#MeToo? Sure, but not all sexual harassment is alike, and not all workplaces are like Hollywood

I would have guessed 100 percent.

The definition of sexual harassment is deliberately vague, and it encompasses a vast range of behavior, from an off-color joke or blockheaded “compliment” all the way to felonious conduct punishable by many years in prison, including sexual assaults or rapes.

I have been sexually harassed — using this broad definition — during my many years in the work force, and you probably have, too.

I never considered any behavior directed at me to be serious enough to take to Human Resources. In my case, it was all low-level stuff, and more stupid than trauma-inducing.

The WSJ/NBC poll doesn’t necessarily mean that Harvey Weinstein-style sexual harassment is rampant outside certain segments of high-profile industries. In Hollywood, everyone is beautiful, creative, and very ambitious, and they all run around with no clothes on, simulating wild, passionate sex on HBO. (Kidding, but you get my point.) I don’t say this to defend Mr. Weinstein or any of the others, but when there are fewer boundaries, there are bound to be more problems.

In the regular world of rules, ordinary people, and clothes, sexual harassment does of course still occur, but the temptations and opportunity are more under control. Some of that is probably a result of middle-class values. But, also, employers in the regular world generally take sexual harassment very seriously. They usually have no-harassment policies and conduct training for supervisors and managers, and sometimes even for employees. They also employ Human Resources professionals who understand the legal implications and the importance of prevention. As I said a couple of weeks ago about the Weinstein accusations,

If a middle manager — or even a vice president — were inviting female subordinates to his hotel room, asking for sexual favors, and exposing himself, he’d be fired so fast your head would swim, and rightfully so.

So, employers and employees, don’t panic. I doubt that we are suffering from a new sexual harassment epidemic. Employers may see an increase in harassment complaints because of increased awareness. But if you have a good, plain-language policy, training, and an effective complaint and investigation mechanism, you should be able to weather the storm. 

One other thing — as I said in my older blog post, I believe that many of the allegations coming out of Hollywood are credible. But I’ve defended employers in a number of sexual harassment cases in which I had reason to believe that the alleged victim was either (1) exaggerating, or (2) flat-out lying.

In two lawsuits, the allegations were egregious. The plaintiffs, both female, said that the alleged harassers forced them to have sexual relations. Each plaintiff was ultimately caught lying – one on tape, and one through statements she had made to her friends about how she couldn’t wait to leave her husband and marry her “harasser.”

As it turned out, these plaintiffs had been having consensual affairs but then turned vindictive after the “harassers” decided to stay with their wives. The plaintiff who was caught on tape had been recorded by her husband, who suspected something was up.

The current attention to sexual harassment should not cause employers to dispense with conducting a fair, thorough, and even-handed investigation of sexual harassment allegations – an investigation that is as fair to the alleged harasser (who, after all, may be innocent) as it is to the alleged victim. And even if harassment is substantiated, not every act of workplace harassment is a termination offense. The bawdy joke, or the clumsy “compliment” that makes reasonable women cringe, may be corrected with a counseling and guidance about how to behave in the future, coupled with a low-level disciplinary warning.

(Regarding that last, lawyers gotta lawyer.)

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.