Sexual harassment in the workplace: What crosses the line?
Since The New York Times published its first story on disgraced movie producer Harvey Weinstein's alleged sexual misconduct, dozens of powerful men have been accused of harassment leading to firings, resignations and criminal investigations. It also started a national conversation about sexual harassment – particularly in the workplace.
However, there is still some confusion over when a line has been crossed. Allison West, an employment attorney and HR specialist, joined "CBS This Morning" to help define what constitutes harassment, when situation rise to the level of violating the law, and why workplace relationships between a supervisor and a subordinate are "never" OK.
West, who travels the country to conduct workplace harassment training, including here at CBS News, began by defining the two types of harassment at work: hostile work environment and quid pro quo.
For a situation to be considered a hostile work environment, West said the conduct must meet a number of criteria. It must be behavior that's "unwelcome, or offensive, some jurisdictions would say"; it must be directed at someone because of a legally protected characteristic such as race, gender, sexual orientation, or age; and the misconduct must be be severe or pervasive.
"We look at it from the reasonable person's standards. Not everything rises to the level of being unwelcome," West said. "It has to be really bad or ongoing. So sometimes one thing could be significant enough or severe enough to violate the law."
But West pointed out that most company policies are actually tougher than that. A single instance, for some employers, could be cause for dismissal.
"Really, no good employer in our country is going to have the legal definition in their policy, because why would you want the conduct to be severe or pervasive, right?" West said.
The other type of harassment, quid pro quo, would be a situation in which a sexual act is demanded in exchange for a reward of some kind or, if the harasser is rebuffed, a punishment.
"You give me the sex that I want and in exchange I'll either give you something or I'll take it away. So it can be a punishment as well," she explained.
As for the example of someone exposing themselves to a coworker, West said that would not be considered a "gray area."
"That's – if proven – that's termination. A kiss could potentially also violate the (company) policy. But under the law there are very few attorneys that would take a case for one kiss just because it would not rise to the level, typically, of violating the law," she said.
According to West, harassment can move from the workplace to the courtroom when the behavior doesn't stop.
"In some states, like in California where I am, you have to go to either the EEOC (Equal Employment Opportunity Commission) or Department of Fair Employment and Housing, you have to actually file a charge," she said.
A common refrain in the statements of many of those accused of harassment is that they perceived the relationship or behavior to be consensual. However, West says that a consensual relationship between a supervisor and a subordinate can't really exist.
"They (supervisors) have power and it's very hard to separate the power," she said. "It's very difficult to be able to really affirmatively give consent."