Sexual Harassment: What We Think We Know

By: Amy Epstein Gluck

In July, I wrote about (what I’ve labeled my WTF article) Gretchen Carlson’s sexual harassment lawsuit against Roger Ailes.

Things have moved quickly since then.

This past Friday, Circa interviewed me about various employment issues, including sexual harassment.  On a break from the interview, a young millennial male (I’m sure you’ve seen such species out in the wild – let’s call him “MM”) asked if he could talk to me about the Roger Ailes case, and I, of course, agreed.

Then this past weekend, a featured New York Times opinion piece by Bryce Covert raised the very issue I had in mind to write about as a follow-up to my earlier post and my conversation with MM:

Why don’t women report being sexually harassed?  Why would anyone put up with that?

Well, for most people, it’s not just a matter of finding a new job or career or, as Mr. Trump said, “allowing [one]self to be subjected to that.”  Women don’t allow themselves to be sexually harassed.  They endure it.  Often for the sake of their careers.

Nervous blonde businesswoman shrinks from businessman's hand

I told my new young friend, MM, that, as Ivanka Trump explained (contrary to her father’s reports as to how she would react to being sexually harassed), and as the NYT piece discusses, a person’s response to sexual harassment is influenced by a lot of fears:  fear of retaliation for reporting the harassment; fear of not being seen as a team player; fear of being viewed as a complainer; or fear of being demoted or fired.

Indeed, reporting sexual harassment often has long-lasting ramifications for the victim.  Just ask Anita Hill.

And Ivanka agrees.

As Mr. Covert wrote, “Ivanka Trump described experiencing sexual harassment ‘many times’ at her father’s construction sites as a child and the ‘no-win’ situation of being spoken to inappropriately in front of a boss.”

Sexual harassment is not just inappropriate touching, but harassment, humiliation, bullying or intimidation because of a person’s sex.  As defined by the EEOC, sexual harassment can include “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature, as well as offensive remarks about a person’s sex.”

Improper conduct for the office

When does it become illegal?

Harassment violates the law—Title VII of the Civil Rights Act of 1964 (and similar state and local laws) when it is so frequent or so severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted for rebuffing sexual advances – known as quid pro quo harassment).

And it’s everywhere: neither “an anachronism or even an outlier.”

Our businesses and economy are rife with hotbeds of sexual harassment.  As Mr. Covert astutely articulated, Fox News is, in many ways, a typical workplace.

What Donald Trump and MM don’t realize is that most women do not have the luxury of just switching careers to extricate themselves from a “handsy” colleague or one who insinuates that her advancement is contingent upon sexual favors or a male culture of bravado that excludes women from opportunities for advancement (see Sam Polk’s excellent article about Bro Talk, which I wrote about here).

Mr. Covert explained that when asked if they have “experienced unwanted sexual attention or coercion at work, 40 percent of women said yes.  It’s basically as common as allergies or landline telephones.”


Sexual harassment statistics exceed sexual assault on campus statistics by a mile.

What’s a well-meaning CEO to do?


  1. Cut the snake off at its head!   Or, as my partner Richard said here, “along with proper training, [have] a top-down culture of zero tolerance…to keep[] the workplace free from sexual harassment.”  If an employee knows her claims will be taken seriously and investigated promptly and professionally, she is more likely to report any perceived sexual harassment or discrimination, and you can avoid a Charge of Discrimination filed with the EEOC.
  2. Have a strong anti-sexual harassment policy and investigation procedure set forth in your employee manuals and handbooks and follow your policy.
  3. Here’s one that I haven’t given you before: have a strong anti-retaliation policy in your workplace. Clarify for your employees in black and white that if an employee reports sexual harassment or discrimination, she will not suffer retaliation. This encourages reporting, beneficial for your company’s workplace morale, attrition levels, and reputation.
  4. Document, document, and document some more any employee’s claim of sexual harassment or sex discrimination, as well as the steps you will take to prevent, investigate and remediate it.
  5. Be a role model for the kind of environment you know you should have and invest in sexual harassment training on every level.

Not only will you be more likely to avoid the time and expense of a discrimination action, but “what we think we know” about sexual harassment and retaliation may become a conversation about “how we prevent” sexual harassment.

By: Amy Epstein Gluck





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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]