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Discretion in the Criminal Justice System

      Discretion is arguably the most important tool in a criminal justice professional’s arsenal. Without it, we would be robots. Even the ...

Making Sexual Harassment a Crime

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Whether used as a maneuver of power or for sexual gratification, sexual harassment should be considered a white-collar crime. The multitudes of victims that are trying to lead a normal life and work their normal shift without being victimized is on the rise. In 2018 an estimated 81% of women and 43% of men were unwillingly sexualized in the workplace. (Chatterjee, 2018) Civil court lawsuits and employee termination has failed to provide the correct amount of punishment to perpetrators. Sexual harassment should be looked at through a criminological scope and given a misdemeanor status to curb the rise in our workforce today.

There are two forms of sexual harassment; one which creates a hostile work environment, and quid pro quo. A hostile work environment stems from a person in the workplace using sexual harassment to deny a co-worker, subordinate, or even a supervisor the normal, day-to-day work-life that all employees deserve. Quid pro quo focuses on the exchange of something between two employees if one of them can sexually harass the other. Both of these forms wreak havoc on the workplace and denies employees the right to the non-toxic work environment that everybody deserves.

            These two types of sexual harassment can take three different forms. The sexual harassment can be verbal, physical, or visual and all three should never be tolerated. Verbal sexual harassment can include anything said, even what someone might think is a joke. They also include text messages, emails, and things written on a board during a meeting. Of course, these are just a few of the ways that verbal sexual harassment can transpire, as sexual predators are constantly evolving their ways and means, and nothing is fully off the table for how they can harass another employee. These are things such as writing a note to a co-worker or even asking someone about a risqué story from their past.

            Sexual harassment through visual means can be anything from staring at a co-worker’s body in an uncomfortable and blatantly obvious way or winking at someone too much. If it makes someone uncomfortable, even if nothing is said, it is still sexual harassment. Physical sexual harassment stems from anything that transpires between two employees in which there is physical contact and it’s completely unwarranted on the receiving end. This can be anything from brushing up against a co-worker’s breasts while reaching for something to bending someone over a desk to show them how they would perform sex acts on them from behind.

Lawrence Cohen and Marcus Felson, the criminologists behind routine activities theory, published a journal detailing the specific ways in which crimes take place through “routine activities.” For a crime to transpire, three elements need to be in place: an available target, a motivated offender, and the absence of a guardian to stop said crime. (Cohen & Felson, 1979) This means that as long as the reward is worth the risk the offender is taking, and the victim is not sufficiently protected from the crime being committed, the crime will take place.

            This can be applied to sexual harassment in the workplace. The motivated offender is the predator, motivated by either the need to show power over the victim, or wanting to satiate a sexual desire. The suitable target is the victim, only suitable because they are in the same environment as the offender. The target can be the offender’s subordinate, or it can be their supervisor, and they may need something from the offender, such as a part in a movie or a promotion. The lack of a capable guardian lies in the employees who see the toxicity that the offender presents but fails to do anything about it.

            Just like with the criminological approach to routine activities theory, breaking down each level could dampen sexual harassment as well. Take away the offender’s motivation by the promise of swift, harsh punishment if they dare to harass a colleague. It should even be made into a misdemeanor and punishable as such. Take away the lack of a guardian through workplace training by showing employees the importance of coming forward or intervening against toxic behavior. The only level of the routine activities theory that would not need to change is the suitable target. The victim is doing nothing wrong and this behavior is directed toward unwilling participants.

            Sexual harassment was, at first, difficult to separate between blue and white collar. The victim may be a blue-collar worker and may have been sexually harassed by a white-collar worker, lending credence to the school of thought that sexual harassment using blue and white-collar terms is undefinable. (Wright, 2001) This is false. Sexual harassment itself is a white-collar crime as white-collar crime only needs the following three factors to be considered as such: time, location, and role of the victim. (Payne, 2017) This can arguably make every sexual harassment complaint white-collar, regardless of the employee themselves being considered in a blue-collar or white-collar role.  

            At the judicial level, sexual harassment has been argued in front of a judge multiple times. The first was in 1986, where the Supreme Court itself oversaw the case of Meritor Savings Bank v. Vinson, in which the ruling went in favor of the Civil Rights Act’s Title VII. The ruling stated that, “…the language of Title VII is not limited to a proscription of only "economic" or "tangible" discrimination.” (Wright, 2001) This means that, for the first time, a hostile work environment was proven to exist and did not necessarily need a tangible object, position, or promotion in order to constitute sexual harassment.

            The 1993 case, Harris v. Forklift Sys., Inc., clarified a lot of questions that were left from the Meritor Savings Bank v. Vinson. The decision of Harris v. Forklift Sys., Inc. also brought forward new ways of thinking about sexual harassment, such as the objective and subjective elements. This means that the standard for sexual harassment requires, "…an objectively hostile or abusive work environment [one] that a reasonable person would find hostile or abusive," as well as the victim's subjective perception that the environment is abusive. (Wright, 2001) This means that the courts can now take into consideration the individual work environment on a case by case basis, ultimately leading to the decision of Rabidue v. Osceola Refining Co. in which it was first considered that the courts presiding over cases can take a look at the inherent differences between blue and white-collar environments. (Wright, 2001)

            The next case, Gross v. Burggraf Construction Co., which was argued in front of the Tenth Circuit. In this case, the decision to consider the environment was taken a step further. Because Gross was working in an environment that commonly uses profanity, between both males and females, her claim that she was sexually harassed was thrown out. Because the boss used crude language with both the female and male workers and was typical of the environment, no sexual harassment took place, according to the ruling. This established that the industry be taken into consideration. If the same language was used between a principle and a teacher, the case would have been scrutinized in a different fashion.

            The ruling in Gross does not take into consideration that the industry may be filled with profanity and sexual harassment. What happens when a person is sexually harassed in an environment that courts would consider crudeness a normality? In Williams v. General Motor Corp., Williams had been working in their role for thirty years before filing a sexual harassment claim. (Wright, 2001) While there was nothing specifically tied to her gender in the harassment, the court looked at all evidence as a whole and agreed that she had been sexually harassed in the workplace. (Wright, 2001)

            Sexual harassment has been an extremely controversial subject in the media world. According to a study conducted by the Center for Talent Innovation, “About 41 percent of women in media and entertainment say they've been sexually harassed by a colleague or boss at some point in their careers.” (NBC News, 2018) This places media at the top of the list for sexual harassment amongst white-collar industries. The reasoning behind this can be seen in the way that relationships are extremely important in the media industry and how having powerful allies can help boost a career. This makes it easy for people to become the victim of sexual harassment as the “big-wigs” in the industry can use their prestige to bait the victim into a sexual obligation. This type of sexual harassment can be a hostile work environment such as a reporter being sexually harassed by her boss, or it can be quid-pro-quo where a powerful producer or director gives an actress or actor a specific role under the understanding that they will engage in sexual activity with them. Luckily, there is a movement that looks to steer away from the toxicity of the media industry.

            The MeToo movement has recently gained traction and for good reason. It started as a movement for minority victims in low-income areas to share and discuss these traumatic experiences that are taking place all over the world. Since its inception in 2006, the movement has been grounded in holding predators accountable and providing long-term systemic change in society. (MeToo, 2018)

            The interesting thing about the MeToo Movement centers on the changes that it already has made. In the last week, famous and controversial movie director Woody Allen received a break from his contract with Amazon as he had made some critical comments against the MeToo movement over social media. (Neumeister, 2019) This is good news, as it’s anyone’s guess why this predator was even given a contract by Amazon in the first place. More importantly, it shows other predators that these actions will not be tolerated, and even being critical of the movement by itself will not be tolerated.

            Another example of the great work this movement is providing lies in the attention it is bringing to the “non-disclosure” side of sexual harassment. When high profile cases settle out of court, the true grasp of the predator’s actions are never fully shown. This leaves the person free to victimize more people as they are never held accountable for their actions. (Gousman & Erb, 2019) Accountability is a vital part of the cycle of sexual harassment that needs to play a larger role than it has in the past. By holding predators accountable, punishment can be implemented, and the workplace will be that much safer and comfortable. Perpetrators of sexual harassment can no longer use “lack of education and training” as an excuse when they are caught. In twelve states sexual harassment training is a requirement in the workplace. (Gousman & Erb, 2019) The more training that is provided to the employees, the more priority is placed on sexual harassment and the more involved the employees will see that the company is.

The Army is another organization that is making great strides in sexual harassment training. Sexual Harassment and Assault Response and Prevention training is given every six months where for one day, twice a year, we all crowd into a classroom and spend the entire day watching cheesy, low-budget, scenario videos on what to do and not to do. Some of the situations are painfully obvious, such as not to rape one another. Others are situations where a person may tell a joke and another servicemember listening may take offense. Soldiers in the training always asked questions, and it was important to me as I understood the importance of why we were there.  Having this training twice a year highlighted the significance that the Army was placing on it, and all companies should follow suit. In the civilian sector, there is less emphasis on training, and the way to combat this is by legislation that forces companies to provide sexual harassment training to its employees and turning sexual harassment into a punishable crime. 

By placing proper repercussions on the act of sexually harassing a fellow colleague, predators will be more inclined to think before they speak, gesture, email, text, or even look at a coworker. People deserve to be able to go to work in an environment that is free from toxicity and unwanted advances. Having a job should not be akin to signing up on a dating website. If a completely harassment free workplace is to be attained, harsher consequences need to be implemented. Harassment should be criminalized just like it would be if dealing with a stalker. Through the changing of all sexual harassment in the workplace to a misdemeanor would enforce the laws established in Title VII of the 1964 Civil Rights Act. If white-collar crime is defined as being committed during the course of one’s job, where the offender’s occupational role plays a central feature in the perpetuation of the crime, and their occupation is considered “legitimate” by societal standards, then sexual harassment can be considered a white-collar crime. (Payne, 2017) This would be more heavily enforced if the crime was made to be a misdemeanor, as long as proper evidence proves sexual harassment took place. 

Works Cited

Chatterjee, R. (2018, February 21). A New Survey Finds 81 Percent Of Women Have Experienced Sexual Harassment. Retrieved from The Two-Way / NPR:

Cohen, L. E., & Felson, M. (1979). Social Change and Crime Rate Trends: A Routine Activity Approach. American Sociological Review, 588-608.

Gousman, R. S., & Erb, D. W. (2019, April 12). Examining the Impact of the #MeToo Movement on Workplace Policies. Retrieved from Credit Union Times:

MeToo. (2018). History & Vision. Retrieved from MeToo Movement:

NBC News. (2018, July 25). Women in media reported highest rates of sexual harassment among white-collar industries. Retrieved from NBC News:

Neumeister, L. (2019, April 12). Amazon: Woody Allen’s #MeToo comments wrecked movie deal. Retrieved from Associated Press:

Payne, B. K. (2017). White-Collar Crime. Washington D.C.: Sage.

Wright, A. H. (2001). From the factory to the firm: Clarifying standards for blue-collar and white-collar sexual harassment claims under title vii of the civil rights act of 1964. University of Illinois Law Review, 2001(4), 1085-1108.

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