What sexual harassment is and what to do about it

Women say Harvey Weinstein brazenly harassed them, but it's not always obvious.

ByABC News
October 18, 2017, 9:37 AM

— -- Over the past week or so, Hollywood producer Harvey Weinstein has been accused of sexual harassment by a number of women.

Among them: Former "Friday Night Lights" star Minka Kelly claimed that Weinstein asked her to be his girlfriend in exchange for "a lavish life," while actress Ashley Judd alleged in The New York Times that Weinstein asked her for a massage. Cara Delevingne said in an Instagram post that Weinstein brought her to a hotel room, where he asked her to kiss another woman, and though she declined, she felt like she later landed a role in one of his movies that she didn't deserve.

Weinstein has acknowledged inappropriate behavior, but through his spokeswoman, "unequivocally denied" any allegations of non-consensual sex.

However, with the claims ranging across a spectrum, it invites the question: What constitutes sexual harassment?

ABC News delved into the issue as it pertains to the workplace or academic setting by speaking with experts about the problem and what people who feel victimized can do about it.

What is sexual harassment? "In a lot of the storytelling that we’ve been hearing, there are a lot of examples of innuendo and comments or sometimes even physical contact that could've been construed as innocuous but really felt sexual," Anne Hedgepeth, vice president of policy for The American Association of University Women, told ABC News. "I know that people struggle with, 'At what point does it become bad enough to come forward?' but all of those things can add up to create a hostile climate."

The bottom line, according to Sara McGovern, press secretary for Rape, Abuse & Incest National Network (RAINN): "If someone is making unwanted sexual comments or advance[s], it's never OK."

However, the legal definition is a bit more specific. Workplace investigations expert Fran Sepler told ABC News that legally actionable harassment — or when a victim can sue an employer — must fit into one of two categories: a hostile environment claim, which involves unwelcome severe or pervasive behavior that would offend a reasonable person and impacts the terms or conditions of employment; or quid pro quo sexual harassment, which occurs when a person asks for a sexual favor in exchange for something else.

Who sexually harasses others? "Sexual harassment can occur in a variety of circumstances," McGovern said. "The harasser can identify with any gender and have any relationship to the victim, including a direct manager, indirect supervisor, co-worker, teacher, peer or colleague."

Victoria Lipnic, acting chair of the EEOC, added that the problem is "very persistent and pervasive." "It is across all industries. It is across income levels. It is across positions in organizations, high-level positions, lower-level positions, white-collar jobs, blue-collar jobs. It's every day, everywhere," she said. "We've seen in the last year and a half celebrity-infused incidents that call more attention to it and I think that might encourage more people to file complaints. But the charges we see are the tip of the iceberg."

What happens when a sexual harassment claim is made? Lipnic said that once a company receives a sexual harassment complaint, there are three steps that should be followed: 1.) The manager or human resources representative handling the complaint must take it seriously. 2.) The claim must be investigated. 3.) Depending on the outcome of the investigation, some corrective action should be taken. "We want to encourage employees to not be afraid to come forward and for companies to have systems in place where they communicate to their employees that these things will be taken seriously," she said. "First-line supervisors in the organization have to be trained to respond appropriately. A response of, 'That's just how he is' doesn't cut it." Still, Sepler added, the party who reported the harassment does not dictate the punishment enacted by the company.

What else can someone do if he or she has been harassed? Sepler said that if someone is being sexually harassed in the workplace, a person in a position to address the concerns (i.e., a human resources employee or a manager) is legally obligated to do so. Gloria Allred, a California-based discrimination attorney, and her law partner, Delores Leal, also encourage those who have been harassed to keep a journal and include names of witnesses. "It is always best to document the complaint in writing -- e.g., via email, memo, text," Allred wrote in an email to ABC News.

Should the sexual harassment fall into the category of legally actionable, one could also file a legal complaint. Lipnic explained to ABC News that first, the person who faced harassment must file a complaint with the EEOC, which will then serve a notice of charge to the employer and conduct its own investigation. "We can try to settle on behalf of that individual with the company and depending upon whether there are terms that are agreeable, it may settle then," she said. "If that's not the case, we can then give the individual what's known as a 'right to sue' letter, which they can take to a lawyer and file on their own or we may file suit in district court." However, she continued, the EEOC files a very small percentage of cases in federal district court every year compared to the number of charges they investigate.

However, many people do not feel comfortable coming forward with their stories because of fear of retaliation, among other concerns. There is still something those people can do, Sepler noted. "There's actually some really good research that says if you can find a way to tell the person, 'This is not working for you and it's got to stop or I'm going to take further steps to address it,' there's a really good chance that it will stop," she said. "The law is very clear: You are never obligated to do that. You can go straight to HR and report it but there's pretty good anecdotal evidence that if it's early enough and you tell them to knock it off, they will. If not, you'll feel OK getting them in trouble because you gave them an opportunity to fix it."

What legal penalties does someone who is sued for sexual harassment face? Different states have different laws, but, for example, Allred and Leal noted that in California, a victim of sexual harassment can recover economic damages (if, for example, the person was terminated or demoted for not acquiescing to the sexual demands); compensatory damages (for physical, psychological and emotional distress); punitive damages; and attorneys' fees and costs.

What steps can business owners take to ensure that their employees are safe from sexual harassment? Again, different laws apply in different states, but Allred and Leal wrote that in California, for example, depending on the size of the company, The California Fair Employment and Housing Act requires employers (with at least 50 employees or independent contractors) to train supervisory employees once every two years. They must also train employees within six months of them taking their position as a supervisor.

Lipnic also noted that companies have a responsibility to focus on the individual workplace, too. "They can't just say, 'Here's our policy: We don't tolerate harassment,'" she said. "They have to be focused on the culture of the workplace. Maybe some men are saying things and they don't realize that's harassing or they don't realize that's a put-down. What's the culture there? That can lead to more egregious behavior."