By Howard Levitt and Muneeza Sheikh
Judges view concept of consent in office relationships through a very skeptical lens
Consent in relationships has been hashed and rehashed through hundreds of decisions in the last few years. But when it comes to cases involving sexual relationships that start in the office, it’s clear that judges look at the concept of consent with a shrewd and highly skeptical lens. That’s because power imbalances are often an inescapable element of workplace harassment cases.
The cases involving film producer Harvey Weinstein exhibited many of the traits of work-related sexual harassment. The sexual acts he forced upon women were an abhorrent abuse of the power he held over those who wanted to work with him or wanted his help to move ahead in their careers. While his victims argued lack of consent in their exchanges with him, some also had to explain why they stayed in touch with him after they were abused — a process many said was excruciating.
When we represent women (and men) who have been harassed or assaulted in the workplace, they balk when we tell them that — yes, they do have to explain that they did not consent to a “situationship” or relationship at work. In some cases, those relationships lasted for a very long time. If the case goes to trial, workplace victims must explain the context behind friendly (sometimes flirtatious) text banter, continued outings and workplace socializing after they say they were harassed.
Those are difficult conversations for those employees. Even preparing for the earliest of steps in a case, they need to explain why they meant “no“ when they actually said “yes.” As lawyers, we try and mediate our cases before the need for trial. It is about giving each party the opportunity to catch a glimpse of the inner workings of the case, and to determine whether they want to settle.
When looking at our sexual harassment/assault cases, we sit with the complainants and ask the hard questions around consent. We often go through stacks of materials including texts, emails, and in some cases, illicit photos. Why continue to communicate after you say you were harassed/assaulted? Why continue to date? Why are you sending the photos of this nature? These are just some of the hard questions we ask.
In doing this work (years before #metoo) we have learned a few things. Here are some of them.
- It is almost always about power. Power equals fear, and with fear at work comes fear of reprisal. Almost all of our clients have told us with unwavering clarity that they genuinely believed that they would be fired or disciplined if they said anything. In some cases that is what happened. When one woman complained of being dragged into a bathroom by her boss and another colleague at a sporting event (she was drunk and they both tried to take advantage of her), Human Resources spoke to her about unprofessionalism at work. She was reprimanded for forcing her colleagues to call an Uber to take her home. Her complaint was never dealt with, and she was written up. She resigned a few months later after dealing with severe depression.
- Women and/or subordinate employees in general (but yes it is still disproportionately women) are conditioned to question their own actions first before they are willing to accept that the attack against them was unprovoked. One client (a physician) complained consistently of her male attendees telling her “she was too pretty,” and convinced herself that she put too much care into her appearance. She dealt with harassment by those who supervised her for years before she complained to the hospital. Her complaint was routed back to her perpetrator for resolution. Years later, we are still in litigation, and the same men accused of harassing her are directing the lawyers on the other side. She was in fear of losing her job, and unfortunately, they did far worse.
- The judges and/or adjudicators who are hearing these cases are trying to understand the nuances around consent in the workplace, and how consent can be eroded when the perpetrator has all of the power to make, break, or ruin the victim’s professional career. Our judges understand that systemic abusers reside in workplaces along with their enablers. Since 2017, there has been an active push to ensure that judges (including those newly appointed) undertake education around sexual assault and harassment.
Despite not being directly related to a workplace, these sentences mean everything. As employment lawyers, the takeaway for us and our clients is significant. We all need to play a role in trying to remedy a culture in which assault and harassment against women (and some men) exists. In our respective practices, we try and do that every day. We can only hope that the public humiliation of these sentences acts as a deterrent for those who seek to abuse at work. We also hope the tales of those who come forward will help our clients reclaim their identity as sovereign beings at work.
It is worth noting that there is much more control in every respect in the civil process when suing for harassment or assault than there is in the criminal process where the accused have comparatively vast protections.