I attended the MLG Pro Gaming Circuit in San Diego this past July to cheer on my friend Dan Street as he and his teammates played their way to victory in one of the first WoW tournaments in that circuit. Of the competing teams, I believe that only MoB had a female team member. When I logged onto WoWRiot later that evening I couldn’t help but notice that most of the discussion were posts concerning this one girl and her alleged exploits. The remarks the competitive gaming community directed toward her were embarrassing, insulting, and potentially harmful to her reputation. Even though she performed spectacularly, the vocal minority of the internet saw fit to vilify her not based on her ability as a professional gamer, but as a female.
Recently I witnessed another discussion relating to female pro gamers, which triggered this particular post. Women are beginning to help shape the future of the games industry. What was once a niche market for adolescent boys has blossomed magnificently into the mainstream. As a result, people of all genders, ages, and races are participating in the development and enjoyment of gaming; yet many of the professionals in this industry are still predominantly young and male. As women are more readily welcomed to development teams, sexual harassment in the workplace will become an issue. As more female pro gamers enter the spotlight, defamation of character and invasion of privacy will present problems that are sadly nothing new to the entertainment industry at large.
I’m not going to go total “grrlpower” here, but I do think it’s something that isn’t readily discussed in the games industry. This may be an indication that it isn’t much of a problem, but in my experience “failure to discuss” does not equate to “not a problem.” I am therefore going to take a fairly general, practical approach to this discussion that will hopefully benefit entrepreneurs and indie developers that are in a position to supervise their employees. However, I sincerely hope that this post will mostly inform women of their rights in the workplace and in the real world. Due to the breadth of the topic I’ll probably break it down into several separate entries and create a new category.
Sexual Harassment in the Workplace—What is it?
How sexual harassment law is legislated depends on the jurisdiction. In the U.S., sexual harassment and discrimination are considered violations of Title VII of the Civil Rights Act of 1964. Incidentally, this was apparently an unintended result of the legislation; opponents of the Civil Rights Act included “sex” in an attempt to get the legislation kicked out. By a happy mistake, they failed and the legislation was passed with gender becoming one of the protected classes. By contrast, in Japan sexual harassment is a tort that violates a woman’s “personal right”. As I am only intimately familiar with U.S. law on this issue, I’m limiting this discussion to U.S. law and policy. However, I do encourage input and discussion concerning the laws of other countries. Feel free to contact me or post comments, both are always welcome.
According to the U.S. Equal Employment Opportunity Commission, sexual harassment is “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” which “explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.” The employee doesn’t need to show psychological or physical harm to prove that the workplace has become offensive. Innuendo, inappropriate or lewd jokes, and flirting have all been cited as creating offensive work environments when the conduct is pervasive and continuous enough to create a hostile work place. According to the Supreme Court’s interpretation of the EEOC’s regulations, the conduct need not amount to economic “quid pro quo”, where the employee typically loses their position or suffers some other financial harm as retaliation for rebuking or reporting the harassment. See
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). It’s enough that the employee feels sufficiently uncomfortable or intimidated so as to interfere with her ability or desire to work. Bear in mind that the EEOC regulations typically only apply to employers with more than 15 employees. However, most states have their own guidelines and laws for work discrimination and harassment (i.e., CA law AB1825 requires employers with 50+ employees to provide supervisor training regarding sexual harassment and discrimination), so it is important to know your state’s policies and causes of action for sexual harassment.
Employer’s Duty to Prevent Sexual Harassment
First, it should be noted that any sexual harassment in the workplace that results in “tangible employment action” (that is, any change in the harassed employee’s employment status) will always create employer liability. Apart from firing and demotion, this may also include a failure to promote.
In the event that there is no tangible employment action, the standard for determining employer liability is deceptively simple. To avoid liability, 1) the employer must exercise “reasonable care” to prevent and promptly correct any harassment, and 2) the employee must fail to take advantage of preventative measures and corrective opportunities provided by the employer to mitigate further harm.
This means that even if the employer takes reasonable steps to prevent or correct harassment, the employer is not absolved of liability if harassment becomes actionable and the employee has taken the appropriate steps to prevent further harassment. Let’s look at an example:
Example: C Corp. hires Alice as a programmer. During her first week at work, her supervisor, Tom, asks to see her to see him in his office. When she arrives, he closes and locks the door, then propositions her, touches her, and informs her that if she doesn’t agree he’ll make sure she never works again. Alice leaves the office and immediately goes to the HR department, which handles employee harassment complaints. She promptly files a report, and after an investigation C Corp takes reasonable steps to prevent that kind of situation from happening again (i.e., firing Tom and implementing an “open door” policy for meetings of less than 4 people). C Corp would still be liable for Alice’s harassment because only one prong of the test was met—Alice did not fail to take advantage of preventative measures, so C Corp. is vicariously liable.
Keep in mind—harassment is the only form of discrimination where the employer can avoid liability at all, so this isn’t as unfair as it seems relatively speaking.
Reasonable care may include: providing and distributing anti-sexual harassment and sexual harassment policy material to your employees and supervisors; and a comprehensive company policy that sets out specific preventative guidelines, including a clear statement of prohibited conduct; an effective complaint procedure that a) maintains the complainant’s privacy, b) provides assurance that no retaliation will be taken for reporting, and c) provides an efficient investigative policy to ensure prompt resolution of complaints. For a more thorough review of the EEOC’s standards for reasonable employer conduct in sexual harassment cases, check out the EEOC website.
The employee is required to take steps to avoid further injury. This means promptly reporting any incident that makes you feel personally uncomfortable or intimidated, and particularly if someone you work with is treating you in a manner you don’t consider professionally appropriate. Also keep in mind that harassment need not take place at the workplace. Company events, conventions, business trips and other activities where you interact with your co-workers are not suddenly outside the scope of sexual harassment. If you’re harassed in those situations, report it promptly. That kind of behavior is never okay.
As a personal side note to all women in the work force: if you want to be treated professionally, behave like a professional. Know the difference between personal and professional relationships and act accordingly. Remember that in the work place, ALL relationships are professional. Dress appropriately, respect personal space, and remember that you don’t have to be a flirt to be considered friendly and personable. Be assertive and confident at all times—if someone is making you uncomfortable, tell them flat out. Failing to do these things won’t excuse sexual harassment—in rare instances, it won’t even prevent it. But it will hopefully make you less of a target.