Sexual Harassment on Social Media and the #MeToo Movement

Over the past three years, I’ve had about a dozen people reach out to me about being sexually harassed relating to their social media businesses and platforms. With more and more brave victims coming out to share their #metoo experience, I thought this post needed to get written.

Social media conference attendees have contacted me about after hours “one on one” business meetings turning into sexual assaults. Two spouses have reached out for help in protecting their rights after finding out their husbands went “Weinstein” at a conference. On the other side of the coin, I’ve also had multiple people reach out who were wrongfully accused of sexual harassment and assault at social media conferences.

While names like Weinstein, Franken, Moore, Trump, Louis C.K., Ratner, and Spacey (just to mention a few), are what most people hear each night on the evening news, I believe we have similar problems in our social media communities. Although I haven’t heard about anyone I know on social media being banned from the local mall, I am seeing some bad dudes doing bad things to women. I have a feeling you have too.

Sexual harassment in the workplace is a big deal. I also think it’s a problem for many people doing business on social media. Although the offline laws do not apply in the same way to this online misconduct, I don’t think it’s difficult to notice the similarities in the end result. Because I’ve always thought that conversation is good, I want to start a conversation and encourage more dialog with you about sexual harassment on our social media business platforms.

One more thing. Almost all of the incoming calls I get concerning sexual harassment involve female victims. As such, I’m writing this post with them in mind. Please keep in mind that I understand that anyone can become a victim when it comes to sexual harassment.

Also, please note that while I am a California lawyer, I’m not your lawyer. No legal advice is being given in this post. What I am trying to do is give you something to think about. I want to give you some ideas and tools to be part of the solution and to help fix this problem.

What Is Workplace Sexual Harassment?

In California, sexual harassment in the workplace might involve one or more of the wrongful acts I discuss below. What you may find interesting is that “sexual motive” isn’t required for conduct to be deemed “sexual harassment” in traditional workplace claims. I think the same applies online.

It doesn’t take much effort to see how the conduct I describe below is as unacceptable in our social media business relationships as it is in our offline worlds. Despite this, sexual harassment online happens daily. Nobody should have to experience the loss of reputation, opportunity and financial losses because she was sexually harassed.

At the state level, California has adopted the Fair Employment and Housing Act (commonly called “FEHA”), which expressly prohibits sexual harassment. Case law has evolved and interpreted how FEHA applies in different factual situations. On the federal level, Title VII of the Civil Rights Act of 1964 makes discrimination on the basis of a person’s sex unlawful. Many states have similar laws.

Quid Pro Quo and Hostile Work Environment Sexual Harassment

Offline: A quid pro quo work-related sexual harassment case happens when a victim’s employment is conditioned on submission to unwelcome sexual advances. A hostile work environment sexual harassment claim happens with the sexual harassment is made hostile, offensive, oppressive, intimidating, or abusive due to pervasive and ongoing sexual harassment.

Online: I’ve been online since 1996 and frankly, have seen just about all there is to see. Recently with live video, there have been too many times where I’ve watched women on a livestream being placed in uncomfortable situations. I’ve watched and even counseled a few friends with ways to deal with inappropriate sexual remarks and comments so that these professionals can continue participating in the business-oriented online activities and streams.

Along those same lines, I’ve also observed and tried to stop sexually focused comments in live chats and blog posts that derailed any value the female participant was trying to originally convey in the post. These women shouldn’t have to deal with this. With the #metoo movement, maybe things will change.

In many of these cases there are no formal employer/employee relationships but I believe the result is the same. The online female business owner’s credibility and ability to build meaningful business relationships is temporarily or permanently derailed, and that’s wrong!

Unwelcome Sexually Derogatory Comments

Offline: This includes harassing behavior in the workplace using, sending or otherwise communicating “epithets, derogatory comments, or slurs.” In California, this includes the use of demeaning, gender-specific terms and cruel practical jokes.

Online: Far too many times during live chat, video, and comments on social media and blog posts, the existence of derogatory comments highjack the conversation. The fact of the matter is that anytime sexual derogatory comments or demeaning gender-specific jokes are used on these platforms, there’s a very good chance that you may be interfering with a female participants ability to make a point, share her products, and build relationships.

You may also, at best, make her uncomfortable. At worst, you may be causing emotional harm to the recipient of your comments and anyone else reading the comments. While I understand you believe you have First Amendment Rights to say what you want, please refrain from doing so when doing business on social media. More often than not, you’re going to be interpreted as an asshole (it’s a legal term- Google it).

Supervisors or Employers May Not Condition Employment on Sex

Offline: Using different levels of power and authority to gain sexual favors is illegal. Consent given by a victim in these situations is invalid. It’s also noted that in California, employers and supervisors may not require employees to submit to or tolerate unwelcome sexual advances as a condition of their employment.

Online: I’ve been contacted by women who shared similar stories about speaking at conferences. They were told that to be considered for a speaking gig, dinner and drinks at a hotel were required (the other speaking spots were filled online).

Another potential client reached out after being offered to be profiled in a chapter of a social media expert’s business book in exchange for spending the weekend at a resort destination. She shouldn’t have ever been put in this position. She declined, took the high road and has gone on with her career. My gut feeling is that she wasn’t the first to be approached by this author.

Each of these instances was business related. Because each of these women declined to accept the conditional business opportunities, we’ll never know how this impacted their companies and careers. The bottom line is that these women should have never been put in these positions in the first place.

There are many other forms of sexual harassment in the workplace that also apply online. I’ll stop with these examples because I think you get my drift.

When doing business online, we all need to be aware of what we say and do. Use my “Deflect, Reflect and Select” approach when engaging with others. It’s just one of many steps you can take to avoid saying something or posting something online that you will later regret.

We all need to lead by example, be respectful to others, and avoid saying or doing anything that would make someone else, especially a woman, feel uncomfortable or threatened. Here are some ways you can do just that.

What can you do when you’ve been sexually harassed online? What can we all do, as a community, when we see this happen?

Document the Wrongdoing: The first thing I recommend is to document what happened. Screenshots are an excellent way to do this.

Report the Wrongdoing: Report the inappropriate behavior to the platform. If the sexual harassment was made by someone employed by a large company, reach out to the company executives or human resource department and report the conduct. Don’t text or email. Send your complaint in writing via FedEx or UPS. This way they will know you have documentation that your complaint was received. This is called “legal notice,” and it’s a big thing in the legal world. It requires companies to take action.

Block The Wrongdoer: Use technology to delete this person from your life. I don’t care who the person is or how important he or she thinks they are. Get them out of your life and report the wrongdoing as I mentioned above.

If the online business related sexual harassment has caused you or your business harm, think about lawyering up. In addition to sexual harassment claims, there are many related causes of action that you may be able to assert against the wrongdoer such as interference with economic relationships, defamation, fraud and emotional distress. I’m only licensed in California so if you’re in another state, click here to find a good lawyer in your state (my recommendation).

Conclusion

Doing business on social media is new to many people. During a recent interview, I even referred to doing business online as being similar to doing business in wild west. On almost a daily basis and in my capacity as a lawyer, I find myself rolling my eyes because of what I see or hear.

But here’s the deal. Regardless of whether doing business online is new or not, the fact of the matter is that common decency and the need to be respectful to others is still mandatory. Free accounts, anonymity and immediate access to others do not give someone the right to be disruptive and cause harm.

I’d like to wrap up this post with the following quote. It really hits home for me.

“Character is doing the right thing when nobody’s looking. There are too many people who think that the only thing that’s right is to get by, and the only thing that’s wrong is to get caught.” J. C. Watts

Mitch is a California lawyer and a contributing expert to Sue Scheff’s new book, “Shame Nation.”