07 Nov “We Don’t Make Jokes Like That Around Here”: #MeToo, Sexual Harassment, and the Role of the Legal Counselor
As I scrolled through my newsfeed a couple weeks back and saw the stream of “Me too’s” saturating it, while I was angry and disgusted at the pervasiveness of sexual harassment and assault, I was mostly in awe of the bravery of all the women putting themselves out there to be counted. Think about the thought process and emotions they had before posting: “my mom is going to see this and be sad; people will think I’m a slut; I don’t want people to think I’m a complainer who can’t take a joke; was that butt grab by a stranger severe enough to join with women who have been raped?; the rape happened years ago, I don’t want to dredge up those memories.” My stomach wrenches thinking about how difficult it was to click post, and I’m so grateful for all the women who did.
The next day, as I do, I wondered what sort of action and change the “me too” campaign might bring about. I hoped it would spur men and others in positions of power to realize how rampant sexual assault and harassment are in day-to-day life and in the workplace. That realization could lead them to use their positions of power to do what they can to reduce occurrences.
But then it occurred to me, I hadn’t been hearing from many men about this. My friend list includes dozens (hundreds?) of active, influential men I admire who are leaders in their fields. Only a couple of them posted anything about “me too.” I went back through my newsfeed. The “me too” posts were acknowledged by a strong sisterhood of fellow women, but only by a few men.
What’s with the radio silence?
I can try to understand where it’s coming from. Most men aren’t sexual harassers. And a lot of men don’t have the personal experience of being sexually harassed or assaulted themselves, although I know some sadly do. I can see why these stand-up men hesitate to speak up on an issue when they don’t quite understand it and could be brought to task by the feminist man-haters out there if they slip up and say the wrong thing. (Yes, I mentioned feminist man-haters to establish that I am not one of them, just in case any readers were wondering. For absolute clarity: I am a feminist. I am not a man-hater.)
For starters, what sort of acknowledgement are men supposed to use? The “like” icon seems wrong when you don’t like that someone was sexually harassed. But maybe the “heart” icon is sexual harassment itself? I would recommend going with “sad” or “angry,” although I assume anyone who acknowledges a “me too” post in any way to have the best of intentions.
Plus, the men who have spoken out against Harvey Weinstein and a culture of harassment haven’t come off the greatest. Anthony Bourdain, George Clooney, and Quentin Tarantino have all said some boneheaded things while speaking out against Weinstein. I can relate to a fear of coming across as offensive.
At least it’s clear that Bourdain, Clooney, and Tarantino are grappling with the issue and are saying they want to do better. Good for them. Hopefully now they will back that up with using their powerful positions to act.
I encourage more of the good guys out there to also take some action. Push past complacency. Take initiative, do something to fix problems we know about, and trust that most people will take our actions the right way.
Since this is a legal blog, and I am a lawyer, I want to point out that, in addition to being the right thing to do, this is good for business. Of course, I advise my clients, as all good lawyers do, to have a sexual harassment policy, frequent trainings, and a procedure for reporting and investigating harassment. But lawyers have been giving this advice for decades now, and the problem remains rampant. While further steps are not necessarily legally required, perhaps they would go further towards reducing sexual harassment in the workplace and reducing subsequent lawsuits.
Here are some suggestions for some actions we can start with to try to reduce sexual harassment and assault, especially if you’re a boss or in any position of power.
First, take off your blinders. Sexual harassment is awkward to acknowledge. It’s often easier to remain naïve and brush off little comments as jokes or harmless flirting. But think about what it means when, for example, one of your coworkers tells the intern, “don’t worry, I’m married,” when he accidentally brushes against her. Or what it means when you and your coworkers invite the male intern out for lunch, but hesitate to give the female intern the same opportunity to network (I love this advice.). These situations stem from and breed power imbalances.
There is a line between appropriate workplace romance and sexual harassment. I’m not sure it’s all that fine. Clearly, the examples above have nothing to do with two equals finding love at work. With effort, we can evaluate individual instances to ascertain whether they use sex to foster a power imbalance or if they are consensual, work-appropriate flirting that may lead to lifelong love and happiness. (Thanks for going on that first date to McDonalds on your lunchbreak, Mom and Dad.)
Second, listen and believe her when you hear accounts of sexual harassment and assault. Don’t downplay what she tells you, even just in your mind, with thoughts like, “it was just a joke; she did kind of bring it on herself; he was just flirting; he’s just from a different generation; she’s a known complainer; she’s too sensitive, etc.” I should add, with my lawyer hat on (although nothing on this website is legal advice): if you are a supervisor and someone is reporting an incident of sexual harassment to you, it is possible to believe her account while simultaneously withholding judgment on whether it is legally actionable sexual harassment until you conduct an investigation.
Third, speak up! Speak up immediately and in the moment, if possible. I recommend having these phrases on the tip of your tongue: “We don’t make jokes like that around here” or “that’s not funny.” Here’s an example of a situation I might hear from one of my clients, and one that I know from personal experience happens all the time:
A smart employee has proven herself to be highly capable, so the boss decides it’s time to trust her with a leadership role. He puts her on a project involving direct contact with an important client. The employee knows she’ll be working on this project around the clock, so during the kick-off phone call, she gives the client her mobile phone number. The client responds, “Nice. Got another girl’s digits.” The boss isn’t comfortable with the comment, so he quickly steers the conversation back to the project goals.
What if, instead, the boss said, “we don’t make jokes like that around here” immediately after the client’s joke? It’s not too awkward. It prevents the employee from losing any power in the situation. The client knows that if he further harasses the employee when the boss is not around, the boss is likely to believe and back up the employee. Hopefully, this small phrase sets an appropriate culture and nips any potential bigger problems in the bud. But maybe you’re thinking, “what if I lose the client by saying that?” Really? Really? I hope you’re not thinking that.
If you didn’t speak up in the moment, I recommend sending a quick follow up email saying something to the effect of, “Thanks for the productive call! Please don’t make sexually tinged jokes going forward, though. Looking forward to working with you, and we’ll have our first update for you next week.” Copy or blind copy your employee so she knows you have her back.
Please do not start micro-managing the project, even if the purpose is to ensure the employee isn’t further harassed, without strong consideration of the consequences. Even with the best of intentions, this sends the message that your employee cannot be trusted to handle the important work on her own. This sets her back in her career.
Obviously, the example above is a relatively minor instance of sexual harassment. It’s not legally actionable by itself. You should certainly respond in measure to more severe harassment, with advice and direction from your attorney.
The above suggestions are by no means an exhaustive list of everything anyone should ever do regarding sexual assault and harassment. In fact, I didn’t get into the typical legal advice that I wholeheartedly recommend all businesses implement. This includes:
- Annual sexual harassment training for your employees and managers;
- A clear sexual harassment policy in your employee handbook, distributed to all employees;
- Multiple designated people to whom your employees can report instances of sexual harassment;
- Informing your legal counsel of any reports of sexual harassment;
- Keeping proper records of reports of harassment and actions taken;
- Promptly and thoroughly investigating any reports of harassment;
- Ensuring your employees are not retaliated against after reporting harassment; and
- Appropriate actions against sexual harassment perpetrators.
We at G & G Law, LLC can assist with any of the above. Contact us!
These legally recommended steps alone are not sufficient to eliminate sexual harassment. For that, business owners and people in power need to go beyond what’s legally required of them to address the problem. We all need to put forth our hearts and minds into working to change the culture of omnipresent sexual harassment.
I’d be thrilled if this post starts a dialogue. Please comment below with your thoughts, suggestions, critiques, questions, etc.