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The Critical Role of the Bystander in #MeToo Culture

As sexual harassment allegations against prominent figures continue to emerge in this watershed #MeToo moment, one question that employees of all types may have is – “What can I do to help?” In other words, “Given that I’m not harassing anyone, what can I do to help ensure that my workplace is free from sexual harassment?” Quite a lot, as it turns out! In this article, we will discuss the critical role the bystander plays in addressing and preventing incidents of sexual harassment. Our discussion will be structured in two parts: the legal framework addressing whether bystanders have a legal duty to intervene, and ethical and personal considerations facing bystanders considering intervention.   

 

Terminology

Before we proceed, it is helpful to define our terminology. First, a bystander to sexual harassment is a person who witnesses an act of sexual harassment that he or she is not a part of, either as a victim or harasser. If a person believes he or she has been harassed by another person’s actions – even if those actions were directed at someone else – that person is no longer a bystander, but a victim, and he or she is not the subject of our discussion in this article. 

Legal Framework

The general rule in American law is that absent a special relationship, a bystander has no “duty to rescue” another person who is in peril.1 For example, if John sees a child trapped on railroad tracks, John has no legal duty to rescue such a child (i.e., he cannot be prosecuted or otherwise punished for failing to save the child’s life). In other words, a bystander generally has no duty to intervene.  

A similar logic governs sexual harassment in the workplace: there is no legal duty for any bystander to interrupt an ongoing harassment situation. Nonetheless, depending on whether the bystander is a member of management or not, he or she may have a duty to report the harassment (reporting may be seen as a type of bystander intervention). 

The distinction between managerial and non-managerial employees regarding reporting requirements is critical. In the workplace, because a manager is seen as an extension of the employer itself, a bystander who is a manager has a legal duty to report any observed instances of harassment in order to allow the employer to conduct a prompt and effective investigation.2 Managers who fail to report harassment are subjecting their employers to vicarious legal liability for sexual harassment.3 Employers often remind their managerial employees of this duty by inserting it into their employee handbooks and conducting regular anti-harassment training reiterating this point.

In contrast, a bystander who is not a manager is under no legal duty to report observed harassment. Employer policies often encourage – but do not require – employees to report observed harassment. However, employers beware – the lack of a legal duty by non-managers to report harassment does not mean that employers can simply turn a blind eye to harassment happening at their workplace. Instead, an employer may be liable for harassment by non-managerial employees if it is negligent in failing to prevent the harassment from taking place (for example, by not monitoring the workplace, not responding to complaints, etc.).4   

Ethical and Personal Considerations

Okay, so now that we’ve answered the question of whether a bystander must report observed harassment, we can turn to the more interesting question of whether a bystander should intervene and/or report such harassment. The answer to that question, in my opinion, is yes, but it is necessary to discuss some of the significant obstacles that bystanders face when deciding whether to intervene. 

The first obstacle to intervention is the lack of a notion of collective responsibility; that is, bystanders to harassment often assume that someone else will intervene. In response, I would proffer the following: creating a workplace culture that embodies respect and that is harassment-free cannot be completely legislated from the top - though executives and managers can and should model behaviors that support and influence a culture of respect. While management may verbalize a commitment to building a respectful workplace, the creation of culture is a sustained and organic process that takes place over time, through the repeated interaction of all employees at all levels in offices, lunchrooms, the production floor, conference calls and e-mails. Organizational culture may spring from the top, but it is repeatedly reinforced by people in the middle, at the bottom and throughout the organization. In other words, all employees have a role to play in creating a fair and respectful workplace free of sexual harassment. It is a collective responsibility, not just the responsibility of the CEO or management. And part of that collective responsibility means that, whenever possible, employees should act as “good bystanders” and play an active role in de-escalating and ameliorating harassment incidents that occur before them.    

A second significant obstacle to intervention is the fear of retaliation. Bystanders may fear that by becoming involved in a harassment situation, the harasser will turn around and retaliate against them, especially when the harasser is in a position of power in an organization. Bystanders should know that under EEO law, both resisting harassment and intervening on behalf of others being harassed qualify as “protected activities.”5 A witness who intervenes to stop behavior he or she reasonably believes to constitute harassment is protected from retaliation under the law.6 However, this legal protection by itself may not entirely placate a fearful employee: employers must also do their part to demonstrate their whole-hearted and absolute commitment to the non-retaliation provisions of EEO law in their workplace. This will ideally help employees feel supported in taking a stand against harassing behavior. 

So, what are some ways that a bystander who observes a harassment incident can intervene? It is important to note that intervention is not a “one size fits all” response. There may, and should, be different types of intervention depending on what the context of the situation dictates. Here are some suggested methods of intervention:

(1)  Direct Intervention – Succinctly tell the harasser to “knock it off,” or use a similar phrase. Do not engage the harasser any further, since this could aggravate the situation. Bystanders should consider their own safety, and the safety of the victim, before engaging this method. 
 
(2)  Distraction – Do not directly engage the harassing behavior, but try to interrupt the situation in a different way. For example, change the topic of discussion, accidentally spill your coffee, etc.
 
(3)  Ask for Help – If you are reluctant to step in, inform a nearby authority figure and ask him or her to intervene in the harassment.
 
(4)  Check in with the Victim – After the incident, talk privately with the victim and ask if he or she is alright. You may also offer to accompany the victim to a supervisor’s office or Human Resources. 
 
(5)  Document the Situation – Consider jotting down notes of what you observed immediately after the incident. In more egregious cases, you may consider recording the incident, but again, the safety of yourself and the victim is paramount.7

Conclusion

Bystander intervention – whether in the form of reporting the conduct or otherwise intervening with one of the methods outlined above – is becoming increasingly popular in universities and certain sections of the military as a means to combat the growing tide of harassment allegations.8 In fact, the EEOC itself has suggested that bystander intervention training may be an effective means of combating workplace harassment, as it would create a sense of collective responsibility and empower employees with skills needed to interrupt harassment incidents.9 Hopefully, both employers and employees take heed of this insight and bystander intervention becomes an increasingly common response to workplace harassment incidents. 


1 https://injury.findlaw.com/accident-injury-law/specific-legal-duties.html.
2 See Varner v. National Super Markets Inc., 94 F.3d 1209, 1213 (8th Cir. 1996), cert denied, 519 U.S. 1110 (1997) (complaint procedure not effective if it does not require supervisor with knowledge of harassment to report the information to those in position to take appropriate action). See also Wilson v. Tulsa Junior College, 164 F.3d 534, 541 (10th Cir. 1998) (complaint procedure deficient because it only required supervisors to report “formal” as opposed to “informal” complaints of harassment).
3 This is because a manager who fails to report harassment may be removing the possibility of the employer using the Farragher-Ellerth affirmative defense to harassment claims. See https://www.eeoc.gov/policy/docs/harassment.html.
4 https://www.eeoc.gov/laws/types/harassment.cfm.
5 https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#_ftnref75.
6 Id. See also EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015).
7 Loosely adopted from https://www.ihollaback.org/resources/bystander-resources/.
8 See, e.g., http://www.kasap.org/images/files/News/evaluation_of_green_dot.pdf.
9 Chai R. Feldblum and Victoria A. Lipnic, Select Task Force on the Study of Harassment in the Workplace, June 2016, EEOC.gov, https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf.