Another entry in my quest to post the articles I published over the summer while my blog lay fallow. You’ll probably recall seeing the headlines about this story–the dentist who fired his assistant because he was afraid he might try to sleep with her–but I actually dug into the case for AlterNet and tried to highlight what all U.S. workers can learn from the case. The takeaway, as in so many labor stories, is that you don’t have any rights at work. (The photo is courtesy of Shutterstock.com: “Several businesspeople walking in the corridor.”)
The court basically decided she was asking for it because she was friendly with her employer (Dr. James Knight) and texted him about non-work related life stuff. He tried to take it beyond their paternalistic relationship and although she didn’t encourage him, she didn’t rebuke him (she didn’t respond at all). The power dynamics here are all fucked up. Without adequate labor protections or a union, being pals with your boss is an understandable way to feel secure in the workplace. But bosses are human beings, a notoriously mercurial species, and no matter how great they are they have the power to cripple your economic livelihood, as Melissa Nelson learned. (It’s also important to note that Nelson sued Knight for gender discrimination, but not sexual harassment. As I note in the piece, she may have had a better case under the latter standard.)
Here’s the important takeaway for anyone faced with a similar situation:
So what can you do if faced with a similar situation? In theory, the best protection would probably be to immediately inform the offending superior that his comments are making you uncomfortable. This would conceivably make the wrongdoer stop, or if worst comes to worst, provide a strong basis for a sexual harassment suit. If possible, inform another manager and keep a detailed account of dates and times of the incidents. If the company is large enough to have a Human Resources department, report the unwelcome attentions to a representative or harassment hotline.
But such actions are easier typed than done. What if the creep in question is the highest authority, as Knight was? Human Resources departments, while better than nothing, are no substitute for a third party arbitrator or the option of independent action. With a power imbalance of this magnitude, it’d be nice to have someone on your side who isn’t being paid by the same employer that could potentially be legally implicated in your complaint. Mersich notes that the National Labor Relations Act protects workers engaged in “other concerted activities for the purpose of…mutual aid or protection” and that “I often advise clients to bring other employees into a complaint about lawful (but awful) behavior. When you act on behalf of others, even if they don’t ask you to, you are engaged in ‘concerted’ activity.”
But he admits that Nelson had no such option, as she was the sole object of Knight’s attentions.
“I think this employee might have been better off if the moment her boss started saying sexually oriented things to her she had objected, and objected vociferously…[instead] she understandably kind of brushed it off and didn’t really engage,” says Bagenstos. “Now that is a double-edged sword for an employee. You don’t want to rock the boat. If you complain too much your boss may not like you; most people want to make day-to-day relations go smoothly. If you complain, your boss might fire you and you might not be protected against being fired.”