Sexual Harassment and the Law

In the wake of alleged sexual harassment by Harvey Weinstein, with accusations dating back decades, the #metoo campaign has taken off and thousands of mostly women have come forward to share their personal experiences on social media. In the interview that follows, gender discrimination expert Professor Deborah Rhode discusses the law and sexual harassment.

What is the legal definition of sexual harassment and how does the law distinguish between workplace flirting/romance and harassment?

Deborah L. Rhode 3
Stanford Law School Professor Deborah Rhode

Federal and most state civil rights laws prohibit two forms of sexual harassment. The first is quid pro quo, which includes unwelcome sexual advances and requests for sexual favors. The second form is hostile environment harassment, which has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.

When does it become criminal?

Conduct becomes criminal when it involves a physical sexual assault or stalking behavior.

What rights do we have in the workplace?

Individuals who experience sexual harassment can complain internally or complain to the U.S. Equal Employment Opportunity Commission (EEOC) or state agency. If administrative remedies fail, they can file a lawsuit. Individuals can also use social media, as an engineer at Uber recently did. Her account went viral and forced a major investigation and resignations.  See my discussion in a recent article with Joanna Grossman on what individuals can do in the Harvard Business Review.

Women who have complained about sexual harassment are at times pushed out of jobs, paid off, and made to sign nondisclosure agreements, which often prevents them from discussing the harassment, and the perpetrator is left to harass again. Why is that legal?

The law has long encouraged individuals to settle claims because it is less costly, both psychologically and financially, than litigating them. In many sex harassment lawsuits, the victim as well as the perpetrator is on trial, and the details that come out may cause complainants to be blacklisted.  Yet defendants are typically unwilling to settle without a nondisclosure agreement that will protect their reputation and keep other potential complainants from seeing a pattern and practice. Many experts, myself included, believe that the law should do more to restrict the use of secrecy agreements in these settings.

What more can the law do to prevent sexual harassment?

The law needs to hold individuals and employers accountable, as well as establishing effective training programs and informal complaint processes. Organizations need to do more to monitor the effectiveness of their policies through anonymous qualitative surveys and focus groups that can expose problematic workplace behaviors and cultures.

Deborah L. Rhode is the Ernest W. McFarland Professor of Law, the director of the Center on the Legal Profession, and the director of the Program in Law and Social Entrepreneurship at Stanford University. The most frequently cited scholar on legal ethics, she is the author most recently of  Women and Leadership, Adultery, The Trouble With Lawyers, What Women Want, and The Beauty Bias.