Sexual harassment in American work life is pervasive — as much as 80 percent in some sectors. But most women don’t stand a chance of winning a lawsuit. So having a plan to deal with the problem is a good idea for all women.
When it comes to harassment, Georgia Gatsiou, chef at Beard Papa, says: “I would talk to him myself. I am aggressive like that.” You should probably take that approach as well. Most sexual harassment isn’t severe enough to hold up in court, and the law isn’t strong enough to protect you from most types of retaliation. So unless your safety is at risk, you’re usually best off handling the harasser yourself rather than reporting him to human resources.
To win a lawsuit, courts require proof that harassment was severe and pervasive in the work environment, according to Alisa Epstein of New York-based law firm Samuelson, Hause & Samuelson. And that employee handbook becomes important too. Gatsiou is typical of employee handbook readers: “It’s big. I’ve read a lot of things in that handbook. Maybe there’s something about harassment. I don’t know.” But when you report to human resources, you must follow your company’s policy precisely or you risk losing your ability to take the company to court.
After you’ve filed a report, human resources will protect the company, not you. Human resource executives talk about their concern for harassment. But, according to Jim Weliky of Boston-based law firm Messing, Rudavsky & Weliky, “most human resource departments don’t live up to their propaganda.”
The law is set up to encourage a company to take proscribed steps to protect itself from liability rather than to protect your emotional stability, or, for that matter, your career. Once you take action against a harasser, retaliation is your biggest problem.
“Very few retaliation cases we have were not triggered by reporting the problem to human resources,” says Weliky. “But not all retaliation is strong enough to make it to court.” Retaliation is usually subtle: fewer invitations to lunch, a cubicle that isolates you from office networks, and project assignments that are boring. That sort of retaliation effectively holds back your career without standing up in court.
Just because you don’t have a lawsuit doesn’t mean you need to put up with harassment or retaliation. It means you need to take things into your own hands. Your goal should be to stop the harassment without hurting your career. No small feat, but possible.
“This is a negotiable moment,” says Carol Frohlinger, attorney and author of Her Place at the Table: A Woman’s Guide to Negotiating Five Key Challenges to Leadership Success. “Before going to human resources, have a frank conversation with the person making you uncomfortable.
“Be clear on what behavior is harassing and that you don’t like it. As long as he doesn’t repeatedly refuse to negotiate like saying, ‘You’re so premenstrual’ and walking away,’ ” Frohlinger said, “you should negotiate things for yourself.”
As in any important negotiating session Frohlinger advises that you assess your “best alternative to a negotiated agreement,” or BATNA. Your BATNA is probably to leave the company. But you should let your opponent feel that your BATNA is to go to human resources. Because no matter how arrogant he is, he will not be happy about being dragged into a ‘he said-she said’ mess before the human resources department.
When you negotiate, aim high: If your harasser is your boss, ask for help to switch departments, and ask to go to a better department with a top manager. It’s in your harasser’s interest to help you. Or, if a co-worker is harassing you, make sure the co-worker appreciates that you handled things yourself. You save the co-worker a lot of problems by not reporting him.These are ways to decrease the chances of retribution while squelching the harassing behavior.
If the harasser will not negotiate with you, assess your power versus his. “Sexual harassment is more about the balance of power than what has been said,” advises Weliky.
When Kate, a high-powered New York City lawyer, was young and working with a managing director, she recalled an incident in which he asked her to “bring the papers by my hotel room, and don’t worry if I’m only wearing a towel.”
She thought the comment was ludicrous and told the whole office. “I could do that because I was on my way up in that firm, and he was doing poorly,” she said. “He didn’t have a lot of ways to make my life difficult. In fact, someone told his wife and she bawled him out in front of his co-workers.”
A great situation, but most of you cannot depend on your harasser’s wife for vigilante law enforcement. If the balance of power is not in your favor, and you get nowhere negotiating, find a new job and leave the offending company–in that order–because it’s always easier to find a job when you have a job, even if you hate the job you have.
There is plenty to do in this world that does not require you to work in companies that enable a boys’ club atmosphere. There are a lot of men who feel alienated in this atmosphere too.