Today we will hear from a local lawyer on the topic:
Disclaimer: I’m a lawyer. But I’m not this kind of lawyer. I’ve never taken on a sexual harassment claim nor defended one. While I think it’s useful to refer to the law in issues like these, I’m no more a legal expert in this area than the average reader.
When I think about the issue of sexual harassment in the workplace (as so many of us are right now), I’m seeing it from the employer’s perspective and from the male perspective. I think the recent happenings in Hollywood, in American politics and in universities around the globe are forcing those of us with those perspectives to look at the issue of workplace harassment with a broader perspective than we may have previously.
The Community Legal Assistance Society of BC (CLAS) has an excellent breakdown of the legal definition of sexual harassment in the workplace here. The key elements given to us by the case law are:
a. Conduct of a sexual nature which is gender based,
b. Conduct that is unwelcome, and
c. Conduct that detrimentally affects the work environment or leads to adverse job- related consequences.
From an employer’s perspective, I have tended to see these things in pretty black and white terms for myself. I’m the boss. Marital status notwithstanding, it’s clearly inappropriate for me to engage with any of my staff in any of the conduct that has elements “a” and “b” above, because doing so carries far too high a risk of also becoming “c”. And I feel the same way about the responsibilities of employees down the chain. However, I’ve never had to consider whether sexual advances between peers in the workplace are acceptable and though it’s never become an issue for me, I’ve failed to recognize some important issues in defining workplace sexual harassment.
The CLAS page notes that “consensual conversations about sex are not prohibited in the workplace” but I’ve always been extremely uncomfortable when that sort of talk is engaged in in the office, even when it seems clearly consensual. The law appears to support the idea that in such situations, if everyone is “participating” the onus is on the person who feels uncomfortable to raise an objection. I think for a very long time, this seemed fine to me. It’s all in good fun right?
Recent famous events have me thinking a little harder about this. As I said I’m often uncomfortable in these situations. I’m the boss. If anyone has comfort in the power to say “this is inappropriate and I don’t want to hear it here” it’s me – and I’m still reluctant to do so, simply out of a desire not to “spoil everyone’s fun”. If I feel this way, what is the likelihood that the men and women working at the lowest positions feel completely unable to express their discomfort? Even if they are joining in the “banter” they may be doing so out of what they believe to be necessity. I feel now that it is ethically unfair to place the onus on them. No, I think the boss needs to be responsible. As an employer, I need to take responsibility for fostering a work environment that is free, as much as possible, of the sort of sexual talk or innuendo that may not only make feel people uncomfortable, but worse, obligated to participate.
The other thing I think I’ve never paid particular attention to is what exactly we mean by “workplace” when we talk about “sexual harassment in the workplace”. Obviously, things that occur at our physical place of work count. Meetings to conduct business, travelling in a vehicle with other staff for work, these are easy cases, few would act as if they are not “in the workplace” when they are actively engaging something “for work”. But the line begins to blur astonishingly quickly – the television and movie trope about the “office Christmas party” is a trope for a reason (there may be a chicken and egg debate to be had here, but nevertheless) and all sorts of behavior that would clearly be inappropriate at work seems to be treated, again, as all in good fun. Drinks after work may seem like an innocent invitation but may be opening the door for more intimate advances. At what point can someone safely say “we are no longer in the workplace” so these standards don’t apply?
I think the summary of the law we’ve been looking at actually provides a pretty good answer to this. Nowhere is “in the workplace” mentioned as a key element. Conduct that “detrimentally affects the work environment or leads to adverse job- related consequences” may be harassment, no matter where that conduct takes place. To my mind, this applies at the office Christmas party, the pub after work, and even in your own home, if you’ve invited your co-workers there. If your relationship with another person is through the workplace, you must be mindful of your conduct with that person where ever you are. This position seems to be supported by our current culture, as failure to be mindful of it is definitely coming back to haunt some of the famous people facing allegations of sexual harassment now.
From the male perspective, I think another lesson is sinking in as well. Of the famous Hollywood cases hitting the news right now, I think Louis CK’s case has been the most interesting and eye opening. The reason for this is that so much of what is alleged (and acknowledged by the man himself) occurred within a grey area where one legitimate take might be that what he did was consensual and therefore should not be the subject of censure after the fact.
On Monday, Jess wrote on this blog
“Consider Louis CK. The fact that he asked the women if he could masturbate in front of them doesn’t seem to factor at all into his public opinion of his misconduct which lumps him in with the rest of the recent – much more severe – Hollywood predators. But if true, it makes all the difference. It’s what separates a sick predator from a sad pervert. It’s what gives the women the choice, the power. And if a woman says yes to that because she feels she has to, she is not using her power responsibly.”
This feels in some ways intuitively just. I can’t help but agree, what Louis CK did does not seem like it should be in the same category as Harvey Weinstein, who clearly took deliberate advantage of people. And as a male, I’m immediately attracted to the idea that these things must be about consent and that is someone reasonably believes they have consent, they must not be accused after the fact of having done something unethical. However, it was actually Louis CK’s apology that made me think more deeply about that issue. This statement resonated deeply with me:
“These stories are true. At the time, I said to myself that what I did was okay because I never showed a woman my dick without asking first, which is also true. But what I learned later in life, too late, is that when you have power over another person, asking them to look at your dick isn’t a question. It’s a predicament for them. The power I had over these women is that they admired me. And I wielded that power irresponsibly.”
I think Louis has identified the key issue about consent in the context of “the workplace”. A person cannot seek consent to sexual talk, touching, behavior or innuendo with a co-worker as if that work relationship does not exist. One has to consider before posing that question whether their respective working positions are such that the question will really be a “predicament.” Can they simply decide as a freely choosing adult to say yes or no, or will they have to consider the ugly possibility that their job could be affected by the answer (without any way of knowing, of course, what your intentions may be in that regard). Louis CK may end up becoming somewhat of a victim of history, having to acknowledge after the fact that he should have known better. But moving forward I think he has to be the last person who should receive some level of sympathy in this situation. Moving forward we all need to learn from his example and accept that in 2017, we must treat everywhere we are interacting with co-workers as “the workplace” and we must be mindful that in relationships where one person holds power over another in a working relationship, we cannot assume that “consent” is freely given.