Workplace Sexual Abuse Is All About Power

Judges view concept of consent in office relationships through a very skeptical lens

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Employment Law

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.

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