Almost 15 years ago, Jeffrey Rosen argued in “The New Republic” that the solution to sexual harassment was to reframe sexual harassment and reconceptualize it as a violation of privacy, rather than thinking of it in terms of a hostile work environment. His suggestion was rooted in growing concerns about privacy violations in the workplace, the result of electronic surveillance, and other means for identifying sexual harassment.
Was the cure, he asked, worse than the disease? Was there perhaps a better way of thinking about the issues women face in the workplace?
Now 14 years later, we continue to face sexual harassment—on a large and small scale. Meanwhile, we’re also looking at privacy violations of an unprecedented scope on an individual, national, and global level as surveillance technology improves in sophistication and design every year. Tinder’s ex-co-founder receives suggestive and lewd texts while women fight microaggressions in the workplace on a daily level and women in tech struggle to maintain their dignity. Clearly, whatever we’ve been doing to address sexual harassment isn’t working, but is Rosen’s route the right one to take?
Rosen raises a complex issue. Privacy is important, in the workplace as well as outside of it; as we know, sexual harassment often spills outside of the workplace—one need only read the horrific texts sent to Whitney Wolfe after hours for evidence. Surveillance of emails, texts, and other communications sets a troubling precedent, yet many companies already have surveillance frameworks in place to monitor their employees. Not, as he posits, for signs of sexual harassment, but for other issues, like violations of NDAs, signs that employees might be thinking of moving to rival firms, efficiency and productivity monitoring, and other concerns.
Privacy advocates concerned about eroding personal freedoms have condemned these measures. They set potentially dangerous precedents and create slippery slope arguments that make it easier to violate privacy in a wider variety of settings—after all, if an employee’s work-issued cellphone can be monitored, why not a personal phone as well? If an employee’s work email isn’t yielding fruit, who is to say she isn’t using her personal email to send out resumes or violate an NDA, in which case, maybe a company should be taking a look at that as well?
Employees have a right to privacy in their persons and belongings, as dictated under the Bill of Rights, but what happens when they are violating the rights of other employees? As Rosen argues, sexual harassment is a form of privacy violation, but as long-established, it also contributes to the creation of a hostile work environment, which can drive women out of the workplace.
Either way, it’s unacceptable, making it critical to develop effective systems for identifying and fighting sexual harassment, including setting and enforcing diversity statements, training human resources, creating a secure confidential reporting system and, yes, ultimately, monitoring employees—because until the cycle is broken, women will fear retaliation for reporting.
Yet, a balance needs to be struck. Much of the basic monitoring for signs of sexual harassment could be conducted with the use of smart algorithms and other electronic means, allowing human resources personnel or a diversity team to scan for keywords and phrases without actually violating personal privacy. When problems are identified, however, ultimately actual human beings would need to sit down and examine flagged material, creating a large opportunity for privacy violations.
Employees need to understand that their communications on employer-issued equipment are monitored and why this is being done, and human resources departments need to have a framework in place for protecting privacy. That includes training in how to identify sexual harassment that might not be readily apparent—and in working with both suspected victims and perpetrators of sexual harassment to enforce workplace policies. It also includes an imperative to not publish or share materials unless it becomes necessary in the case of a legal suit.
Arguing for restrictions on individual privacy is difficult—but there comes a balance point between individual freedoms and the needs of the commons when the individual’s need must be trumped. As long as sexual harassers can hide behind a barrier of privacy concerns, they can continue to make their coworkers uncomfortable and contribute to the creation of a workplace that doesn’t welcome woman. That’s not just bad for women, it’s bad for business overall, as it discourages women from applying to firms or participating in their companies’ initiatives.
Clearly, surveillance alone is not the solution to the sexual harassment problem. Harassers may take the opportunity to go underground, using other methods of intimidating women at work once they know their employer-controlled modes of communication are monitored. But it’s a good start, and it sends a clear zero-tolerance message. Only, however, when it’s implemented with the correct privacy concerns in mind, and with clear communication about what is being monitored, why, and how, with information on limits and checks put in place to protect privacy.
Without clear legal and ethical boundaries from the start, workplace monitoring for signs of sexual harassment could quickly turn into a privacy nightmare, just as other forms of workplace surveillance already are. Rosen was right to caution companies when it came to applying a solution that might be worse than the original problem, but his argument lacked a strong conclusion: How are we to identify, report, and stop sexual harassment in his imaginary world of tort suits and quiet slaps on the wrist if we can’t keep an eye on what employees are saying, and doing, to each other?