Don’t Let 2018 Be Business As Usual: How To Fight Discrimination & Harassment At Work

I think about sexual discrimination and harassment a lot. As an attorney handling cases involving discrimination and harassment, I don’t have much of a choice. I see these cases day after day, often living them moment by moment with the women I represent, and through that experience, I have learned some things I believe to be worth sharing.

I have the great, good fortune to be a partner at a firm where there is gender parity, but I am well aware that the vast majority of working women not only face a glass ceiling, but are cut and undercut by multiple shards of glass before they even approach the top. One thing we see over and over again is women who, by any objective measure, are top producers and business generators routinely being overlooked for raises, promotions and bonuses. Instead of being rewarded for their work and loyalty to their companies, they are excluded from golf outings and not invited to important client meetings. There are many examples of companies where the preference has been to protect and promote unqualified men rather than make any effort to retain women who out-perform them.

In a recent article for Harvard Business Review, Stefanie Johnson and Kimberly Davis share how some CEOs have successfully gender-balanced their boards and what they’ve learned and gained in the process. Spoiler alert: Adding women to top level positions increases productivity and leads to better financial performance. If these findings are correct, why aren’t companies racing to promote women to run their companies and boards? The answer has nothing to do with the capabilities of women.

Being discriminated against at work is pretty terrible. But when you add harassment and assault into the mix, the workplace can become truly unbearable. We have represented women who have faced years of harassment as well as women who have been subject to unwanted physical contact.

Take a minute and think about how important your job is to you. What would you do if every day you came to work, you had to fear that you would run into that guy who touched you in the elevator? Or that he would be angry that you rejected his advances? Or that if you report his advances, you will face retaliation? And what if you heard through the grapevine that HR is not your friend? (And you have heard correctly – HR is a division of the company and its role is to protect the company.) So, what do you do?

This may be the time to consult an attorney, and I think it is important to demystify that process. Many people have never worked with an attorney, and there are common misapprehensions about what seeking legal assistance means. You may be able to engage an attorney for an initial consult, which may be what you need to a) see if you in fact have a viable claim, and b) get advice on how to conduct yourself with HR and others at work while you are figuring out what to do. The cost for an initial consult can vary widely. If you're looking for an attorney, ask around and try to get a referral for one in your state. Then, call and ask what their hourly rate would be for a consult.

Many times in our practice we simply provide advice to individuals behind the scenes and coach people through navigating difficult work situations. In this way, an attorney may be able to help resolve the matter without ever alerting the employer that the employee is working with counsel. If that approach doesn’t work, or if an employee has already tried to resolve a situation on her own and wants to have an attorney act on her behalf, an attorney can try to negotiate a resolution directly with the employer. Finally, if a negotiated solution cannot be achieved, a legal proceeding against the employer can be considered. Even if you are not ready to engage an attorney, if something is happening to you at work, document your experiences and keep records of everything on your personal computer, screenshot text messages and print emails.

Our firm has worked on dozens of discrimination and harassment cases on behalf of both women and men. We also assist companies facing challenging employment related issues. One thing that’s become abundantly clear through our work on all these cases: It's impossible to separate what happens in the workplace from what happens in every other sphere of life. If we keep seeing images that objectify women and show them doing the cooking and cleaning, the message that women should stay at home and look like models is constantly being reinforced. I find it almost impossible to buy anything for my three-year-old niece that is not pink or princess themed. It’s all connected — what we see and absorb all around us is what inevitably leads to inequity and harassment at work.

Women and men don’t show up at the workplace as blank slates. By the time most of us enter the workforce, we’ve had more than two decades of socialization by a sexist society, which by the way, is damaging to both men and women. The micro-aggressions and discrimination against women start at such a young age that they have hardened into habit and ironclad assumptions once we start working.

These are the cycles that need to be broken, but won’t be unless we make the intentional decision to break them. Women can and should lean all the way in, but over-performing, giving your all, and speaking out may be no match for attitudes that are firmly set against the idea of women succeeding from the start. Many of the cases we handle at our firm involve women who far outshine the men they work for but who are overlooked, undercut and minimized. We cannot blame women when those who hold the power are not interested in relinquishing it and perhaps feel entitled to hoard it for themselves.

Progress continues but change is historically slow. So what can women do today and how can they find companies where they can truly succeed and realize their full potential? Here are a couple of suggestions:

Does the company you are looking to work for have a beautifully written diversity statement but no women executives who hold actual power? It is very common for the head of human resources to be female, and oftentimes that will be the only senior executive position held by a woman at the company. Don’t be fooled by this — seeing one woman’s face in a sea of men on a website is probably not a good sign if you are looking for a workplace that is truly understanding of and committed to diversity.

Along those lines, sensitivity and bias training is something companies do to protect themselves and make it appear as if they are proactively addressing issues of discrimination and harassment. Has anyone ever tested the success of these programs? What is their actual value in terms of curbing or stopping workplace discrimination and harassment?

Look for employers that have taken real action in hiring and promoting women. The rest is just smoke and mirrors.

If you are in a position of power, look out for women around you, particularly women of color and others who may not be in a position to speak up. Fostering safer work environments includes lending support to people who might be suffering. Recruit men to help you interrupt men who interrupt women. Consider a blind application process when hiring. Samantha Bee did it and ended up with a gender balanced staff (and also 30% nonwhite). If you see something, say something — even if it is just to let someone know that they are supported and not alone.

It’s not just men who maintain bias against women, unconscious or otherwise. Women are obviously also exposed to the insidious messaging of what a woman should and shouldn’t do and be almost from birth. Examine your own prejudices, and don’t take the bait. After a lifetime of exposure to societal conditioning that tells us that men hold the power, when you start questioning your own inherent prejudices, you may find yourself unconsciously biased against women in power. Think about it — when you hear that a person is a judge or an elected official, does your brain immediately conjure up “he”?

This plays out in the area of sexual harassment and sexual assault as well. If you are thinking about an assault — let’s say a person getting punched in the face — no one asks what the victim of the punch was wearing, or if she was flirtatious before being punched. But with the addition of the word “sexual,” the context becomes different; the focus shifts to sex and then to issues of consent and “asking for it.” The truth is that sexual harassment and sexual assault have nothing to do with sex and everything to do with abuse of power. Once that is understood, it will go a long way towards helping us all look at this issue differently and hopefully disrupt what we’ve come to experience as business as usual.