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Every time a man and a woman are at the water cooler, Anita Hill’s right there between them.
—Andrea Sankar, anthropologist1
I can recall several occasions when, as an equity trader at Morgan Stanley, I walked in on a conversation among male colleagues, and the conversation stopped dead. Silence ensued as my colleagues nervously tried to determine how much I had already heard. They weren’t talking about me; invariably they were sharing gossip or jokes they deemed inappropriate for female company. Often I would try to pry these lewd jokes and stories from my colleagues. The male colleagues typically declined, asserting that if they shared their stories, they would be engaging in sexual harassment. After swearing over and over that I would not be offended, sometimes my colleagues would concede and share a watered-down version of their conversation. More often than not, they would assure me that I didn’t want to hear it, or that they would share it later, and then they would disperse. One thing was clear—when I entered the room, the party was over.
My colleagues were correct that I was offended, but not by the content of their jokes. I was offended that I wasn’t included as one of the boys. I was offended that they didn’t feel comfortable enough to share their jokes with me. I was offended they thought I was going to bring sexual harassment charges against them. Heightened awareness of sexual harassment issues in the workplace hasn’t eliminated the offensive jokes and stories in the office; instead, it has merely segregated by gender the sharing of such stories. The resulting problem for women and their careers isn’t that these jokes have some inherent career value, but the sharing of these jokes and stories helps forge bonds that last well beyond the joking sessions. Those excluded from the jokes are excluded from the bonding as well.
Joan, a business consultant I interviewed, described her own isolation from the men at the office. She was often excluded from conversations and struggled to put male colleagues at ease:
I feel like sometimes, [men] don’t feel like they can relax when women are around as much. They feel like they have to be careful what they say, and they have to be careful what jokes they tell in front of the women in the office. Whereas when they’re just all men they can joke around and talk about things they wouldn’t want to talk about when women were around so it’s harder to break that barrier. . . . I try to make the men feel like I understand them, that I’m not offended by all their stupid jokes and things like that. I guess after they understand that I’m not like every woman that’s going to sue them for sexual harassment, then it’s fine.2
Heightened awareness of sexual harassment issues in the workplace has left employees wary of interactions with the opposite sex, because employees fear that their friendliness might be misinterpreted by their coworkers. Men tend to be overly cautious in interactions with women at work, and female employees must put their male coworkers at ease and assure them that they’re not in danger of a sexual harassment suit.
Cross-sex interactions are so fraught with complications that one recent study found a shocking 64 percent of senior men are reluctant to have a one-on-one meeting with a junior woman.3 Two decades ago, a similar study found that over half of senior male executives were sensitive about making contact and reaching out to women in their organization.4 Little has changed. Unfortunately, these are the same senior men that would make valuable mentors to the junior women. If these women have difficulty booking a one-on-one meeting with a senior exec, it’s unlikely that valuable mentor relationships will blossom.
I’m certainly not suggesting heightened awareness of sexual harassment is all bad. Organizational sexual harassment policies not only warn potential offenders but also provide procedures for the harassed to come forward with their complaints without fear of retribution. Large numbers of employees are impacted by sexual harassment at work, and in 2013, 7,256 cases of sexual harassment were filed with the Equal Employment Opportunity Commission (EEOC), and many more cases are handled internally by human resource departments. A large majority of these cases are brought by women, but a growing number (17.6 percent in 2013) are filed by men.5 Clearly, awareness of sexual harassment policies is critical so that all employees can feel safe and comfortable at work, and those who are sexually harassed should be encouraged to speak out.
However, it’s equally critical that organizations become aware of an unintended consequence of this heightened awareness of sexual harassment. The increased attention focused on issues of sexual harassment has created a work environment where employees fear accusations from the opposite sex. As a result, workers behave in an overly cautious manner so their behavior will not be misinterpreted as sexual harassment. While cautiousness is admirable, overcautiousness inadvertently contributes to the sex partition.
What Is Sexual Harassment?
The male traders who refused to share their jokes with me may have been surprised to learn that occasional joking does not constitute sexual harassment. The senior execs who were reluctant to meet with a junior woman would be heartened to discover it’s actually quite difficult to inadvertently sexually harass a colleague. Indeed, much of the fear that surrounds sexual harassment allegations results from a lack of understanding regarding what legally constitutes sexual harassment. For employees who are unclear about the definition of harassment, reducing contact with opposite-sex employees is a surefire way to decrease the likelihood of sexual harassment charges. Certainly, the less interaction you have with opposite-sex employees, the less likely you are to inadvertently sexually harass.
So, what exactly is sexual harassment? Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 (Title VII prohibits discrimination by employers on the basis of race, color, religion, sex, or national origin). Therefore, sexual harassment has a relatively short history in the United States (the first sexual harassment cases were not brought until the 1970s). The EEOC defines sexual harassment in its 1984 Policy Statement on Sexual Harassment as:
Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when:
Thus, instances of sexual harassment can be broken down into two categories, often labeled quid pro quo and hostile environment. Quid pro quo (literally “this for that”) harassment occurs when the unwelcome conduct is a condition of an individual’s employment or becomes the basis of an employment decision. Although sometimes difficult to prove with no witnesses, there is little disagreement or ambiguity over whether these behaviors are harassing in nature. A supervisor who bargains, “Have sex with me and you’ve got the job, or the promotion, or the raise,” clearly engaged in quid pro quo harassment. Similarly, if the supervisor threatens, “If you don’t have sex with me, I’ll fire you,” there is little ambiguity as to whether this behavior constitutes sexual harassment.
The second type of harassment, hostile environment harassment, is more ambiguous. The definition—conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment—is far less clear-cut. The problem is that behavior that seems hostile or intimidating to one person may go unnoticed by another. It’s sometimes easier to avoid opposite-sex interactions rather than trying to discover what types of behaviors are offensive to each employee.
Sometimes Sexual Harassment Is Clear-Cut—Most Times It Isn’t
Not all cases of hostile environment sexual harassment involve ambiguity. Take the case of Ashley Alford. In 2011 a jury awarded Ashley Alford $95 million for sexual harassment she endured while employed at a national furniture chain. No one would question that the behavior Alford was subjected to constituted sexual harassment. According to Alford’s allegations, it started when her supervisor, Richard Moore, began pinching her.6 The pinching quickly escalated to groping of her chest and buttocks. Moore purchased clothes and chocolates for Alford, and he then demanded that she provide him “sucky-sucky” in exchange for the gifts. Alford called the organization’s sexual harassment hotline to report the harassing behavior, but no investigation took place, and Alford was never privately interviewed about her experiences. Moore’s boss called both Moore and Alford together to discuss the matter, then allegedly told Moore that he had to “watch his back” because sexual harassment allegations had surfaced. Moore was allowed to continue supervising Alford.
From there it only got worse for Alford. One day while Alford was sitting on the stock room floor, Moore approached her from behind, unzipped his pants, and hit Moore on the top of her head with his penis. On another occasion, Moore restrained Alford against her will, lifted her shirt, pulled out his penis, and while still holding Alford, masturbated and ejaculated on her. In this case the sexual harassment escalated to sexual battery. Thankfully, most cases of harassment are not quite so severe. Allegations relating to a hostile environment are often far less clear-cut.
On Wall Street I was told that several of my own male coworkers would gather at the start of each workday to rate their female coworkers’ attractiveness on a one-to-ten scale. This represented one more male bonding routine from which all female employees were naturally excluded. Each day they would try to reach consensus on which female employee was the most attractive that day. One would argue that Marianne’s cleavage gave her an advantage, while another would suggest that a particularly tight outfit on Susan should put her over the top. Although it was clearly unprofessional behavior, it certainly didn’t interfere with my work performance. Compared to what Ashley Alford endured, the behavior seems almost innocuous. Would this behavior constitute a hostile working environment according to the definition? Some would probably say it would while others would say not. So how do the courts decide what constitutes a hostile environment?
In 1993 the Supreme Court suggested an approach to more ambiguous sexual harassment cases based on the case, Harris v. Forklift Systems, Inc. Teresa Harris, the plaintiff in this case, worked as a rental manager for Forklift Systems and complained of comments and behaviors directed at her by the president of Forklift, Charles Hardy.7 According to Harris’s allegations, in front of others, Hardy suggested that the two of them “go to the Holiday Inn to negotiate [Harris’s] raise.” Again, in front of others, on several occasions Hardy told Harris, “You’re a woman, what do you know” and, at least once, called Harris a “dumb ass woman.” He made sexual innuendos about Harris’s and other women’s clothing, and he occasionally asked Harris and other female employees to get coins from his front pants pocket. He threw objects on the ground in front of Harris and other women and asked them to pick up the objects. Harris complained to Hardy about his conduct, and he apologized, told her he was just joking, and that he would stop. However, a month later the harassment began again. While Harris was arranging a deal with a customer, Hardy asked her, in front of other employees, “What did you do, promise the guy . . . some [sex] Saturday night?” Harris quit her job and sued Forklift, claiming that Hardy had created an abusive work environment based on her gender.
Perhaps shockingly, the lower courts ruled against Harris, stating that the abuse was not so severe as to affect Harris’s psychological well-being. The case went to the United States Supreme Court which ruled in Harris’s favor, with Justice Sandra Day O’Connor stating that as long as the environment could “reasonably be perceived, and is perceived, as hostile or abusive there is no need for it also to be psychologically injurious.”8 O’Connor stipulated that the harassing conduct didn’t need to go as far as to cause a “nervous breakdown” but needed to be serious enough to detract from the job performance of the victim. The court suggested that in determining whether a particular behavior constitutes a hostile environment, one should consider the frequency, severity, threatening, and humiliating qualities of the behavior. Was it a “mere offensive utterance,” or does it impact the victim’s job performance? Furthermore, instead of assessing how the behavior impacted the victim, the emphasis should be on whether a reasonable person would find the conduct hostile. If a reasonable person would not find the behavior offensive, then it’s not harassment.
This “reasonable person” standard continues to be applied in courts to assess the severity of hostile environment harassment. But is a reasonable person more like a reasonable man or a reasonable woman? Do reasonable men and reasonable women view harassing behavior in the same way? In the case of Harris v. Forklift, Hardy thought his behavior was “just joking,” yet most women would probably side with Harris that the behavior was abusive.9 Many scholars have argued that the standard should consist of whether a reasonable person who is the same sex as the victim would perceive the behavior as harassment. Instead of a “reasonable person,” if the victim is female, then the standard would be that of a “reasonable woman,” and if the victim is male, then the standard would be that of a “reasonable man.”
The Supreme Court stopped short of adopting a gender-specific standard, and the “reasonable person” guidelines remain. Yet there is research evidence that women are more likely than men to label certain behaviors as harassing.10 Men and women don’t disagree about quid pro quo harassment. These situations are easily identified by both genders as harassment. However, when it comes to labeling certain behaviors hostile environment, gender differences start to emerge.
Does putting pressure on a colleague to go out on a date constitute harassment? Men and women tend to disagree. Women are more likely to label this as harassing, and men are less likely to see it that way. What about hugging or kissing a coworker? Once again, women are more likely than men to label this as harassing. Harassment researchers suggest that these differences may result from different perceptions of the same behavior. Men may view touching or date requests as complimentary toward the women, but women don’t necessarily see it that way.11
It’s not surprising that women are more likely than men to perceive particular behaviors as harassing. Since women are more likely than men to be on the receiving end of harassment, it makes sense that they’re more sensitive to harassing behaviors. However, it’s men’s uncertainty regarding what behaviors women may label as harassing that encourages men to hold back in their exchanges with women. Since men may see things differently than women, to be on the safe side, some men avoid any interaction that could even remotely be perceived as harassing. They may avoid unnecessary interactions with women altogether.
However, these concerned men should be relieved to learn that the EEOC makes it clear that “the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”12 In other words, most sensible individuals need not worry about inadvertently sexual harassing a colleague. Unfortunately, many organizations don’t see things this way and often chastise their employees for friendliness toward an opposite-sex employee.