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What Anti-Harassment Laws and Work Policies Should We Be Advocating For?
“We can’t regulate your feelings.” It’s a common refrain among free speech advocates and politicians when discussing harassment. But what they don’t understand is that harassment isn’t an issue of ‘feelings’: it’s about safety and equality.
Harassment refers to unwanted behavior that the receiving person finds offensive. In a position where the person is experiencing harassing behavior at work or in receiving a service, the behavior typically needs to be related to a protected characteristic (age, sex, religion, ethnicity, etc.) The unwanted behavior can be almost anything: spoken abuse, comments online, images, facial expression, physical gestures, or banter.
To say that harassment correlates to ‘hurt feelings’ is to minimize the impact of the behavior. When a behavior crosses the line from inappropriate or thoughtlessness to harassment, it also violates the dignity of the person on the receiving end. The victim, in this case, then finds themselves enduring an environment that’s humiliating, degrading, intimidating, or even openly hostile. That’s why anti-harassment laws and work policies are so necessary.
Why Harassment is So Hard to Regulate
Many governments have laws in place to protect people from harassment at work and when trying to access government services. These laws not only ban harassment (by considering it a form of discrimination) but set aside impartial interventions to attempt to stamp out harassment from public spaces altogether. These laws are only effective when enforced, and frankly, statistics show that these laws aren’t effective enough: a study found that 75% of those harassed in the workplace experienced retaliation when they spoke up. Retaliation is also illegal.
The premise of doing away with harassment in real life is hard enough, but it’s even more complicated in the digital realm.
According to a Pew survey from 2017, four in ten Americans have fallen victim to online harassment. Women are more likely to experience these behaviors online (72% of victims are women), but they aren’t always the ones doling out the abuse: men are perpetrators 47.5% of the time. Even those who haven’t experienced it directly (62% of respondents) see it as a problem. What’s worse: harassment is a ‘feature’ not a ‘bug’ of existing online.
The issue with online harassment is that there’s little the law can do about it, particularly when it comes to the more common and ‘less severe’ behaviors like name-calling and purposeful embarrassment. Criminal law is only now taking the issue of online sexual harassment seriously. It was only recently that a type of harassment called ‘revenge porn’ became a crime after years of work by activists — and it’s not yet a crime in every state. In the civil realm, tort law can come with the consequence of re-victimizing those seeking justice without necessarily offering justice.
Whose Job Is It to Stop Harassment?
Updating complex laws and then training all actors within the justice system to recognize and enforce them is an unending task, particularly at the rate with which digital communication changes. The pervasiveness of harassment online coupled with traditional structures’ woeful ability to curb it begs the question: who should be in charge of stopping harassment? Pew’s research also found that internet users believe platforms should lead the charge, but it hasn’t worked out that way.
For the most part, social media companies, who serve as the oft-troubled platforms for gross behavior, aren’t held liable for user-generated content — no matter how egregious. These companies tend to lean on the side of ‘promoting and protecting free speech online’ when tested by lawsuits like Herrick, v. Grindr.
Some platforms have attempted to step up, if only for reasons related to PR. For a while, Instagram became synonymous with harassment, despite its cutesy branding and its founder’s plans to turn it into the “nicest darn place online.” Instagram then launched features like auto-blocking inappropriate comments and launched various “Kindness” programs. At the same time, Instagram requires all or nothing in terms of privacy, and it’s Discovery features make it easy for trolls to start or continue a pile on.
What’s more, the Terms of Service policies they use are both created and executed in an arbitrary way. Log on to Twitter once, and you’ll see whole groups of people complaining about one person being wrongfully de-platformed while others go free.
Can We Win the Battle Against Online Harassment?
In the face of a lack of options, many experts suggest that all internet users should read up on what to do if they’re being harassed. Experts recommend documenting the harassment, creating a paper trail for platform providers, and speaking out (while encouraging others to do the same). These are all great tips, but they perpetuate the same previously seen in preventing sexual harassment in the workplace: they’re placing the onus on the victim of harassment rather than trying to prevent the creation of any more victims.
Ultimately, it’s difficult to say what anti-harassment laws can work, particularly when they tend to re-victimize those whose lives are upended by this epidemic. But what can potentially help is changing the way the law perceives and defines harassment and sexual harassment, in particular. The law creates an understanding that harassment is wrong, but it doesn’t yet do a good job of explaining what constitutes harassment.
Expanded definitions of harassment in both laws and work policies can serve to cover more victims and tell those who witness or even perpetrate harassment that the concept is about far more than ‘feelings’. Anti-harassment rules are about upholding a person’s right to dignity in a public place — and that’s a concept worth legislating.