In less than a year, two very high-profile cases of sexual harassment have come to light in the U.S. Last year, Fox and Friends host Gretchen Carlson sued Fox chairman Roger Ailes, alleging she was fired because she wouldn’t have sex with him. This month, veteran Uber engineer Susan Fowler wrote a Medium post describing her own experience of sexual harassment and her subsequent decision to leave the company. And now, A.J. Vandermeyden, a female engineer at Tesla, is suing her employer for sexual harassment, alleging that not only has she been repeatedly harassed and paid less than her male counterparts, but when she reported her concerns, she was also further mistreated.
Once the first two women came forward, others at their companies followed. Additional reports of harassment and a toxic company culture surfaced from those within Uber. It’s not surprising, considering that a survey of more than 200 women who work at Silicon Valley’s best-known companies found that 60% have been sexually harassed on the job. A broader study by Cosmopolitan in 2015 found as many as 1 in 3 women reporting being sexually harassed at work.
According to the American Association of University Women, “Very generally, ‘sexual harassment’ describes unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.” It’s illegal because it is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
But it’s not always that clear cut, according to Steve Cadigan, founder of Cadigan Talent Ventures, who was former VP of talent at LinkedIn. Cadigan says he’s investigated dozens of harassment claims through the years, and has found there are some misunderstandings about the subject.
First, he points out, a sexual harassment claim doesn’t have to include behavior that is sexual in nature. “Under the law, sexual harassment is ‘creating a hostile work environment’ that by definition is fairly broad,” Cadigan says. They can also be made against a coworker who is of the same gender.
Cadigan also points out that a company that does business globally often has a code of conduct that supersedes local law in some cases. Cadigan experienced this firsthand while working in the Beijing office of a U.S. company, and an employee reported sexual harassment. “The accused employee accurately told me [for that year], ‘Sexual harassment is not recognized as illegal behavior in China,’” Cadigan recalls. “I informed him that when he joined, he signed a company code of conduct that said the U.S. company conduct policies are in place,” he says.
In the U.S., even though the law has been in place for over 50 years, harassment persists, says Catherine Tinsley, PhD, because “men have more social status.” Tinsley, a professor of management at Georgetown University’s McDonough School of Business, says that such sexual advances are a power play and a way to put a woman who is being particularly “uppity” in her place. “That’s not the way it should be,” she underscores. “It’s the way it is.” Which is why it is important to report any instance of harassment. Of course, sexual harassment doesn’t just happen to women, but it does happen to women more often. In 2013, for example, over 10,000 charges involving sexual harassment were brought to the Equal Employment Opportunity Commission (EEOC), 82% of them by women.
Tinsley notes, “You can never be fired for raising the issue, but know that when you escalate, [the company’s leadership] is compelled to investigate, and they can’t necessarily do it anonymously.” She understands that escalating a sexual harassment claim can make some people feel uncomfortable. That can be due to having to recount the incident(s) to others, or whether the employee trusts the company’s culture and processes or not.
Cadigan says an officer of the company (such as a vice president or C-suite executive) is required to report any claim of sexual harassment brought to their attention. “I have had many women, and some men, come to me over the years and say, ‘I want to tell you something, but I don’t want anyone to know,’ or they say, ‘I want to tell you something in confidence, but I don’t want you to do anything about it.’” When he’s gotten such a request, Cadigan says he’s explained that he’s required to report and act on two things: “A claim or witnessing of sexual harassment, and a law potentially being broken in the company.”
That said, Cadigan offers a series of practical steps a worker should take if they’ve been sexually harassed.
1. Read your company policy and the law on sexual harassment (if any) in your state or jurisdiction very carefully and print them out. The policy will usually include your rights, protections against retaliation, and an outline of what happens if a claim is reported.
2. Find out if your company has a policy that protects whistleblowers from retaliation. If they have one, read it and print it out.
3. Determine who in your chain of command is the most mature, reasonable, and capable of being objective in handling something as sensitive as your harassment claim.
4. Write down what you plan to say to report the harassment. Have as many specifics as possible. Make sure you clarify how the harassment has affected your ability to do your job. Practice with someone you trust outside the company who will keep this confidential. This will help you to be calm when you make your claim.
5. If you have any witnesses that you trust, ask them for confirmation and support. This is a delicate and risky step that you may not want to take unless you trust that this person will keep the issue confidential until and if they are interviewed as part of a formal investigation.
6. Ask for a meeting with the person you choose in your chain of command and invite the appropriate executive from HR.
7. Explain the situation, give examples, give the names of witnesses, and tell them the impact this has had on you. Let them know that you did your homework: You were subject to what you believe violates the company’s sexual harassment policy and/or the law, and show them your printed evidence. Tell them that you want the behavior to stop in order to work in a safe and supportive environment.
8. Once you have laid out your complaint, ask: “Do you think this behavior is acceptable at this company?” If you get them to admit it’s wrong, make sure you write it down in your notes.
9. Listen to what they say and write everything down. Let them see you are documenting, and ask them to slow down if necessary.
10. Thank them and ask what the next steps are, who will conduct the investigation, who they will talk to, how long will it take to complete it, etc.
Cadigan adds that the HR leader should explain what they are going to do, which should be a highly confidential investigation to protect you from retaliation. “If the first thing they do is to try to support the offender/accused or to make excuses for that person,” he contends, “you should politely tell them that you strongly disagree, and that if they do not conduct a proper investigation, you will be given no choice but to seek justice through an attorney who can represent you properly.”
Speaking out can carry a price. “There is no way you cannot assure that you will not be fired or blackballed for making a claim of sexual harassment,” Cadigan maintains. The EEOC found that charges of retaliation linked to sexual discrimination claims grew to about 40,000 in 2015, which is more than double the number in 1997.
Cadigan says that while that’s unfortunate, “it is not illegal to be a horrific manager, and some people have been fired even though it’s wrong and in some cases illegal.” That’s because most states and companies are “at-will” employers, meaning they have the right to terminate an employee at any time. “While there are some laws that offer protections for minorities, etc.,” Cadigan observes, “it will not stop a company from firing someone and claiming another reason.”
Tinsley encourages those who have experienced sexual harassment to talk to coworkers about it. It’s so easy, she says, for women in particular to internalize. But speaking about it can serve a dual purpose of making a case much stronger if others have had a similar experience, as well as providing a way to heal a damaged psyche.
Keeping it hidden, says Tinsley, can feel shameful. “If you talk about it,” she asserts, “you realize it is not about you, it’s about the other person.” And she adds, “Just as the aggressor is not categorically evil, you didn’t do something wrong to invite [the sexual harassment]”–important points to remember when emotions are running high.