismissed in civil court.
Elizabeth Buckley, chief of the Sex Crimes Bureau of the Monroe County Office of the District Attorney, said if one person initiates sexual contact without the other person’s consent, it can lead to criminal charges.
Having a colleague utter a crude remark or unwelcomely drape his or her arm over your shoulder every time they talk to you is sexual harassment. Buckley said the behavior would be criminal if the person touched your breast without you wanting it.
She said the penal code is specific about what constitutes misdemeanor sexual abuse or forcible touching. The unwelcome contact has to be with sexual or intimate parts of the person initiating the action or the one receiving it.
She said she would like to see the wording of the penal code changed from forcible touching, which involves grabbing, pinching or rubbing, to unwanted touching. The distinction may not have a difference in the everyday world, but it does in court. “There shouldn’t be a time when someone is able to touch you and you don’t want that,” she said.
Patti Singer is a freelance writer in Rochester. She can be reached at firstname.lastname@example.org or (585) 355-5484.
Your recourse to sexual harassment
NY law requires employers to have an anti-sexual harassment policy that meets certain requirements, including instructing workers how to proceed if they believe they have been sexually harassed.
The new state regulation doesn’t require a person who believes he or she has been sexually harassed to tell the perpetrator to stop. “I think the best way to encountering sexual harassment in the workplace is to tell somebody, ‘Hey, I don’t think that’s funny’ or ‘Please stop talking that way,’” said Kate McClung, partner at Bond Schoeneck & King. “I think most people don’t want to offend their co-workers.”
If you choose not to speak to the perpetrator, or that doesn’t work, local experts advise these steps:
- Speak to your human resource department or anyone with managerial responsibility, who is required to take a complaint.
- Check your company’s required sexual harassment prevention policy for a complaint form and information about how to seek help outside the company.
- Contact the U.S. Equal Employment Opportunity Commission https://www1.eeoc.gov/field/buffalo/index.cfm or (800) 669-4000.
- Contact the state Department of Labor. labor.ny.gov/home/
- Contact Willow Domestic Violence Center at (585) 222-7233 (SAFE).