What is sexual harassment? How can employees address it when it is happening? What are the best practices in moving forward?
These were some of the questions highlighted during a two-hour sexual harassment training last week that was hosted by The Nevada Equal Rights Commission (NERC) and attended by about 100 human resource professionals. The commission partnered with UNLV Greenspun College of Urban Affairs and the Equal Employment Opportunity Commission (EEOC) for the event, which was held at the East Las Vegas Library and simulcast to Carson City.
UNLV Associate Communication Studies Professor Jennifer Guthrie started the presentation by talking about the #MeToo movement that has garnered national attention in the last two years. She referenced Time Magazine’s “Silence Breakers” piece and quoted Tarana Burke, the civil rights activist who started the movement.
The movement hit close to home last year when casino magnate Steve Wynn resigned in the midst of sexual misconduct allegations. He was just one of a long list of powerful men who have been the subject of sexual harassment allegations, including Hollywood mogul Harvey Weinstein, CBS CEO Les Moonves, former President of Costa Rica and Nobel Peace Prize winner Oscar Arias, and former Google executive Andy Rubin.
“MeToo is about using the power of empathy to stomp out shame,” Guthrie said. “So today, something we can all do is use that power of empathy to have better organizations, better communities and better people.”
A bill that would have mandated NERC conduct the sort of training at the workshop and increase funding for it died in the Legislature last session.
“NERC was encouraged by this proposed legislation and disappointed when it died,” said NERC Administrator Kara Jenkins. “Despite this, we will continue to partner with the EEOC and provide quality training to the best of our ability.”
Both NERC and EEOC handle cases that violate Title VII of the Civil Rights Act of 1964 which prohibits employers from discriminating against employees based on five protections: race, color, religion, national origin and sex. They also focus on equipping organizations to handle problems that arise internally through training and policy manuals.
“If you are sexually harassed by your employer, you may file a complaint with us,” said Jenkins. “However, we really, really encourage folks to go to their [Human Resource] professionals first.”
Although NERC continually holds joint training with employers throughout the year, the training last Monday was only the second sexual harassment-specific training the state commission has put on since Jenkins was appointed administrator in 2013.
What is sexual harassment?
Jenkins explained that sexual harassment is “unwelcome conduct.” This includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.
“Look at body language,” said Jenkins. She gave an example of going to kiss someone on the cheek and then that person swerves away in response. “You know when someone swerves you that it’s unwelcome. Pick up on subtle, non-verbal cues.”
If you don’t know? She says the answer is simple: ask.
Jenkins said the statute in 1964 mostly envisioned sex-based charges for equal opportunities in the workforce, rather than the harassment seen in light of the #MeToo movement. However, today NERC and the EEOC will take all complaints related to sex, sexual orientation and harassment. Nevada’s employment practices statute also expresses that employees are protected from harassment.
“It’s our duty as employers to make people feel comfortable and safe, and to know if [employees] are being harassed they can talk to someone so it can be addressed,” said Jenkins.
In case law from the 9th Circuit Court of Appeals, under which NERC currently operates, sexual harassment pertains to behavior that is “severe or pervasive.” NERC defines workplace sexual harassment as one of two categories: hostile work environment and quid pro quo.
A hostile work environment is when the harassment is persistent.
An example is the 2018 case of EEOC v. Costco Wholesale Corporation in the 7th Circuit Court of Appeals. The case involved a female employee who was harassed repeatedly over a 13-month period by a male customer who would follow her around the store, film her, bump into her, touch her face, make comments about her appearance and ask personal questions. EEOC won the case on the grounds that Costco allowed a hostile work environment.
Quid pro quo is a favor or advantage granted or expected in return for something. Jenkins said this is a particular situation involving a supervisor and a subordinate in which there may be a subtext to an invitation.
“Maybe, I ask someone out to dinner to talk about ‘their future,’” said Jenkins. “Why do we need to talk about your future at my house over dinner? We can talk about it at 8:30 in the conference room with our mug of coffee.”
Inappropriate touching falls under the category of quid pro quo, even if there’s no proposition.
Effects on victims
Flight, fight and freeze are involuntary responses the body experiences when it senses a threat.
Guthrie, whose research focuses on domestic violence and sexual assault, said sexual harassment will often trigger one of these survival responses — a process that victims do not have control over.
“It is a giant process that includes things like slowing down your digestive system, sending blood to your limbs,” said Guthrie. “You have no control over whether you will flight, fight or freeze.”
These stress responses also affect how the brain stores memories and details, warping a particular situation or timeline of events. She said that someone who has been sexually assaulted or harassed could remember a distinct smell or sound, but not when it happened or even the location. This, in turn, makes it difficult for victims to recount events.
Guthrie said many in cases throughout her research, victims tend to minimize, deny and blame themselves for their experiences. She considers it part of the reason victims may take a long time to say something happened to them, let alone formally report it.
According to a 2018 report from the nonprofit Stop Street Harassment, 81 percent of women and 43 percent of men had experienced some sort of sexual harassment or assault in their lifetime. Guthrie told the audience that according to some estimates, 80 to 90 percent of people who experience sexual harassment never report it.
She says while there has been more information about harassment brought forward in recent years, there are still several communities left out of the conversation, including minorities, LGBT+ people, immigrants and men.
“This is a good start, but we need more data for more diverse populations,” said Guthrie, who added that work environment inclusivity plays a factor in whether people feel like they can report an incident.
Out of all the accounts of assault, only 1 percent of people confront the person who had harassed them. She said victims are often afraid of retaliation, and for good reason. Many complaints to NERC focus less on the harassment itself and more on the retaliation received from reporting, including being moved to a different department and hostility that could lead to unemployment.
Effects on the workplace
In recent years, damage to the workplace stemming from a harassment case has been extensive.
From fiscal year 2010 until fiscal year 2018, employers paid over $1 billion during EEOC’s pre-litigation enforcement process to employees alleging harassment. The situation also causes many employees to leave, making turnover another effect in the workplace.
Sexual harassment charges are not only expensive, but can cost future employee and customer loyalty.
“It’s harming on both sides now,” said EEOC Enforcement Manager Patricia Kane, who mentioned reputational harm and the seriousness of the issue that has raised since the #MeToo Movement.
“People are losing their jobs,” she said.
Guthrie explained that a work environment plays a large role in how a sexual harassment incident affects both an organization and the individual moving forward. She includes factors such as organizational climate, commitment and productivity.
“If someone is in an organizational climate where there is a tolerance for sexual harassment, it seems normal. It seems [that] victims are dismissed or their experiences are minimized,” Guthrie said. “Of course they are going to have less job commitment, less satisfaction and more turn-over.”
Filing a sexual harassment claim
NERC and the EEOC offers an avenue of support for individuals who feel like their workplace has not taken corrective action. Their teams work with investigators to look into claims, help with mediation or legal action and mandate training and policy manual updates.
Anyone who feels they have been subject to a violation can file a charge with NERC. But charges will only be considered if an organization has 15 or more employees, the last date of an incident must have been within 300 days of filing, businesses must be located or licensed in Nevada and there must be an employee/employer relationship between the parties
Charges can be made against both employers and labor organizations. Complaints can be filed through filling out the intake form on NERC’s website, by email or at office locations in Reno and Las Vegas.
After a complaint is filed, an interview will be scheduled to discuss the complaint to assess if it meets legal standards. After a charge is completed, the business owner is notified by receiving a copy of the charge and a request for remedy. Generally, there is an opportunity to resolve a complaint before further investigation. The length of the case depends on the complexity of it.
Best practices and moving forward
As more awareness has been brought to the issue through the #MeToo movement, Jenkins said there has been an uptick in training requests by employers to prevent harassment in the workplace.
“We are encouraged by that,” she said. Jenkins said less than five percent of the 1,524 complaints that came to NERC last fiscal year dealt with sexual harassment
“But, it’s not indicative of actual incidents. We have overall low reporting and we think that is because victims fear retaliation,” said Jenkins.
Kane offered organizations advice. She said when a situation occurs, it’s important for someone in the top levels of a workplace, like a president or head manager, to say that this sort of behavior will not be permitted and to explain how it does not align with the company’s values.
During her presentation, she asked the room how many organizations have a zero-tolerance policy. About half the room raised their hands.
“And the harasser has been there five years,” she said, with laughter breaking from the crowd. “If you’re going to be zero-tolerance in there, then it has to be zero-tolerance because that’s how you validate to your employees ‘that’s what we do here.’”
Kane said training for frontline managers also is key. While an organization may have an excellent policy they need continued refreshers. This is done through civility training, focused on fostering respect throughout a workspace, and bystander intervention training that enables anyone in an organization to call out bad behavior.
“We need to change culture,” said Jenkins. “It starts with all of us.”
Jenkins acknowledged that it’s hard when there are a lot of complaints and not a lot of them rise to harassment under the standards of the law. In spite of NERC’s best efforts, the agency cannot stop all harassment, especially in its more subtle forms.
“There [is] a group of people that really are being affected,” she said.