Now THIS Is Ethics Zugzwang! The Unfixable Catch-22 Of Sexual Harassment Law

A recent question to the New York Times workplace column “The Workologist” perfectly illustrates a permanent flaw in sexual harassment law. Believe it or not, I have no recommendation regarding how to fix it. I don’t think it can be fixed.

Here was the question:

I work at a blue-collar job, and I am one of four women in a crew of 40. The guys never touch or harass me, or any of the women, as far as I know.They do, however, constantly hug and grab and bump each other in a friendly way. It’s not unusual for one of the guys to go through a whole short meeting (a stand-up “huddle”) with an arm around another guy’s shoulder. No one ever touches me, and it’s not that I want them to. That would be weird. But I almost feel left out. Should I let this “bro contact” bother me?

I love it. Perfect. This is what using the law to dictate ethics can result in, and does result in frequently: hypocrisy, confusion, and a double-bind.

Let’s begin with the last sentence: “Should I let this “bro contact” bother me?” The whole point of “hostile work environment” sexual harassment law is to make sure no woman has to ask this question. A boss who responds to a female employee’s complaint of a hostile work environment-creating unwanted sexual attention in the office with “Don’t let it bother you!” has breached his or her duty under the law.

So what’s going on here? The men in the company have adopted the current fad (Yechhh.) of hugging each other to express a range of things—support, congratulation, sympathy, platonic affection—and quite properly do not hug the few women in their midst, lest one of the females, reasonably or not (or perhaps intentionally, to grab some power or cash) be made “uncomfortable,” take the physical contact as unwanted and sexual in intent, complain, and perhaps sue. By not hugging them, however, the men isolate the women, exclude them from the social fabric of the “team,” and, in essence, discriminate against them by signalling that they are “the other,” thus creating a hostile work environment.

Even if some of the women announced their consent to be treated as “one of the guys,” it would not solve the dilemma. One of those bro-hugs could still turn into a copped feel, or be perceived as crossing lines by the female huggee. Then there is the looming  third party harassment problem: a woman who has not consented to being hugged might see her female colleagues being man-handled (but completely innocently, of course) and assume that consenting to unwanted physical contact was a condition of employment, or that they would be adversely affected if they did not agree to participate enthusiastically in the hug-fest. Not treating the women in the company like the men is discrimination; treating them the same is an open invitation to a sexual harassment lawsuit.

Ah! Why not ban hugging all around? This would be no problem for me: I would rather put my head in a shredder than hug or be hugged by male, female or beast in the workplace—I am from Boston, after all, not LA. The men who bonded in their workplace however would know why their Right to Bro Hugs was being taken away: it was the women, damn them. Enter resentment. Enter expressions of that resentment. Enter discrimination, or a hostile work environment.

The Worklogist, Rob Walker, ducked the question. (Is it unethical for an advice columnist to publish a question that he can’y answer honestly or competently?) The crux of his evasive answer:

The good news is that it doesn’t seem as if your colleagues are trying to exclude you. In fact, they seem to be behaving respectfully, and they probably don’t suspect their “bro contact” might be bothersome, and almost certainly don’t intend it to be.

Think about whether it might help to look for other ways to feel comfortably included. Since you’ve described a sociable workplace, consider conversational or topical gambits: joking, shared hobbies or interests, talk of sports or family or whatever feels right. Don’t consider this an obligation, but rather an approach that might make your days more enjoyable.

Any worker should be tuned into the office culture, and if some element of that culture interferes with her job, she should talk to a manager. But if that’s not the case right now, it’s better to focus on connection and inclusion.


  • Intent has nothing to do with whether a workplace is found to be discriminatory, nor does a male worker have to intend to make a  female colleague uncomfortable with gender-based contact to be guilty of sexual harassment.
  • A woman who is being deliberately left out of rituals and routines that bond the rest of the staff shouldn’t have to “look for other ways to feel comfortably included.” Imagine giving that advice to a black employee who no white colleagues will speak to, look in the eye or touch.
  • The question itself proves that the culture is interfering with her job.

If anyone sees a practical way to eliminate this Catch-22, I’d love to hear it. I think it is ethics zugzwang, or as Leo Bloom (of “The Producers”) would say, “No way out no way out no way out…”


20 thoughts on “Now THIS Is Ethics Zugzwang! The Unfixable Catch-22 Of Sexual Harassment Law

  1. Drastic solution, gender segregated workplaces. Less drastic, male colleagues tell the female colleagues that they will interact with them exclusively in a professional manner, to ensure there is no appearance of impropriety. It will be unfair, but by golly there will not be one iota of harassment, but you will be treated as a leper essentially. Don’t hate the player, hate the game. Not in the sense of a rationalization though, but in the sense, if you want bad rules to be overturned, enforce them strictly.

  2. This situation has always existed. Long before sexual harrasment laws were passed. Even before the EEOC came into being, female employees routinely excluded the men from their social circles in the workplace. They hugged, kissed each other on the cheek and offered all types of affection based on the group norm. Women tend to adopt group norm behavior faster then men. This is encouraged in grade school and could be a remnant of the past social structures in which women tended as a group to gathering and nurturing activities while men engaged in more solitary hunting and providing activities.

    Men understand that women do display physical affection among their cohort and it is not seen as a “come on”. Men do not see this as exclusionary. Behaviors must be viewed in context.

    If this feeling of exclusion is considered a potential hostile workplace Then, the question I ask is why is it not considered a hostile workplace when males must modify all behaviors that someone could make them uncomfortable. Men must constantly walk on eggshells to avoid litigation or career destruction.

  3. I submit that the correct answer is that this is a textbook “first-world problem,” and finding a way to personally deal with it is the right course of action, rather than complaining to any 3rd party.

    In any diverse culture, you are going to find yourself an outlier within a social or work group at some point. The only non-drinker, the only fat person, the only person of your ethnic background, religion or culture, the only married person, the only single person, the only one with or without kids, the one person who needs special accommodations for a disability, the only man, the only woman, the only old person, the only young person.

    ANY of those can be awkward and make it harder, even impossible to feel like you truly “belong” with the group, even in spite of everyone’s polite efforts to include you.

    I don’t know if that’s some sort of injustice to be fixed, it just seems more like a reality of life that any stable person should be able to navigate.

    You know who you generally don’t see whinging all over public forums about how they aren’t accepted and celebrated? Disfigured people, midgets, blind and deaf people, paraplegics, people with third-degree burns all over their body. You know, people who have legitimate reasons to feel like unlucky freaks and outcasts in just about any group. In my limited experience such people tend to face their genuine disadvantages admirably, and even turn them into strengths. I suspect that they learned quickly that the world just wasn’t going to make things easy for them, and there was nothing to do but adapt. It’s the perfectly healthy and able-bodied first-worlder who frets this much over the workplace dynamic not being quite calibrated to their comfort.

    I’m probably being a tad uncharitable to the woman who wrote the question; for all I know she might not really care one way or the other and emailed the Times out of boredom. But I think I agree with the spirit of the answer she received; it just needed further explanation. Perhaps:

    “Some problems are just the daily nuisances of living in a world that is not perfectly tailored to only you. And the best solution is an attitude change.”

    • Issac
      Obviously you live in the real world of human behavior rather than the hyped world of intolerance. Great post.

  4. “Men understand that women do display physical affection among their cohort and it is not seen as a “come on”. Men do not see this as exclusionary. Behaviors must be viewed in context.”

    I agree. Let her hug her 3 female co-workers (if she feels so left out) and then get to work. By her own account it sounds as if she is able to get from 9 to 5 (or whatever shift) without being threatened, harassed, or in any way impeded from doing her work. This sounds like a 9th grade lunch table issue.

    I don’t know. I have little patience for 1st world problems today.

    • This sounds like a 9th grade lunch table issue.

      Great line. I’d have to go with sixth, or seventh or eighth grade though, having graduated from a mixed grade school to an all boys high school after eighth grade. The only problems we had in our cafeteria were fist fights that would erupt before they could be taken outside scheduled off campus after school..

  5. Could this new fad be an outgrowth of similarly demonstrated behaviors of women in the workplace or could it be part of the remaking of masculine behaviors to avoid being labeled homophobic? Women have long expressed a desire for men to be less competitive, more team oriented, open to showing their feelings and embracing their feminine side. Maybe that is what they are doing. Maybe they went to a progressive team building event in which team building and sexual harassment topics were covered and this is how they internalized the lesson.

      • SW
        I wonder what will happen to those of us that eschew the concepts of bromances and bro-hugs or hugs from any non-family member. Will we be labeled as hugaphobes who need to be outed and considered non-team players subject to termination?

  6. “Could this new fad be an outgrowth of similarly demonstrated behaviors of women in the workplace…..?”

    I would say yes. When on unsure footing, always on guard, watching what you say and do next, you bond with those with whom you most identify. This is why women connect, however intimately, in places in which they are outnumbered. It does not surprise me at all that men would do the same in a situation in which they have to be very careful of what they do and say.

    That those same women now feel left out? Too bad.

  7. The men in the company have adopted the current fad (Yechhh.) of hugging each other to express a range of things—support, congratulation, sympathy, platonic affection

    Hah. Regarding the “Yechhh.”

    I first got what I guess has become known as a bro hug in 1973. It was at a hot chocolate party of a bunch of earnest (gay and lesbian, I think) Catholic religious people. Anyway, a guy hugged me as I announced I had to leave. I was totally caught off guard. It wasn’t sexual in any way but it was just a surprise. I didn’t know what to do. Much to my embarrassment, while he hugged me I patted him on the ass. Which was reflexive behavior because I’d played a lot of basketball in grade school and high school and for some strange reason, patting each other on the ass was what we did to express approval of someone’s play. Even coaches did it. But I was basically mortified, even though it was pretty funny.

    Anyway, unlike Jack, although I was raised in a family where my parents couldn’t have ever shown any affection in public more than two or three times I can remember and it took me a few years to allow my wife to be affectionate toward me in public, I’ve made my peace with everybody hugging everybody else. Resistance seems to be futile. Handshakes, my preferred mode, are evidently insufficient. So be it.

    But I still draw the line at certain points. There shouldn’t be hugging in baseball. Just yesterday, I saw a clip of a minor league manager going to the mound to pull his pitcher because the pitcher had just been called up to the big league club. Right there, on the mound, the pitcher, what did he do? He hugged his manager. That’s just wrong.

    • And don’t get me started on younger people and grand kids all saying “love you” at the end of every encounter of conversation. That drives me nuts. Ugh. “I love you” used to mean something. I’m not sure what it meant, but it was used very, very sparingly but means nothing at all these days.

  8. By not hugging them, however, the men isolate the women, exclude them from the social fabric of the “team,” and, in essence, discriminate against them by signalling that they are “the other,” thus creating a hostile work environment.

    Yes, and they bloody well deserve to be isolated. Too many of them decided, as in this example, to let their feelz dominate their lives, to allow themselves to be offended at every jot and tittle of the remotest possibility of offense, no matter how twisted and improbable.

    No, fortunately not all or even most women are like this, but enough that they’ve ruined the entire working environment for everybody. Their price: Isolation. Let the lawsuits begin.

    Let me try to flesh out a complaint here — “Respondent was seen numerous times by plaintiff hugging his male friend in a companionable embrace, and occasionally touching by grasping hands, therefore creating a hostile work environment.” Truly an offensive, nearly criminal act that Someone Must Pay For!

    In the liberal cities like LA, San Fran, NYC, etc., this has about a 75/25 against chance of flying with a given jury. Everywhere else, it has almost as much of a chance as I do extending my arms and soaring to Mars on the freaking solar winds.

    Which is just more proof that civil war is coming, I guess. My give-a-shit meter has burned out on the zero peg with this one. Ethics zugzwang it may be, but it’s too ridiculous for me even to care a tiny bit, since I’d rather cut my throat in the middle of Main Street with a rusty razor blade than live in a city like the aforementioned.

    • I’ve been out of the workplace for nearly twenty years but the women I recall would have simply rolled their eyes and shook their heads at “the boys” acting that way. And everyone would have had a laugh and gone back to work.

  9. I prescribe high-fives.

    You’re right, this isn’t something laws can deal with. This is all culture, and needs to be dealt with using cultural tactics. In order to include people who may be uncomfortable doing what everyone else is doing, you have to get to know them on their terms and learn how to form an effective relationship or camaraderie with them.

    Part of the issue is that cultures that hold people together are often based on narrative mindset (synthesis and semantics). The semantics aspect of narrative means that in order to be part of the group, people have to conform to a particular set of rules (rituals, labels, et cetera). Narrative makes it very easy to apply a single culture to a large group of people, but only if you don’t care whom you exclude. In the process of making a set of rules so that people can join easily, you also make it hard for anyone who can’t follow those rules to join.

    Generating a bond or impression with people regardless of what rules they follow or what boxes they check falls under the domain of empathy. There are certain rules that help with empathy mindset (see background mindset, which covers things like etiquette), but past a certain point past a certain point you can’t make rules to help or compel people to use it. You can only create an ideal and inspire people to live up to it. People have to interact their own way, but if they know where to start and where they want to end up, then they can accomplish great things.

  10. Will ALL hugging follow the route of the buggy whip?

    I’m a self-styled cool Uncle and made it a priority to be a significant presence in my nephew’s lives growing up. So in greeting and departing with those no-longer-little-shits, it’s always with a sincere Hand-Shake-Pull-Toward-Lean-In-Smack-Back-Bro-Hug.

    A nephew and his SO recently completed their advanced degree work in Public Administration, UT-Austin.

    Couple of weeks ago I saw them off as they prepared to head down to Chicago; she’ll be working in Rahmbo’s office, a guy about whom I have strong opinions, which I kept to myself.

    Could be I was over-analyzing it to begin with, (which would be so unlike me), but I was thinking to myself, do I hug his gal-pal who I’ve only met twice?

    Upon completing the ubiquitous departure sequence with my nephew, she was approaching me, leading me to believe “here it comes,” so I leaned in for the clasp.

    She leaned in as well and “side-armed” me, kept her arms unnaturally tight to her sides, as I hugged her

    I withdrew thinking to myself “don’t look surprised,” while also pondering: WTF was that? I also had a mental screen-shot of “The Summer of George” Seinfeld episode where Elaine ridiculed a coworker that walked without moving her arms, which didn’t turn out too well for Elaine.

    Some people give squishy hand-shakes because they don’t know any better; that couldn’t be the case here, could it?

    Sheesh, and here I sit with less than two weeks until I host the Annual Schlecht Picnic to figure it out.

    • Your efforts notwithstanding, I suspect she considers you her boy friend’s crazy uncle, Paul.I bet she’s not from Wesconsin. Probably from one of the tonier parts of Chicagoland?

  11. ”I suspect she considers you her boy friend’s crazy uncle, Paul.”

    Stranger things have happened, but the press release is I don’t come off as all that crazy in the flesh…not from where I’m sittin’ leastways.

    ”I bet she’s not from Wesconsin. Probably from one of the tonier parts of Chicagoland?”

    You’re right, but it’s worse; north Jersey across from NYC, talk about tony!

    “That attitude you’re trying to decode may be her looking down her nose at you.”

    That wouldn’t line up with everything else I’ve observed. Despite a couple of tats and one (that I could see) discreet piercing, she seems like a classy, polished person, good eye contact, engaging, personable.

    That’s why the side-arming struck me as odd, it was inconsistent. I’m just hoping the rest of it isn’t a case of “sincerity; once you can fake that, the world is yours.”

    “It happens. We’re old.”

    It’s happened. We are.

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