The Supreme Court opinion in Vinson’s case opened up the courthouse for survivors. But its most important effect was to tell institutions what they had to do to avoid a lawsuit: address sexual harassment allegations internally, just as they dealt with other forms of discrimination. If they did not, they could face a suit like Vinson’s. In response, human resources departments in companies and Title IX offices in schools have built structured grievance processes. These are not part of the court system, but they are required by law.
Grievance procedures can take many different forms, but many readers who have worked at a job or attended school will have seen some version of how an institution can look into misconduct (sexual or not). Often, designated personnel conduct a formal investigation. This usually involves giving each party the opportunity to tell their side of the story. Interviews by HR or an outside investigator, as well as written statements, frequently follow. Generally, witnesses identified by the two parties will be questioned, too, and any available evidence—text messages or medical records, for example—will be reviewed. If the allegation is determined to be true, internal decision-makers will develop a plan, which might include both support for the victim and consequences for the perpetrator. Depending on the underlying conduct, that sanction may be fairly minor, like a note in a record or a transfer out of the survivor’s department. For more severe misconduct, the institution might decide that suspension or termination is the appropriate remedy, especially if that’s the only way to keep the community safe and for the victim to stay in school or on the job. Many employers and schools also offer informal processes that give victims an opportunity to ask for help without triggering an investigation or any repercussions for the assailant. For example, a victim might be allowed to change her shift so she doesn’t have to see her harassing boss, or a student might be provided free mental health services. The through line: these remedies, varied and flexible, seek to ameliorate the threat harassment poses to equality.
Addressing serious, even criminal misconduct like sexual assault might seem like a heavy responsibility for a workplace or school. But these institutions didn’t need to start from scratch when Vinson won her case. Even where civil rights law doesn’t require it, institutions have always had to make decisions about allegations of misconduct within their ranks. If an employee punched a coworker or a customer in the face, all of us would be surprised if the bosses shrugged it off and just told the victim to report the incident to the police. That punch may be illegal, but it also threatens the healthy functioning of the company. The victim may want assurance that if he shows up tomorrow, he won’t be punched again. Without that guarantee, talented employees might quit; customers might stay far away. All that unchecked punching would ultimately hurt the bottom line. From the company’s perspective, the problem isn’t just that a law was broken: it’s that the conduct is bad for the group.
In other words, even setting aside any legal requirements, employers and educators have their own interest in ensuring a safe community where everyone can do what they came there to do, like work or study. As a result, they regularly investigate allegations of all kinds to determine what happened and who was responsible, and then make decisions about what should be done as a result, including whether someone should be sanctioned. “They have disciplinary codes, and they enforce them in all areas, and they need to keep doing that,” Naomi Shatz, a lawyer who represents employees and students on both sides of sexual harassment allegations, told me. “The same way employers have handbooks and rules, and say, ‘Okay, this is a smoke-free work environment,’ they can decide what happens in their workplace and then enforce that.”
Speaking of smoke: during my last year of high school, a bunch of kids set a trash can on fire in our “senior lounge,” a section of the cafeteria with beat-up couches and a PlayStation. The school investigated who was responsible by talking to witnesses and looking at camera footage, and then suspended the students who were involved, independent of any criminal arson prosecution. Regardless of whether that was the appropriate punishment—it seems a bit harsh to me in retrospect—of course administrators had to do something: you can’t really have a school where kids freely go around setting things on fire. The same goes for less serious forms of misconduct, like sharing answers to a Spanish quiz, and also more serious transgressions, like physical violence. The school’s interest in intervening would have been even higher if the students’ pyromania had threatened their classmates’ civil right to learn free from discrimination—if, say, they had set crosses, rather than trash cans, aflame.
At most schools and workplaces, internal rules may reflect some definitions drawn from the law. They might say, for example, that sexual harassment is “unwanted conduct of a sexual nature” that is “severe or pervasive.” But the policies will also usually encompass some behaviors that, on their own, would be unlikely to give rise to a successful criminal action or civil suit. The policies are there to define what is acceptable within the community, and some forms of misconduct—such as plagiarism or low-level harassment—may be legal but still not internally acceptable.
Where internal rules and external laws do overlap, a sexual harassment victim doesn’t have to choose between legal options and reporting to the institution. He could, for instance, simultaneously report to the police seeking criminal charges, initiate a civil suit against his assailant for money damages, and file a complaint with HR to make sure he’ll be safe at work. These systems all operate independently and serve different goals. And because each option provides different remedies, a victim can decide to cobble together something that feels like justice to him, or at least like a decent way to get back on his feet.
THERE ARE PLENTY of reasons why a sexual harassment victim might want to use an institution’s internal procedures in addition to, or instead of, external legal options. For one, in many cases—I’d wager most—they are the only option available. A police report will probably never result in charges, and many victims cannot afford to hire a lawyer for a civil suit against the assailant. What’s more, criminal prosecutions and tort suits can take years. By the time a legal action is resolved, a worker may have left her job because of her abusive boss, and a student might have graduated—that is, if she managed not to drop out. In contrast, schools and workplaces have to respond in some way to every report, and they can do so quickly. Of course, these institutions don’t always live up to their responsibilities, and I’ll talk more later about their failures. But plenty do get it right, at least in part.
Perhaps most importantly, institutions can provide community-specific protections and remedies a court cannot. Usually, the only remedy a criminal trial can offer is incarceration, and victory in a tort suit against a harasser almost always means just money damages. An institution, by contrast, can’t lock up an abuser or order him to pay his victim. But it can do so much else. A school can give a student an extension on the paper due the week after she was raped. It can make sure to never schedule her and her attacker in the same class or lunch period. An HR office can assign a worker to a new supervisor so he doesn’t have to depend on his harasser for a promotion. Prosecution and lawsuits simply cannot provide these kinds of swift, flexible, and light-touch solutions.
Even when significant sanctions are needed to keep the victim and community safe, many survivors prefer the ones available to an institution rather than (or in addition to) punishment by a court. Many victims are uninterested in criminal prosecution in the first place, as I’ll discuss more in the next chapter. A worker might want the boss who raped her to be fired but not sent to prison. Only her employer can help her achieve that.
I spoke to a number of survivors for whom relatively small accommodations made a world of difference. Tara Tyrrell, a college classmate of mine, told me she was “definitely” glad she was able to report a classmate who sexually assaulted her to a school authority. When her assailant refused to leave her dorm room, she and her roommate initially contacted campus police. But she feared a lengthy criminal investigation and worried that she would be an unsympathetic victim: she had been drinking the night of the assault, and had flirted with the guy before their encounter turned violent. So in the wake of her assault, she turned to a man she had shared dinners with in the dining hall and already thought of as an ally: the dean of the dorm where she and her assailant lived. What Tara most appreciated was that the dean laid out her options—pursuing criminal charges, formally reporting to the university’s disciplinary system, having the dean confront the assailant more informally, or some combination—and let her choose the path she wanted to take. At her request, the dean spoke to the classmate, who quickly confessed and expressed remorse. Because he was willing to accept responsibility, Tara was satisfied with the dean requiring the man to attend counseling, and did not pursue a disciplinary investigation. Looking back, Tara told me, she thinks she may have chosen a nonpunitive response out of misplaced concern for the man who had hurt her. But she’s still glad the choice was hers, and that she had been able to pursue it within a community she trusted.
The benefits of a familiar system separate from the police also meant a lot to another woman, whom I’ll call Selena. In her junior year of college, she was assaulted by an ex-boyfriend after she broke up with him. The man graduated that semester, but came back to campus often and frequently contacted her. Seeing him gave her panic attacks, and she started to avoid her dorm’s dining hall out of fear of encountering him. So she spoke to her dean, who connected her to the college’s sexual harassment response office. Selena told me repeatedly that she felt grateful that school administrators were generous with their time and explained her options; she trusted them. She chose to pursue a remedy through the school because she could “retain ownership” over the process. “Having an institution that wasn’t the law was actually really meaningful,” she told me, “both because the process felt perhaps more connected to me personally and also because I have trust in the system in the way I might not if there are just a bunch of cops taking my underwear to test.” The school eventually worked out an arrangement in which her ex would be able to visit the university but not her dorm. “It took me years of therapy to come to terms with my assault and not have a panic attack at the mere mention of the guy’s name,” she told me. “If there hadn’t been an institutional capacity to help me feel safe on campus again, I’m not sure I would have completed my degree. I can’t help but feel grateful that institutions can and do respond to assault cases like mine.”
A woman named Megan shared with me her account of reporting sexual harassment in the male-dominated audiovisual field in which she worked. She had seen her boss harass other employees before, and had tried to tolerate it. When he loudly remarked on the color of her bra and asked Megan if she was wearing “matching panties,” she felt shaken. “I was humiliated,” she remembers. “I started spending twenty extra minutes each morning getting dressed, ensuring there was no way to even catch a glimpse of my undergarments. I began having anxiety attacks driving to the office and couldn’t wait to get out of there every day.” The boss kept up his harassment, and a friend convinced Megan to report the incidents to the company’s vice president, whom she knew and liked. She worried her boss would get off easy, and that she would have to continue working with a man who not only harassed her but knew she had reported him. But after interviews with Megan, coworker witnesses, and the boss, the company fired him. “While going to work didn’t get immediately easier,” she says, “it got better every day.”
A man who worked in a restaurant kitchen told me about his experience of being harassed by a chef there, much higher up in the workplace hierarchy. He had no idea what to do. “Someone else reported it,” he told me, “saying it made them very uncomfortable, and I’m glad they spoke up. That chef was disciplined and apologized to me, and nothing like that ever happened again. If not for that random unknown coworker, who knows what would’ve happened.” Another food service worker told me that after she reported that a colleague had rubbed himself against her inappropriately, she spoke with the restaurant’s owner. She requested a shift change, which the owner immediately granted. Eventually, the harasser was fired, she told me. “I was really impressed that they took me so seriously,” she remembers.
I also heard likely rarer, but equally moving stories: people accused of sexual harassment who told me an institutional response had changed their behavior for the better. One, a nurse named Mike, told me, “Having an individual go to HR with a detailed complaint was the best thing that happened to me. I cooperated, answered truthfully, and was fired. I took time, worked on things, and I’m a fundamentally healthier person than I was before, and I would not act in the ways I have in the past.” Another man who was accused of harassment as a young student found the process deeply painful, but also told me it spurred him to rethink how he treated others.
FORMAL INSTITUTIONS WITH legal responsibilities, like schools and workplaces, are not the only ones who respond to sexual harassment. Some religious congregations, for example, have their own policies for handling complaints. And more casual groups have been making efforts to establish such policies as well. Gotham Volleyball, a recreational LGBTQ volleyball league in New York, includes an anti-harassment policy in its league bylaws. I have found similar efforts by dance clubs, labor unions, commercial gyms, and amateur biking clubs. In my experience, these groups may lack the technical skill of an HR specialist, but are more likely to respond out of genuine care, because the community is motived by a commitment greater than mere legal obligation.
Some of the most interesting efforts come from activist and political groups. In 2017, for example, the Democratic Socialists of America passed an anti-harassment policy in order “to ensure,” as the resolution explained, “that everyone is able to organize without fear of harassment, abuse, or harm.” The document explained what kind of behavior might constitute harassment: for example, “unwelcome attention,” “slurs or jokes,” and “inappropriate physical contact or proximity” might cross the line if “such conduct has the purpose or effect of creating a hostile environment interfering with the individual’s capacity to organize with DSA.” And it laid out a process by which complaints would be received. Each DSA chapter with over one hundred members was required to appoint “harassment grievance officers” to accept complaints and investigate them if the accused denies the allegations. The officers would also produce regular reports outlining, in general terms, how many complaints were received and how many resulted in disciplinary action. Remedies for wrongdoing might include expulsion from DSA, but the policy suggested first considering other alternatives, such as removal from leadership positions and the creation of a plan for the wrongdoer to stop his damaging behavior. As I’ll discuss later, the organization’s implementation of this policy has come under criticism as lackluster. But, at least on paper, the process is thoughtful, fair, and well suited for DSA’s decentralized model—an important first step.
Reading the DSA policy, I recognized a name among the drafters: Allison Hrabar, whose work as a college Title IX activist I had followed years before. When I reached out to her, Hrabar readily acknowledged that her experience working to reform her school’s internal procedures informed the way she approached helping to create DSA’s policy. But she also stressed to me that while the DSA drafters drew inspiration from harassment law, they deliberately sought to go beyond it. They began by copying language from the Equal Employment Opportunity Commission (EEOC) reflecting what kinds of harassment are prohibited by federal civil rights law—for example, harassment based on race, sex, and disability. “And then we said, what is missing?” Hrabar told me. They added prohibitions on harassment based on class, profession, and physical appearance, to acknowledge harms that civil rights laws do not (yet) recognize.
Hrabar told me that the need for a DSA harassment policy was obvious to her from the time she joined the organization. “When you are sexually assaulted or when you are harassed … and you say what are my options, going to the police is rarely the best option on the list, it’s usually one of the poorer options. So a lot of people go to their institution,” Hrabar noted, drawing analogies to her experience as a student advocate. “And they say ‘I don’t really want to report my professor, or my classmate, or my boyfriend to the police. I want to deal with it through this common institution we have.…’ And I think DSA is very similar. DSA is a large political organization with 50,000 people, but we’re also a social organization. We’re people who see each other a lot; we’re people who drink together; we’re people who live together. So I think an institutional response to that, as opposed to having to go to the police on your neighbor or friend or comrade, was a natural choice.”
In part, the commitment to expanding support options for survivors reflected the DSA’s own ideology. “The entire idea of DSA is that we want a socialist nation because it will make people free from harm,” Hrabar explained. “If you’re being discriminated against, that’s obviously the opposite of being liberated.” But in addition to the lofty political goals, the policy was also deeply practical. The drafters wanted to ensure, Hrabar said, that “the people who are doing the work” don’t find themselves having to leave the group “because they’re being discriminated [against], assaulted, harassed.” DSA has not yet achieved that goal. But it has rightly taken on the responsibility to do so.
Hrabar and DSA are part of a long tradition of political communities looking to put their values into practice when it comes to responding to sexual harms outside of the criminal legal system. This work had been pioneered by radical grassroots groups led by women of color, many of which are committed simultaneously to stopping interpersonal violence, especially within intimate relationships, and to ending abusive policing and incarceration.
A particularly encouraging case study comes from women of color organizers at Communities Against Rape and Abuse (CARA), a project based in Seattle that helped local groups respond to internal reports of sexual harm. A young woman named Marisol turned to CARA for support after she was sexually assaulted by Juan, a fellow member of Unido—a Chicano rights activist group—while the two were at a conference. Soon after, Marisol learned that Juan had abused other women within Unido’s ranks. With CARA’s guidance, Marisol organized a plan alongside her fellow Unido survivors “to confront Unido’s largely male leadership about the problem of sexual violence in general and Juan’s behavior specifically.”
Because of the negative effects the criminal system had in their community, the activists did not want to pursue criminal prosecution. The young women instead demanded “that Juan step down from leadership positions in Unido, that he pursue counseling and that his friends support him to go to appropriate counseling, and that Unido pursue intensive educational work on sexual violence.” Unido’s leadership agreed on all counts and made good on those commitments. The leadership also decided to prioritize ending sexual assault as part of Unido’s national agenda.
I want to be very, very clear: the community-based, transformative, explicitly anti-carceral efforts by radical communities of color are in no way interchangeable with the kinds of practices I mainly focus on in this book, such as workplace HR proceedings, simply because they all occur outside the courts. To overdraw the parallel would be an insult to a rich radical tradition, and an obvious false equivalence. CARA was motivated by deep political commitments; HR departments are invested in avoiding liability, and generally focus on investigating individual allegations rather than instigating broader community change. Yet to ignore the influence of CARA and similar groups on the work of DSA and others today would be to erase vital history. And institutions would do well to draw inspiration from the way that radical groups, past and present alike, seek transformation and broad accountability.
I GOT TO see an informal institutional response in practice when my brother Jason’s science fiction society dealt with an abuse accusation by one member against another. The Harvard-Radcliffe Science Fiction Association was a big part of Jason’s college years. He met many of his lifelong friends there; he met his now wife; and he found a home of like-minded gamers, who could together celebrate passions that hadn’t been shared by others back home. Many members were queer or trans and used the group’s role-playing games as opportunities to experiment with different genders and sexualities. The community was important enough that Jason and other HRSFA members continued to regularly meet up after college graduation.
A few years ago, Jason was serving as the president of HRSFA’s alumni association, HRSFANS. During his tenure, a woman whom I will call Monica reported to him that a fellow member had sexually abused her. Monica considers herself “weird” but does not identify as a “geek,” as some other members do. And parts of geek culture turned her off. “There’s this idea that you have to invite everyone and everyone’s quirks must be tolerated,” she told me. “There’s a positive version of this. You have a bunch of people who don’t quite fit anywhere, and here’s a place where they can go and people are happy for them to be kind of weird. But the flip side to that is the things that count in this umbrella of weird properties … including men being kind of creepy at women.” Men making women uncomfortable was often dismissed as just a blameless lack of social skills. “There’s the agreement they seem to make with each other: I won’t tell you to change if you don’t tell me to change,” Monica explained. “But some kinds of change are good.”
Still, Monica stayed in the HRSFANS orbit. She liked many of the members. Their events, including the big annual conference and frequent house parties, were a good way to see some of her closest friends.
Monica later told me that Simon had always creeped her out. (I have changed his name to protect the privacy of all involved.) He was never good with boundaries. Once, she recalled, when she wore a backless dress to a party, Simon approached her from behind and ran his hand up her bare back. Other members, however, including her then boyfriend, encouraged her to take Simon’s behavior in stride. Sure, Simon was odd, they said, but he was harmless. Plus, he was married, and although many HRSFANS members were polyamorous, he was a vocal proponent of monogamy.
Or, at least, he was a public proponent of monogamy. Simon decided he wanted a relationship with Monica. They lived in different states and rarely saw each other, but, she recounted, Simon started to message her constantly, contacting her at all hours. She wasn’t interested, but that did little to discourage him. In retrospect, Monica realized she had little practice shutting down men. She had been taught since childhood that it would be rude to do so.
In the lead-up to HRSFA’s annual convention, Simon proposed they share a hotel room. The prospect made Monica nervous, but when he promised he wouldn’t try to have sex with her, she agreed. Once they were there, though, Simon propositioned her; she relented, unenthusiastically. Then, in the middle of the night, she woke up to Simon masturbating over her face. She had not consented to this. Monica couldn’t tell if Simon had realized she had woken up—and she was afraid that if he did, the incident might escalate. So she “played dead,” as she later put it.
Monica never considered reporting the masturbation to the police or filing a civil suit. She knew that few would see her as a “perfect victim”: she was sexually active, had struggled with her mental health, and had agreed to share a room with Simon and then have sex with him. But, concerned for the HRSFANS community, she felt she had to do something. So she wrote up her experience with Simon and sent it out to the HRSFANS board and membership.
When Monica’s message went out, the board had recently started to draft an anti-harassment policy and grievance procedure. Suddenly, their task became much more urgent. Putting their brand-new process to the test, they solicited a statement from Simon, and gave both him and Monica a chance to object in writing to any points contained in the other’s account. Then the board invited the larger community (which was already clued in to the allegations) to provide any other relevant information. In response, it received reports of other women’s experiences with Simon, which pointed to a pattern of bad behavior. As with Monica’s report, Simon was given the opportunity to deny or rebut these accounts. Ultimately, the board decided Simon posed a threat to its membership and banned him from HRSFANS events for ten years.
Monica was happy with the result. No longer would the community vouch for a misbehaving man, and no longer would he be able to hurt others in their ranks. “I would do it again,” she told me about going through the process, although she hopes she never has to. Despite Simon’s absence, she does not plan to attend further HRSFANS events, either. But she hopes she left the community better than she found it.