Federal Employees News Digest
Sexual harassment: Expert weighs Federal #MeToo report and prospects for change
- By Nathan Abse
- Jun 15, 2020
Sexual harassment claims gained legal footing in the U.S. with three Supreme Court cases in the 1980s that clarified to a limited degree that employers are liable for the sexually harassing behavior of supervisors. To avoid that liability, employers must exercise “reasonable care” to prevent and correct such problems in the workplace.
By creating a basis for civil actions, and later better defining that basis, the Court spurred the reduction of such abusive practices in the American workplace. Since then, courts have dealt mainly with two major complaints—sexual harassment that creates a “hostile workplace” as well as “quid pro quo” demands placed on employees. Though many cases have been heard, even decades later, the field remains complex and poorly understood by employers and employees alike, according to experts.
For federal employees, a new U.S. Commission on Civil Rights report, entitled “Federal #MeToo—Examining Sexual Harassment in Government Workplaces,” bears witness to the endurance of both the problem and the lack of understanding on the issue. This week, Nathan Abse discusses the report and workplace sexual harassment in general with Dr. Barbara Ziv, a forensic psychiatrist and expert on sexual harassment and sexual assault who has testified in a number of major cases, including those against now-convicted sex offender Harvey Weinstein.
This interview was edited for length and clarity.
Q&A with Dr. Barbara Ziv
The new U.S. Commission on Civil Rights report cites a 2018 Merit Systems Protection Board survey that estimated one in seven federal employees experienced sexually harassing behaviors at work between 2016 and 2018. Are you concerned, and is the actual number worse?
Ziv: Yes, it’s a concern. And, yes, I think it’s probably higher than that, but there might be other problems here. When I look at who was on the report’s panel, I didn’t see one clinician on it. There’s not one person with experience in sexual harassment or sexual assault, which is related.
Point taken. Do you have other qualms about the report?
Ziv: In the bullet-point recommendations, one is literally that if someone is a serial or serious sexual harasser, the panel recommends “not promoting” such a person, or something like that. [Note: the report's exact wording is, “Banning serious perpetrators from receiving promotions and performance awards.”] Hello? That seems behind where we are now. How about firing them? It’s ridiculous.
The report acknowledges that sexual harassment demoralizes employees. Since women suffer it most, does it contributes to the much-publicized gender “pay gap”?
Ziv: Absolutely, and there is a lot of research to support that.
Many workplaces simply are weak on enforcement, but also the transgression itself is poorly defined, right?
Ziv: Yes—about definitions [of sexual harassment], the authors rely upon standards and documentation that are consistent with everything we know about sexual harassment and sexual assault. But the definition of sexual harassment is fluid—you see? We don’t have a single concept of what constitutes sexual harassment, we have many. I think this issue should be viewed now in the same light as we are looking more deeply at “institutional and pervasive” racism. I think we need to be talking also about institutional and pervasive sexism and pervasive tolerance of misbehavior, of sexual harassment.
Why is it important to change direction, as a society and workplace managers, on this issue?
Ziv: Because, as of now, addressing sexual harassment is still a kind of “carve-out,” a siloed act, and that’s missing the point. We have to go beyond this. The problem won’t be addressed or deeply improved until we change the culture of the workforce and make this kind of behavior unacceptable—unacceptable for individuals, male or female, to comment on other people’s bodies, male or female. Until we start to accomplish this, we won’t really address the issue of sexual harassment.
Then, where are we on this issue—as a culture or as a nation of workplaces?
Ziv: We are in a situation where we are armed mostly with watered-down statements, statements that say we need proper “policies and procedures” on sexual harassment at work and so on. But you have to ask, who is going to really follow—and be made to follow—these? One of the things I do in my work—and I’ve done this in various cases, for instance in the Harvey Weinstein and Bill Cosby cases and less famous ones—is to look into jury pools with respect to rape and sexual assault and sexual harassment. What I see is that we, as a society, still somehow believe we can have an informed discussion about sexual harassment, very often, without having any real experts on sexual harassment at the table.
Can you offer examples of institutions that are lacking and what they lack, to handle this issue?
Ziv: We have major institutions—take the federal government—that think they can adjudicate, or even start to analyze and understand, sexual harassment just because they have an “ombudsman.” But you need to ask: What is the training of this ombudsman? And when you read about the process people go through to pursue their cases, how cases actually have to be filed and pressed by employees—it is burdensome, it is ridiculous. There is currently nothing in place or on the way that I see to remedy this.
So, the legal and administrative avenues for federal employees on this are deeply flawed—anything else?
Ziv: Again, I think the portion of employees affected directly by sexual harassment is higher than perceived. Why do I say this? Because the average person in 2020 is not even clear on what constitutes “sexual assault” or “sexual harassment.” That is, many people still think it’s questionable. They ask, “Can you even be assaulted by someone who knows you?” That’s still not clear to many people—even among those who clearly have been themselves assaulted! If we don’t have some agreed on way of knowing the bare minimum about sexual assault—and we do not, as a society—we definitely don’t have an understanding of what constitutes sexual harassment. At least as telling: We are still trying rape cases, based on what happens after a rape between those involved—as if consent can occur and be demonstrated after the fact. No. We just don’t have a good understanding on any of these matters.
Why is that? Why do we still suffer little agreed-upon understanding of sexual assault—or sexual harassment—despite Supreme Court protection being clear on this?
Ziv: The answer to both starts with widespread and pervasive sexism. That’s it. Right now, we’re dealing with racism, as it really is, writ large in our society—and I think that’s appropriate. We need to do the same with sexism.
Unfortunately, I have to say the “#MeToo” movement hasn’t really furthered that conversation very much, beyond least it alerting people to the basic facts that sexual harassment (and worse) is more common than some people were thinking. But #MeToo just hasn’t deepened the conversation, or really changed the conversation, much, in my opinion.
Now, the [U.S. Commission on Civil Rights] report says that when women enter the workforce in proportion [to the population], the problem [of harassment] essentially disappears. I don’t think that’s true—or at least it’s not clearly demonstrated. It’s true that in societies and subcultures that are more male-dominated, sexual harassment is much more prominent. But, does that really go away as you equalize the numbers of women? I don’t think you can yet say that’s true.
OK, then why doesn’t mixing in more women—along with real effort to raise awareness and stop these behaviors—do more to slash sexual harassment?
Ziv: I think it’s that people don’t want their behaviors regulated. In fact, they go to bizarre stretches—overreactions, sometimes—in reaction to efforts to change and regulate their behaviors. They’ll respond with, “Now, I can’t say anything to anybody” or “I can’t give anyone any kind of compliment.” This just isn’t true. If you simply treat your colleagues in the same manner [you would want to be treated], you won’t have any sexual harassment. When you compliment a colleague without any sexual aspect, then you don’t compliment their appearance, right? You compliment them in other ways. So this whole claim that in order to avoid sexual harassment, you “can’t say anything” just isn’t true. You just have to keep trying.
But isn’t another problem the direction of our culture? Hasn’t it become even more “sexualized” in the decades since the Supreme Court defined sexual harassment as grounds for complaint?
Ziv: Whether that’s the problem, that’s not easy to say. I do think there is a lot more sexualization in society—and beginning at much younger ages. But there have been some interesting and [paradoxical] consequences to that, by the way. Younger generations are having less sex than older generations, broadly speaking. I think that’s partly because of the mass marketing of sex, specifically that many activities represented as common and normal sexual behavior on the internet—are not normal or very common sexual behavior. I think all these disconnects have changed things.
We have longstanding cultural and religious traditions in play as well—how do you fight religious beliefs, some of which might get in the way of sexual harassment awareness?
Ziv: There are so many contradictions in cultural and religious traditions. How do you combat such things with respect to sexual harassment? I don’t know. These are societal problems. The main thing I would say is that misogyny is everywhere, in every culture. But, meanwhile, we understand too that sexual harassment can go both ways—women are much more likely to be sexually harassed in the workplace than men are. But do not dismiss that men are also harassed.
So, one problem is cultures are slow to change, but another is we suffer a lack of applied expertise to help change along?
Ziv: Yes. This is what I do for a living. And I have to say that in the workplace, and in schools and in the criminal court system, [sexual harassment and sexual assault] issues are investigated—quite often—by people who do not have the requisite training and experience to do a fair job.
And everyone should want a fair job done. It benefits all sides. It’s what you find in any profession. In journalism, you need someone who knows enough to be able to arrive at the truth as to whether something really happened. Does the person reporting and writing have enough experience to find out and communicate whether something really happened? If they don’t, you’ll get the wrong answer. It’s a similar problem when you have unqualified people on these cases.
What can an employee or manager do, at least to help mitigate this broad problem? Training?
Ziv: Some kinds of training, yes, are helpful. But I think also there needs to be more transparency in the workplace. Why? Because we know there are a lot of women—a lot of people—who have been sexually harassed but don’t come forward. Even where there’s a retaliation clause or protection on paper, people end up suffering various kinds of “soft retaliation.”
For instance, others at work stop communicating with them, or work on making them unhappy in the workplace. Is there always something you can hang your hat on? No, not really. But all of this soft retaliation is often overlooked by people studying this—yet in my experience, it is a much more common outcome than getting fired, as a result of a person bringing a complaint. Interpersonal things, lost promotions, things that are harder to pin down. But they are very real.