Donald Trump makes us cringe, but like a stopped clock, he’s right once in a while. He says a woman who experiences workplace sexual harassment should find an other job, or even an other career. All too often, that is exactly what happens. Allow us to explain.
We practice employment law on the side of the employee. While every person’s situation is different, we see disturbing patterns, many of them present in the recent Gretchen Carlson/Roger Ailes lawsuit, which showcase an American work culture we hoped we had left behind decades ago.
Mr. Trump’s recent remarks bring to mind the bad old Mad Men days, where Peggy Olson had to grin and bear harassing comments and behavior. (Not to mention what Anita Hill was forced to endure while working at the EEOC, of all places.) Trump’s “solution” was spoken like a true employer – an employer, according to him, of tens of thousands. His message: If you don’t like it here, then leave. Easy as that.
Not so easy for the employee experiencing gender discrimination.
The path that might lead a sexually harassed employee to quit her job is usually a tortuous one. First, There will have been a period in which she endures. Nneither Mr. Trump nor most other employers have any appreciation for what a soul-sucking experience that is. She will have spent weeks, or years, smiling through the sexual hostility, perhaps enduring unwelcome touching or worse, knowing she’s supposed act as if it’s just boys being boys. Through it all she may struggle, to one extent or an other, with self-blame – understanding why one puts up with abuse is never simple.
Then she will probably have considered her options. One is to complain: tell the harasser to stop, maybe go to HR. But here again, Trumpianism kicks in. We tell our clients who consider making a complaint that they should do so with the full knowledge that once they do, staying might well become untenable. Most HR departments are not going to be on your side. They suppress complaints and smooth over problems without actually fixing them, in order to manage liability. This reality makes the Eric Trump approach particularly clueless: he said a “strong, powerful woman” like his sister Ivanka wouldn’t allow herself to be harassed, and would complain to Human Resources. This just an other way of saying victims of sexual harassment likely bring it upon themselves. And studies have shown that people (and their brothers) falsely overestimate their own potential response to sexual harassment, believing that if confronted with this behavior, they would respond forcefully or complain. But the opposite is true. Research shows that most people nneither confront their harassers nor make a formal complaint. This overestimation causes people – men and women alike – to unfairly judge those who remain passive in the face of sexual harassment, unaware that this passivity is the norm.
So it can often seem like victims of workplace sexual harassment can’t win. When victims decide to complain, they are oftentimes blamed, doubted, and subjected to retaliation. Ivanka Trump herself confirmed she had experienced this “no-win situation” in her 2009 book, The Trump Card: Playing to Win in Work and Life, when she wrote, “If I ignored the inappropriate remarks, I might come across as weak. If I responded too harshly, I’d be a tightly wound witch.”
The picture is not all bleak. The modern workplace is not as overtly sexist as it used to be. Some of the changes are generational, but some of them would truly resonate with Mr. Trump: Companies have been incentivized to listen to victims, perform balanced investigations, and crack down on retaliation because of liability. That’s why it’s so important to change the culture at large, to not just sweep harassment under the rug. One thing we have learned through our practice (and this evidenced in the fallout from the Carlson/Ailes lawsuit) is that when enough people speak out, real change can occur.
Trump has not just described an ugly reality; he seems to have endorsed it. He blames women for workplace sexual harassment, and expects them to deal with the consequences: endure or leave. for once, Trump’s signature phrase of “You’re fired!” is more than just the cry of a power-hungry narcissist: it’s a true reflection of reality for victims of workplace sexual harassment. Hopefully this will mark a turning point so that soon, Donald Trump will be as wrong about this as he is about almost everything else.
