The Shield of Silence by Lauren Stiller Rikleen

Author:Lauren Stiller Rikleen
Language: eng
Format: epub
Tags: LCSH: Sexual harassment—United States. | Sexual harassment—Law and legislation—United States. | Bullying in the workplace—United States. | Discrimination in employment—United States.
Publisher: American Bar Association
Published: 2019-11-16T16:00:00+00:00

The Promise of the Policy

There is a high cost paid by those who are subjected—either as a victim or a bystander—to the behaviors of fellow workers who demean, disparage, or insult others, whether that treatment is against individuals or particular groups. Yet, too frequently, people who finally muster the courage to report negative behaviors are told that the words or actions did not violate policy nor meet a specific legal definition of, for example, sexual harassment. The resulting disengagement and lower employee morale also affects the organization’s bottom line.

In addressing misconduct, workplaces should reach beyond a legal definition of sexual harassment and seek to address the full range of behaviors that could impact culture and employee engagement. Organizations should not require a strict legal definition to be met before they can respond to conduct that undermines a culture of civility and respect. Behaviors can be identified as unacceptable, regardless of whether they are legally actionable. If it is a goal of an organization to develop a respectful and inclusive workplace, then honest conversations about ways to promote those goals may actually become easier once removed from a legally constrained definition of harassment.

A comprehensive policy should leave no doubt about the conduct that it prohibits and should impose consequences for violations of the policy. A group of legal scholars recommended a broad-based approach:

Harassment policies, trainings, and reforms should cover all conduct that demeans, intimidates, excludes, undermines, or otherwise treats people differently because of sex, rather than focusing narrowly on unwanted sexual advances and other sexual behavior. . . .

Harassment policies, training, and reforms should cover race-based and other types of harassment and discrimination (race, color, religion, national origin, age, and disability, for example, in addition to sex, sexual orientation, sex/gender stereotyping, and gender identity.) They should explicitly cover and explain harassment and discrimination that is intersectional (based on more than one factor).228

Experts recommend that it can be helpful to include examples of prohibited conduct in sexual harassment policies to provide guidance. An ABA publication offered this example of inclusive policy language:

The type of conduct that is forbidden by this policy includes, but is not limited to, any one or a combination of the following:

Demands for sexual favors in exchange for continued employment or for some benefit associated with a term, condition, or privilege of employment, including such things as favorable performance reviews, assignments, commendations, promotions, and bonuses;

Sexual jokes, epithets, advances, or propositions;

Verbal abuse of a sexual nature;

Verbal commentary about sexual prowess, attractiveness, or deficiencies;

Sexually degrading or vulgar descriptions of another individual;

Leering, whistling, touching, pinching, or assaults;

Touching of body parts;

Suggestive, insulting, or obscene comments or gestures;

Comments with respect to gender nonconformity and gender stereotypes;

Bullying;

Coercive sexual acts;

Unwanted dating propositions or sexual advances;

Display or transmission of sexually suggestive or explicit, demeaning, or hostile pictures, objects, posters, graffiti, or cartoons;

Questions about sexual conduct, sexual orientation, or sexual preferences;

Hostile, demeaning, or intimidating conduct that is consistently targeted at only one sex, even if the content is not sexual.229

In their policy expectations, employers should also consider including the use of social media.

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