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The Law and You: Where's the line? Sexual harassment in the workplace.

"In my mind, I have never crossed the line with anyone," Mr. Cuomo said. "But I didn't realize the extent to which the line has been redrawn." If the line shifted, it was decades ago. Sexual harassment has been a recognized legal concept since at least the late 1970's. Trainings on the topic and complaint procedures have been widespread for many years.The Law and You: Where's the line? Sexual harassment in the workplace.

The principle that everyone is entitled to a safe, non-toxic work environment has been part of U.S. and New York law for decades. This is not brand new; it didn't sneak up on us. The protections are not limited to sexual behavior, but also protect employees against bullying, racist actions, and other harassment based on "race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information."

At its core, sexual harassment is "unwelcome behavior of a sexual nature." This could be outright requests or demands for sex, or it might be other verbal, visual, or physical conduct of a sexual nature. When unwelcome sexual conduct "unreasonably interferes with a person's job performance or creates an intimidating, hostile or offensive work environment," it is definitely illegal.

Sometimes sexual comments, jokes, and intimate questions are minimized by calling them "banter," or the like. But it does not matter that the person doing it says it was "just a joke." What did the person subject to it think? Did they welcome it, think it was fine, or did it bother them and feel offensive?

When a complaint is made, all the circumstances must be considered. For example, when the harasser is a supervisor or in any position of more power than the victim, it can be extremely difficult to disagree. When they are in unequal power positions, the person subjected to the sexual "banter," intrusive personal questions, or touching by their boss has a very reasonable fear about complaining.

Who will be believed? What will happen next? Will I lose my job or be punished some other way? The concerns of not being believed and of being retaliated against are real.

Consequently, a relatively small proportion of sexual harassment incidents are formally reported. Usually, the victim of these behaviors just wants them to stop. If you think that reporting them will not accomplish this, and may even cause more problems for you, you keep quiet.

Some talk like there is a generational shift in what is acceptable to women. But, men behaving badly and women enduring it is not new. Of course, this is not all men. Also, it is not only men who can be abusive. The generations of women before those now in their 20's and 30's did not welcome this behavior, either.

When their bosses expected, or even insisted on, sexual contact, they had nowhere to turn for help. For the most part, there was nothing they could do about it, except leave. But the reality that nothing could be done was not the same as it being welcome or "appropriate." Not being able to stop it only added to the humiliation and fear.

What really changed in the last generation? The laws. Sexually offensive conduct now is spelled out and carries legal labels. Touching the sexual or intimate parts of another person without consent, to gratify your sexual desire, is the crime of "sexual abuse." Making unwelcome and inappropriate sexual remarks or physical advances is unlawful "sexual harassment." When this behavior is intolerable and pervasive, it creates an intimidating and hostile work place.The Law and You: Where's the line? Sexual harassment in the workplace.

Now, this conduct is named and prohibited, at least on paper in policies and rules. There are places to file a grievance or complaint at the workplace, with the union, and at government agencies. Workplace cultures need to change, though, for those resources to be real remedies, and to reduce sexual harassment in the first place.

Studies show that "bystander-intervention" training and having an "ombuds office" can be meaningful ways to expose and stop sexual harassment.

For employers, it is better to know about problems, so they can be effectively addressed. For employees who really do not know that their words or actions are unwelcome, learning that should mean they are not repeated.

Penny Clute was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.

RESOURCES

What is Sexual Harassment? https://www.un.org/womenwatch/osagi/pdf/whatissh.pdf

Sexual Harassment - https://www.rainn.org/articles/sexual-harassment

Equal Rights Advocates-Sexual Harassment in the Workplace - https://www.equalrights.org/issue/economic-workplace-equality/sexual-harassment/

Sexual Harassment definitions - Equal Opportunity Commission - https://www.eeoc.gov/sexual-harassment

Better Sexual Harassment programs - https://hbr.org/2020/05/why-sexual-harassment-programs-backfire