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…”