Why Sexual Harassment Is Still Happening in the Workplace
“I am worried about my new boss,” reported my client, Julie, a bright young woman in her thirties. “I had to leave my last job because my boss demanded sexual favors from me in order to keep my job. I had no one to turn to for help because he is so powerful and respected in the small world of our profession. Reporting him would have been career suicide, so I just quit. Now I am worried that my new boss is starting to show signs of the same expectations. I need this job and I don’t know what to do! Can you help me?”
Has nothing changed since 1991 when Anita Hill, an obscure law professor, reluctantly described the lewd behavior of her previous boss, Clarence Thomas, during the Senate confirmation hearing for his nomination to the Supreme Court? Unfortunately, the answer is “No, not much has changed.” Professor Hill helped us give a name—sexual harassment—to an ancient practice by powerful people (usually men) over less powerful people (usually women) in the workplace.
Since 1991, new laws and organizational policies have been passed to prohibit this behavior, but it has not stopped. In fact, James B. Stewart of the New York Times reports that the problem is still massive and pervasive. Consider the recent sensational cases of Roger Ailes and Bill O’Reilly of Fox News and Bill Cosby, the comedian. And consider the experience of my client Julie. Why is this still happening?
I believe that sexual harassment continues to be a fact of life for many women because of these factors:
- Power, unchecked and unchallenged
- Career damage for women who come forward
- Employment contracts that require sexual harassment claims to go to arbitration as a condition of employment
- Isolation of women who are forced to sign nondisclosure agreements when they receive settlements during arbitration of their claim
- The silence of men and of people in key functions in organizations, such as the HR, legal, and finance leaders at Fox News who helped cover up the misdeeds of Ailes
Sexual harassment happens, for the most part, because it is a power game. Julie’s case is a clear example of an older male boss using his power over a younger female employee to demand sexual favors that she may feel powerless to refuse. Yes, I have seen women with power demand sexual favors from less powerful men, and I have also seen same-sex sexual harassment, but the latter two types are much more rare. Nonetheless, the key to the dynamic is that one person has real power to promote, demote, or fire the lower-power person—to retaliate—if the employee refuses the demand for sexual favors.
Fear of retaliation is what makes many women leave good jobs and even walk away from a profession they may have spent years training for. According to Noam Scheiber and Sydney Ember of the New York Times, studies indicate that “the great majority of sexual harassment incidents at work still go unreported” because of fear of retaliation. Carol Costello of CNN, who experienced sexual harassment earlier in her career but did not report it, agrees that women who come forward verbally or file a lawsuit still face consequences. In fact, Scheiber and Ember explain that many plaintiffs’ lawyers argue that the risks to women of coming forward have increased over time as the Internet allows a label of “troublemaker” to follow a woman throughout her life.
Jen Agg, writing for the New York Times, describes this challenge for women building careers as chefs. Relatively few top chefs are women, and women know that if they complain about the rampant sexual harassment in the testosterone-fueled environments of most restaurant kitchens, “you get a reputation for not being a ‘team player’ and you will not advance.” Women know they have to stay quiet or leave the industry.
Isolation also keeps sexual harassment alive and well. When women go to HR and complain about a high-level boss, they are sometimes offered a settlement to leave and keep quiet—an option that may seem preferable to being fired or demoted—by signing a nondisclosure agreement in exchange for a payment. In this case, no one talks, so each woman thinks that she alone has been subjected to the abuse, and the perpetrator can continue abusing other women for years without consequences, as did Ailes and Cosby. Furthermore, those who know what is going on may collude to protect the powerful man, as happened in the case of both Ailes and Cosby, and women really don’t have anyone they can talk to who will help them.
What can be done?
We must eliminate nondisclosure agreements and employment contracts with arbitration requirements so that powerful perpetrators can be held accountable, and we need women and men at all levels to break their silence when they know that sexual harassment is going on. It’s time for this to stop. Julie should never have to quit her job or be afraid of her boss again, and neither should anyone else.