It’s Not Always Clear What Constitutes Sexual Harassment
Use This Tool to Navigate the Gray Areas
The #MeToo movement started by activist Tarana Burke gained momentum in October of 2017 when actress Alyssa Milano invited women on Twitter to respond “me too” to her tweet if they’d experienced sexual harassment or abuse. Women did so across social media, telling their stories and revealing the extent to which so many had lived in silence.
The Time’s Up movement was founded shortly thereafter to foster fairness, safety, and equity for women in the workplace. Part of its purpose is to alter the power system that favors men and thereby provides a foundation for discrimination and hostility toward women.
The passion was palpable. A cultural shift had taken place, and not just for women. Men began to consider their roles; some engaged in soul searching, wondering if they’d done enough as bystanders to stop sexual misconduct directed at women. Others, however, felt threatened. They worried that the accusations against high profile men leading to resignations and firings might happen to them. Some adopted the “Pence Rule” at work, refusing to meet with women alone.
In my experience working with leaders in organizations, much of this negative reaction to women’s voices being raised stems from a lack of understanding about what exactly constitutes harassment. Because there is a lot of gray area when it comes to delineating mild to serious forms of gender-based offenses, confusion naturally clouds efforts to eradicate them — and questions abound. Where are the lines over which men should not step? How should men and women be handling comments and behaviors that are mildly — or deeply — offensive? When are resignation and firing appropriate?
In response to questions like these, I developed the Spectrum of Sexual Misconduct at Work (SSMW) to help people define and differentiate among types of gender-based offense.
The SSMW was derived from my interviews and interactions with hundreds of women in a wide variety of fields. It is intended as a blueprint for men, women and organizations to use in becoming familiar with levels of offense that can harm work relationships and create or perpetuate hostile work environments.
Most important, the SSMW provides a means of talking about sexual misconduct — a way to halt backlash against women by formulating solutions. It also helps women decide when and how to respond to behaviors they see as offensive whether minor or extreme. Organizations can use it as a framework to provide training that improves work culture and lowers the risk of conflict and legal action.
As you can see from the spectrum, I used the term “sexual misconduct” to include mild and moderate forms of offense, sexual harassment, and abuse. The lowest level on the spectrum (“Generally not offensive” behavior) is included because women repeatedly told me that some seemingly innocuous behaviors, such as commenting on a woman’s looks or manner of dress, if accompanied by sexually toned glances or gestures, can be experienced as misconduct. Additionally, women I’ve interviewed believe such comments and behaviors, if repeated often enough, become offensive.
Decisions about which category a behavior falls into depend on the situation, history of the relationship, tone of delivery, and nonverbal behaviors. I can, however, provide some general examples to facilitate discussion. Comments like “You look nice today” or “I like your haircut” would most likely fall into the first category of “Generally not offensive.” Whereas, a comment such as “We can’t speak frankly around you women anymore” is more likely to be interpreted as at least “Awkward/Mildly offensive.” Behaviors such as uninvited hugs or implying or stating that women are distracted by family likely move along the spectrum to “Offensive.”
Jokes or implications about a woman’s intellect or skills being limited due to her gender or comments on physical attributes made with the intention of embarrassing, insulting, or demeaning the target are examples of the “Highly offensive” category. Behaviors further along the spectrum toward “Evident sexual misconduct” include such behaviors as looking a woman up and down in a sexually suggestive manner or grabbing, touching, kissing, or otherwise ignoring a woman’s expressed disinterest in an intimate relationship. At the far end of the spectrum, “Egregious sexual misconduct,” includes behaviors such as pressing against a woman suggestively and threatening or implying career damage to a woman who refuses to engage in sex or sexual behavior. The placement of these examples may vary somewhat across teams adapting the spectrum for their own use and teams may develop additional examples relevant to the culture in which they work.
Note that while the SSMW focuses on offensive behavior directed at women by men, sexual misconduct can take many forms. Certainly, a woman can be the offending party. An additional benefit of using the SSMW as a blueprint for discussions is that those other forms can be identified along with ways of effectively dealing with them.
How Companies Are Using The Spectrum
My goal in developing the SSMW was not to create a cut-and-dried, one-size-fits- all, static set of categories. I wanted to provide a working taxonomy that organizational teams and groups can adapt and make their own. Persuasion research shows that if people are involved in discussing different ways of looking at situations and developing rules for responses consistent with their views, they are more likely to be receptive to change. Ideally, people at organizations will work together to provide additional examples of behaviors at each level of the spectrum as well as ways to effectively respond.
Organizations from law firms to tech companies to nonprofits, have been using the spectrum. My advice to them — and to anyone who wants to implement it — is to treat the spectrum as a living document. Talk about what behaviors and examples should go where and why (see the exercise in the sidebar).
The experiences from companies using the spectrum have been encouraging. Katherin Nukk-Freeman, an attorney and partner at Nukk-Freeman & Cerra P.C, has used the spectrum in training employees and she’s found that it can encourage an “upstander culture.” By this she means a willingness on the part of women and men to address sexual misconduct and deal with it openly and constructively. Instead of ignoring incidents, Nukk-Freeman says, people are more willing to speak up.
David Lawrence, the Chief Collaborative Risk Officer at the Risk Assistance Network and Exchange (RANE), sees the SSMW as an essential tool for organizations to “understand the various and often nuanced ranges of sexual misconduct that can occur — as well as to find the necessary solutions from a risk management perspective that can protect an organization’s reputation.” He believes that too many organizations are under-responding. Some leaders think that certain conduct could never exist in their organizations. Others lay low or believe they’ve done enough about sexual misconduct. But Lawrence says, “Organizations that don’t provide employees with a way to talk about it, raise the issues early and share their experiences and perspectives, will remain on a slippery slope.” He adds, “While they wring their hands the problem can quickly metastasize.”
Sandra Corelli, vice president at the training company, Corporate Class Inc. based in Toronto, Canada, has worked in HR for over eighteen years and has started using the spectrum in her trainings on gender differences. For her, the spectrum is useful in assuring that the person who comes forward about sexual misconduct “feels heard and seen,” since it captures the nuance found in so many of these situations. “A single comment or gesture may mean little, but a string of them can turn into a sentence” — perhaps with unintended offensive meaning, she says. Corelli advises that no senior manager take for granted that offenses on the spectrum aren’t happening where they work.
Challenges to Using the Spectrum
Of course, using the SSMW presents challenges for some organizations. Speaking with U.S. congressional and senatorial staff members, for example, I found concern about being too visible on this issue, in part because they were afraid of creating a backlash. Another concern is that some colleagues have been asked to resign before their alleged misconduct could be assessed using a spectrum approach. If after using the SSMW, they realized that they might have overreacted, or in other cases, underreacted, there would be many challenging questions to answer.
The SSMW might also be difficult to use in an organization where open conversations about challenging issues aren’t the norm. Nukk-Freeman says that the spectrum would likely be more welcome in an “evolved organization” characterized by openness and flexibility.
The #MeToo movement escalated due to sexual misconduct in an industry known for a lack of such openness. I recently spoke with David Puttnam and Sandy Lieberson, award-winning producers and educators who described the film industry as especially challenging for women. Puttnam explained that even women who seemed secure at the top in the past have “always felt like they were looking over their shoulders” and Lieberson emphasized the “culture of fear” and lack of mentoring that hurt women’s chances of long term success. Such corporate cultures tend to go into lockdown when issues of sexual misconduct arise.
Talking about sexual misconduct may indeed bring up feelings that many individuals and organizations would just as soon avoid. But conflict is a part of change. The spectrum should be employed with facilitators — internal or external — who can manage discussions to avoid anger and help people focus on the future rather than the past.
Developing a Repertoire of Responses to Sexual Misconduct
In addition to helping organizations have more open conversations about what is and isn’t inappropriate, I also wanted to help people develop a repertoire of responses they can employ on-the-spot when an offense occurs.
By empowering people to respond on their own, issues that could become legal problems can be dealt with between or among the parties involved. Below is a sample of comments that can be used to halt gender-based offenses; some are suited to lesser offenses and to people with styles that are not direct. Others get right to the point. Which you choose to use will depend on the situation and what feels right to you.
“I’m taking a moment to be sure I heard you right.”
“This seems like a good time to take a break — to reflect on what was just said.”
“If I look perplexed, it’s because I’m thinking about how to give you the benefit of the doubt.”
“I suggest we step back for a moment, as something just went awry.”
“Of all the things I thought you might say, that certainly wasn’t one of them.”
“If I said what I’m thinking, we’d both be out of line.”
“For two people who respect each other, we’re certainly off course today.”
“Do you want to run that by me again in a less personal way?”
“Did you really say that?”
“I usually respond defensively to comments like that, so give me a moment.”
“If I didn’t know you, I’d think you were insulting me.”
“I have a rule about comments like that one — I don’t respond.”
“Were you making a point or simply trying to amuse yourself at my expense?”
“You’re funny sometimes, but not today.”
With the #MeToo Movement taking front stage at the moment, the considerable risk to careers and organizations, and potential backlash against women, it’s important to make every effort to talk openly about sexual misconduct. The better our ability to articulate how and to what extent particular behaviors offend, the better the chances of women and men working effectively and equitably together. While these conversations are no doubt challenging, they are far superior to a black hole of silence. No good can come from that.