Me too. I have stories that fall into the “egregious” or “obvious” category: like the time a judge brought me privately into his office, told me to “sit down, cross your legs, and look pretty.” When I sat down I did cross my legs, mostly because he was leering at me. I never wore a skirt to that courtroom again. He told me on that occasion that one of the three women in his law school class was a “knockout” with great legs (he named her, a well-known and respected lawyer). The same judge patted me on the cheek, pulled my hair, and once asked me if I was “trying to get skinny,” all on different occasions.
My guess is that most men and women in the workplace would see these examples of sexual harassment as having crossed a clear line of inappropriateness. But what about the subtler examples? The ones that make us ask, “was that over the line or just normal workplace banter?”
In the wake of the #metoo movement, I ask myself the same questions. I have worked as a criminal defense attorney in the same office, with many of the same co-workers, for 20 years. We know each other pretty well. We share a lot about our personal lives. We blur the line between co-worker and friend, and I think that is normal. Because we are criminal defense attorneys, it is equally normal to have cases that detail the most intimate and uncomfortable human interactions. We discuss our cases with one another, seek advice, and talk about sensitive topics. Somehow we do that without making each other uncomfortable. Because the discussion is never personal and is not about us, we navigate those discussions successfully.
But talking about a case is not the same thing as telling a dirty joke around the water cooler. It becomes personal when someone is embarrassed. For instance, a joke whose punch line is about a woman’s body parts (or a man’s, for that matter) has the potential to embarrass or to make someone feel self-conscious. We leave to another day the question why our culture finds so funny jokes that demean women, but if you’re saying something at the office that will make your parents, your 15-year-old, or your spouse blush, that is probably a good benchmark. Don’t say it.
True, we all know co-workers around whom we can say anything. Getting to know a person at work and finding friendship is a normal part of life. But what about the other co-worker, the one who walks into the kitchen just as you’re blurting out the punch line? The one to whom you would not have told the same joke? That person deserves a workplace where he or she doesn’t have to hear something uncomfortable. And what if the co-worker with whom you’re less friendly happens to be a subordinate? That raises a slew of other questions.
Pushing the boundaries further, what happens when there is a romantic relationship between co-workers? What should the rules be? In some professions, ethics rules prohibit intimate relationships among “consenting” adults. It is generally against ethics rules for a therapist or psychiatrist to have a sexual relationship with a patient.
For lawyers, the America Bar Association has detailed the ethical problems arising from a lawyer’s sexual relationship with a client. The rationale behind these rules is simple: there is an inherent power imbalance between the parties even if, under other circumstances, there would be no problem.
The rules recognize that a professional’s objectivity, and thus his or her ability to do the job, are compromised when the relationship becomes personal.
It might not be a bad idea to borrow the rationale of professional ethics and set some boundaries. Recognize that there is an inherent power imbalance between boss and subordinate. And that decision-making is perhaps clouded when there is a personal relationship with someone whom you supervise.
Also recognize that, if a relationship goes south, you are at risk of being sued for workplace discrimination if the subordinate can demonstrate that he or she has been treated differently, lost a promotion, or not gotten a raise after the break-up. I don’t know all the ins and outs of employment discrimination law, but setting boundaries at the workplace and limiting personal relationships as much as possible seems to be sound from a practical standpoint.
Deciding where to draw the line between appropriate and inappropriate behavior in the workplace is nuanced and complicated. Sorting it all out is going to take time. Perhaps the best thing we can all do at this historical moment is step back and examine our own behavior. Everyone benefits from looking with a critical eye at behavior that seemed “normal” before and asking if it is really OK. We should be asking ourselves if the discourse we engage in at work is respectful.
What is not helpful is telling women that they “need to lighten up” or that they have no sense of humor. I can’t tell you how many times I have heard men say this to women who voice dismay at sexist comments, whether at work or in social situations.
While I am quick in my social interactions to call out sexist comments, I have not been so vocal at work. All the times that judge harassed me, I never said anything to make it stop. I was concerned that I would be labeled as overly sensitive, or, worse than anything, that people would think I couldn’t handle the heat of being a trial lawyer. That I wasn’t tough.
This type of thinking, I know, is common in some women. We pride ourselves on being able to take it, so we act like one of the guys and laugh off the inappropriate comments. But the biggest reason I never said anything is that I was equally concerned that if I did, he would take it out on my clients when I next came to his court. I have not had to appear in his courtroom in years, but I would like to think that, if it happened again, I would do it differently. But courthouses are small communities, and I can’t say with certainty that I would. In many ways I feel that my silence did a disservice to the women in the next generation of lawyers.
I expressed as much to a younger co-worker recently. Her response was insightful. She reminded me that there were other women and men in the room when many of those things happened. And none of the men said anything either. She is right. Until men start standing up to other men about sexual harassment, the culture will not make real change.
We have lived for a long time in a paradigm where micro-aggressions like sexist comments or dirty jokes at work are the norm, and it has allowed the culture of harassment to flourish. By defining mildly disrespectful discourse as “not that bad,” we have set the bar at a place where some think it is OK to tell a professional, well-educated woman to “sit down, cross your legs, and look pretty.” It is time to think about it differently.
Bergman holds a bachelor’s degree in English literature from Skidmore College and a law degree from Santa Clara University. She lives in Princeton.