The #MeToo movement has given sexual harassment a visibility it hasn’t had for decades. But that doesn’t mean the issue has gone away—it’s still a reality for many people, most of them women. Harassment without physical touch is illegal and can be subject to a civil suit, but it’s not considered a crime against the state. So while we often group it in with sexual assault, it’s definitely more hazy. From a coworker or boss making an unwanted advance, to a man on the street telling us we have great “blowjob lips,” we’re facing harassment everywhere.
And to make matters worse, there’s no legal recourse at all for non-workplace sexual harassment if no physical contact is made: Offhand comments, “jokes” or other forms of offensive “teasing” are not considered illegal as long it doesn’t break the “general civility code.”
This is why we’ve asked experts about what steps you can take to hold someone accountable for sexual harassment. We could all use a guide.
A note before we get started
While this guide is meant to serve as a useful tool, it’s not meant to pressure you into reporting harassment. This is not a “YOU NEED TO DO SOMETHING” call to action. It is merely a message that you are not alone, along with a blueprint for how to take legal action, should you choose to do so. And what you end up doing is completely up to you. As someone who has been sexually harassed many times without taking action, I can assure you that we’ve all been there. I’d be lying if I said even writing this didn’t make me super uncomfortable. Such is the reality of living in a cultural landscape that doesn’t take women seriously.
What constitutes sexual harassment?
It can be hard to know if someone is sexually harassing you. As women and those raised female, we’re told to make ourselves smaller. We’re encouraged to accept male advances and not to speak up when we’re uncomfortable.
So, what exactly deserves the title “sexual harassment?” There are two types, according to attorney M. Reese Everson, author of The B.A.B.E.’s Guide to Winning in the Workplace: You Don’t Have to Compromise and founder of The Blush Project, an organization that partners with companies to help address sexual harassment in the workplace. “The first and more common type of harassment is hostile work environment sexual harassment,” she says. “This occurs when simple teasing, offhand comments, or seemingly innocuous acts become so frequent or severe that they create a hostile or offensive workplace,” she says. “The second type is quid pro quo harassment which is perpetrated by managers, supervisors, coworkers or clients who link an employee’s compliance with sexual demands to promotion, demotion or termination.”
HR is not there to protect you, they are there to protect the company.
What is a hostile work environment? Amanda Rue, founder of The Shift Work Shop—which offers consent-forward, sexual harassment prevention advice that focuses on consent negotiation, honest communication, and power dynamics—tells us that they “are defined by ongoing, pervasive or severe behavior that unreasonably affects an individual’s work performance or creates an intimidating, hostile or offensive work environment. Essentially, if it is of sexual nature, makes you feel uncomfortable, and negatively impacts your ability to do the job—physically, emotionally, or mentally—then it is likely unlawful harassment.”
What should you say to HR?
Here’s something I wish I’d been told when I was a 22-year-old employee of a startup: HR is not there to protect you, they are there to protect the company. This may sound scary and, well, that’s because it is. No company wants a sexual harassment complaint on their record.
With that being said, if you do approach HR, they are obligated to make a record and to take steps to investigate the situation. Document as much of the harassment as possible. This can include private IMs or texts, conversations wherein other employees have expressed similar discomfort, or anything else that might help. Rue explains that one of the reasons we’re so confused about sexual harassment is that it depends so entirely on a person’s lived experience.
She gives an example: “A man could be wearing a hat that says ‘GIRTH’ which he may not feel is offensive, and yet one person can interpret this as something that is offensive and [that] creates an ongoing hostile work environment.” The person wearing the hat doesn’t think they’ve done anything wrong, but their peers don’t see it that way.
Tell your trusted person the entire story and present them with evidence. Remember that you are doing nothing wrong.
When you go to HR, let your representative know that you’d like to make a formal complaint about sexual harassment. Present your evidence and give your full account of everything you’ve experienced. It can help to write down notes beforehand in order to get your bearings. Be prepared to answer questions.
What if you work at a small company with no HR?
I wish there was an easy answer for this, but there isn’t. If there is no one to turn to, your boss is likely the best choice. Of course, this gets complicated when your boss is the one sexually harassing you.
Rue says to look to the most high-ranking person who you most trust in the company. “Managers, supervisors, and company leaders should also be prepared to act accordingly when they hear about sexual harassment in the workplace,” she explains. Unchecked harassment “can have an insidious and negative impact on company culture for the long term, leading to higher employee turnover, mistrust in the company and decreased employee morale.”
Tell your trusted person the entire story and present them with evidence. Take some time to really think through what you’re going to say. Remember that you are doing nothing wrong. You can start with: “I feel extremely nervous telling you this, but I feel like I have no choice.” This will set you up in a way that encourages empathy from your superior.
Another option is to create an advocate within the workplace to help you combat this harassment. “Share this experience with a co-worker you trust that may have more ‘power’ in the company,” Rue says. “Using bystander intervention techniques, having a co-worker that is also aware of the situation, can create an advocate that can speak up for you should they too witness the harassment.” For more on “bystander intervention”, check out HollaBack!’s comprehensive guide. A trusted co-worker can often offer some helpful guidance or information to steer you to the best solutions.
Everson says it may also be helpful to look in your employee manual, if it exists, to see if there is a specific policy for sexual harassment. Not every company will have taken these measures, but it’s definitely worth doing your homework to see where you might find some tangible backup.
If you’re in a union, you can go directly to your union rep to file a complaint. They, unlike HR departments, are there to support and protect the rights of employees.
What if you’re a freelancer?
For freelancers, there is not a lot of recourse in most states, as you’re a contract employee and the company you’re working for has no obligation to support well-being. Rue points out that this varies from state to state. “New York, as one of the leaders in sexual harassment prevention policy, recently adopted legislation to protect freelancers and independent contractors as employees under human rights law,” Unfortunately, this isn’t the case for many “gig employees.”
“The higher profile the perpetrator, the more inclined they will be to want to handle the matter privately.”
Everson says if she were faced with the reality of sexual harassment as a freelancer, she’d go right for the neck: “I would document the incident, capture evidence, and/or witness statements and then inform the perpetrator that I am not interested and would prefer that they stop before I publicize their behavior,” she says. This may sound extreme to you, but sometimes a threat can be helpful. While freelancers may lack crucial protections, they’re usually less hampered by company policies on privacy and social media. (That said: Always check your contract!)
I wish I could give some cut-and-dry advice on this, but the reality is that what we need is real legislative change. Rue suggests going directly to the US Equal Employment Opportunity Commission (EEOC), “who provides a 180 day grace window to report the incident and file a charge against an employer. To note, this is only for unlawful sexual harassment, and does not include isolated comments or minor infractions.”
Is it ever a good idea to handle it privately?
Rue encourages people to self-advocate and to take proactive measures when they experience sexually offensive comments or behavior. If you feel safe and comfortable speaking up, you certainly should. “Speaking up in that moment empowers the one being harassed and has the potential to stop the harasser in their tracks to correct their behavior,” she says. “This model can disrupt the possible shame and discomfort that the harassed [person] feels at this moment.” This could be as simple as telling the man wearing the ‘GIRTH’ hat: “When you wear that hat, I’ve found that this makes me uncomfortable as I think it is sexually suggestive for the workplace. Would you mind not wearing it in the office?”
Now, if this is ongoing harassment, such as sexual advances or crude jokes, you should absolutely report them to HR, if you have that option.
Everson tells us that any sexual harasser trying to settle a complaint privately is likely doing so for their own benefit. “The higher profile the perpetrator, the more inclined they will be to want to handle the matter privately. That does not mean you should agree, but it may be helpful in getting the behavior to stop quickly,” she says. “In this instance, you may want to get an attorney to draft an agreement that the perpetrator can sign off on.”
What if you’re harassed outside of the workplace?
Like all forms of harassment, there is no right or wrong way to respond or not respond.
The awful truth is that sexually charged and explicit language outside of a professional context is not illegal under the law. When someone is sexually harassing you on the street without touching you, they are not committing a crime of any kind. When you speak up and talk back to someone harassing you on the street, there is always a risk of physical retaliation, though you’re much safer if you’re in a space with other bystanders present.
If you want to speak up, you certainly can. Hold your head high and denounce their comments using your strongest, clearest voice. You can also report the incident to a police officer. While this may amount to nothing, it can be cathartic to have your voice heard.
For more on how to respond to street harassment, check out this guide.