I know it when I see it
Sexual harassment is a very broad topic that encompasses a broad spectrum of possibilities, infractions, remedies and tests. When one thinks of sexual harassment the obvious man-to-woman scenario comes to mind. However, society often forgets that the roles of harasser and victim are not set in stone and those we imagine as typical victims are ever-changing. Although Illinois has anti-sexual harassment legislation in place, due to society’s recent awareness of the transgender community there is a rising tide of sexual harassment issues that are becoming more prevalent and need to be addressed.
In 2015, Caitlyn Jenner, formerly known as Bruce Jenner, winner of a gold medal in the 1976 Olympics, transitioned into a transgender female and sparked inspiration for many people to reveal themselves as transgender.1 With an increased number of people openly identifying as transgender there is a concern about the type of sexual harassment issues they may confront. While many issues in sexual harassment are blatant and obvious, some may be more subtle and identified as subjective sexual harassment, which depends upon the victim’s perception and interpretation at the time of the action.2
Subjective sexual harassment is not blatant or out-in-the-open and clear to see; it is subtle, indirect, and not pronounced.3 However, when examined in context, a violation of sexual harassment policy or law may be determined. Frequently, with subjective sexual harassment, it is difficult to decipher between conduct that constitutes sexual harassment and conduct that makes a person uncomfortable but is not quite sexual harassment.4
Subjective sexual harassment is based on a “reasonable person” standard.5 In such cases, the court looks at the situation from the view point of a “reasonable person” and then decides whether something is sexual harassment in the eyes of a “reasonable person.”6 A “reasonable person” is a hypothetical person in society who exercises average care, skill, and judgment and who serves as a comparative standard for determining liability.7
When subjective sexual harassment takes place, it may create a hostile work environment.8 A hostile work environment is created when an employee is uncomfortable or scared to the point where the sexual harassment interferes with his or her work performance.9 For an uncomfortable environment to specifically qualify for being an illegal hostile work environment, there are certain criteria that must be addressed.10 The actions or behaviors must: discriminate against a protected class; must be common and long-lasting; and be severe to the point that an employee’s work is disrupted.11
Often, people who are transgender are afraid to reveal themselves at work. This is especially true for men who become transgender women, because in the workplace women are not treated the same as men. A transgender woman voiced her concerns that “due to gender stereotyping, women are thought of as less useful in work… After trans women have transitioned, we are somehow seen as less able, skillful, or worth listening to.”12 These stereotypes faced by women are making transgender women fearful to reveal themselves because they do not want to be viewed as less able or less skillful.13 Many make the assumption that when transitioning, a person’s personality changes in accordance with the person’s preferred gender, whereas in reality their personality never changes.14 In the workplace, when men are assertive and have leadership qualities it is viewed as respectable; however, when a woman shows these same qualities, it is “seen as aggressive, bossy, and nagging.”15 Because women with these qualities are viewed this way in the workplace, they are more likely to be sidelined in a meeting, be spoken over, and thought to be less capable.16 Unfortunately, this makes for a hostile work environment for transgender women.
With the recent awareness of the transgender community, there are more people comfortable in revealing themselves as being transgender and later transitioning. When a person reveals the secret and burden of being transgender, after many years, the people in the person’s life might not know how to handle themselves in front of them. There may be issues with how to refer to someone who is transgender. Unknowingly, a supervisor or employee may refer to a transgender person other than what they would like to be called. For instance, a transgender person who was born as a man, but identifies as a woman, might accidentally be referred to by male titles, such as Mr. or Sir. A person in this situation would be upset being referred to as a man when in actuality she is a woman. Scenarios similar to this are unprecedented and will require a learning curve for everyone to adapt to new issues that surely will be arising.
Without constant awareness, one might end up unknowingly saying something that could be considered subjective sexual harassment to someone who is transgender. With this issue, as with any sensitive issue, a simple comment can be hurtful or can be easily taken the wrong way. A comment that was intended as innocent may be interpreted as teasing and malicious, in turn creating a hostile work environment for the transgender person. Little things like comments can be the most hurtful sometimes. It is important to be aware of what one is saying and to watch out for the little things.
On the other hand, purposeful and vicious commentary is also an immense problem for the transgender community. Comments that are intended to degrade, make fun of or belittle a person are unacceptable and should not be tolerated in the workplace. A comment that would be considered unacceptable would be an insult disguised as a compliment. Examples include a co-worker pretending to compliment the way a transgender woman looks, but in reality intending to make fun of the transgender woman.
Hurtful commentary is not the only problematic issue pertaining to subjective sexual harassment confronting the transgender community. Conversations between co-workers, generally referred to as locker room talk, had in “good-fun” are often at the expense of a person or group in order to elicit a laugh. Locker room talk is “discussion using foul language, or of a sexual or otherwise offensive nature.”17 People could be talking and making derogatory gender related jokes, or more specifically jokes about the transgender community, not knowing there could be someone around them who is transgender who has not revealed themselves yet. These conversations are meant to be harmless but in actuality they can be hurtful and offensive to someone who is transgender.
Illinois has laws that are in place to protect people from sexual harassment.18 The employment provisions of the Civil Rights Violations statute are put in place to hold the employer responsible for any sexual harassment which occurs under their employ, regardless of whether the employer was aware of the sexual harassment or not.19 One can reasonably infer that if the employer is being held accountable for the actions of its employees, it will be less likely to tolerate sexual harassment in the workplace; thus, the statute encourages stricter sexual harassment guidelines to be adopted at work.
Illinois has tailored the Illinois Human Rights Act to protect transgender men and women from discrimination and sexual harassment.20 More specifically, employers cannot discriminate against transgender men and women in any terms and conditions of employment, including hiring, selection, promotion, transfer, pay, tenure, discharge, discipline and sexual harassment.21 As a matter a fact, Illinois is only one of a few states that has laws in place to protect transgender men and women.22
In the event of subjective sexual harassment, the victim or a witness could report the sexual harassment to their company’s Human Resources department. The person also has the option of filing a report with the Illinois Department of Human Resources (IDHR). The IDHR requires that a charge of discrimination be filed within 180 days following the alleged discriminatory action.23 The department will begin by permitting the option of mediation instead of the investigation; if the mediation does not deliver a result. the IDHR will continue on to the investigation portion of the action.24 After the investigation is complete, the IDHR will come to a conclusion regarding the action and determine if there was a violation of the law.25 If the IDHR determines there was a violation, they may draft a charge against the harasser; alternatively, the victim has an opportunity forgo the IDHR charges and to sue the harasser on his or her own.26
The Equal Employment Opportunity Commission (EEOC) provides the same service as the IDHR; however, the EEOC provides this service nationwide. The “EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.”27 While these resources are in place to prevent harassment and offer the victim some solace, because of the indirect and subtle nature of subjective sexual harassment, it is often difficult for both the harasser and bystanders to recognize the nature of their actions. In turn, it is imperative that people be aware of their comments, actions and surroundings, as well that bystanders be conscientious of purposeful harassment, at all times so as to not unintentionally or intentionally offend or sexually harass their co-workers.
Due to the awareness of the transgender community, now and in the future it will be common to hear there is an increase of subjective sexual harassment that the transgender community is encountering. There will be people that hope to reveal themselves but are unwilling to do what others have done because transgender women and men are likely to encounter sexual harassment at work. By reason of that, it is important to be aware of the little things that can be misinterpreted. While there are many instances where the harassment is purposeful, there are also instances where innocent actions and words can be interpreted and perceived in a way that might seem to be injurious. We must all observe a new awareness of the changing scope of sexual harassment.