February 10, 2015

Flirting Or Harassment: What’s The Difference?

In the first of a series of posts regarding sexual harassment, guest blogger Valentina Luketa introduces the sticky issue of definition.

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Illustration of clock complementing hour class on her beautiful figure.

Illustration of clock complementing hour class on her beautiful figure.

We all have been there: Someone smiles at you and there is something in their eyes, the way they have brushed up against you, or in the way they mentioned they are free after work.  We all have been in the middle of that conversation, wondering: “Wait, are they flirting with me?” We may have been feeling uncomfortable but unsure of how to proceed not knowing for certain the nature of that “something” and not wanting to make the situation more awkward. Is it flirting or harassment?

After leaving such an encounter troubled we might do what every troubled 21st century individual does: Google it. A quick search of “What is the difference between sexual harassment and flirting” provides one with a number of articles, spanning from academic literature in feminist theory to more pop culture fare, attempting to explain just what precisely is the difference. While these texts vary in their approaches, they all tend to locate the difference between harassment and flirting in the notion of consent. In other words, if you are wondering if that person is making a pass in order to flirt or in order to harass, the answer is: it is how you feel about it.

Flirting Is In The Eyes/Ears Of The Beholder…

If you feel objectified, uncomfortable, cornered, afraid, awkward or anything else on the broad spectrum of negative feelings, you have just been sexually harassed.  The intentions of the person making the comment or gesture are irrelevant in the light of your feelings. Whether they meant to, whether their intentions were to compliment, whether they were ignorant to social niceties, does not matter: if YOU are bothered, it is sexual harassment. Shifting focus to details such as what exactly they said, how exactly they say it, when and where they said it, does not change your experience.

In contrast flirting is a pleasant and exciting exchange that arouses one’s sexual interest in the other person. It is a dialog of playful words and body language that is mutual and consensual. So if you feel excited and eager that this person is giving you attention beyond what is considered a friendly interaction, it is flirting.

…But Where The Beholder Is Standing Matters

How might an outside observer (or perhaps the person making the comment or gesture) know whether someone is the victim of harassment? If you or someone else is experiencing harassment, how might you respond? Recent dialogs regarding what exactly constitutes consent make the above method of defining the situation problematic. How a person responds is not always indicative of whether harassment has occurred. Their silence is not consent, and their agreement or compliance is not necessarily consent, because social power structures play a role in shaping a person’s ability to perceive and interrupt sexual harassment. The recipient might feel obligated to perform as expected, e.g., be flattered by the attention, feel special for being singled out, or be reluctant to interfere with the power dynamic. Or the person might be at a loss for words and simply not have a way to remove themselves from the situation.

Conceptualizing sexual harassment as “in the eyes/ears of the beholder” rather than in the motives of the person making the comment/gesture is intended to counteract the predominate narrative of victim blaming, “boys will be boys” excuses and slut shaming. Consistent with this narrative, the majority of the articles in the Google search position men as perpetrators and women as victims, and this method of identifying sexual harassment is intended to empower women. It is important to note, however, that it is not just men harassing women. This common misconception excludes harassment that occurs between individuals of the same sex, harassment perpetrated by women, harassment of members of sexual orientation minority groups and gender non-conforming individuals, and oversexualization of transgender bodies and children.

No Single Definition= No Single Answer

In the US, sexual harassment was first defined as part of Title VII of the Civil Rights Act of 1964 that governs relationship between an employer and employee in the work space. The Title thus defines sexual harassment:

“Harassment can include …unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.”

The U.S. Equal Opportunity Employment Commission goes on to clarify that sexual harassment can occur between individuals of the same sex and that both victim and harasser can be any gender. It also specifies that harassment is only illegal when it becomes so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Historically sexual harassment was conceptualized as a problem occurring within the workplace and the options a person has for reporting harassment and seeking recourse are still largely restricted to workplace environments.

Only recently has attention shifted to sexual harassment that occurs on streets and in other public spaces. Additionally, sexual harassment on social media platforms and in gaming communities has exposed that the virtual world can be as rife with power dynamics and intimidation tactics as the face-to-face one.

Considering that sexual harassment penetrates every segment of society, it is no wonder that a single definition has not been able to capture it across all contexts.

So Where Does That Leave Us?

So far sexual harassment has been most effectively exposed through the feminist method of “consciousness raising”, where those affected by it talk about their experiences. Through dialog, victims of sexual harassment are assured that they are not alone, receive support, and create ways to overcome the silence around harassment. Such an exploratory and fluid process allows for a broad grasp of the nature of sexual harassment that may be able to inform additional legal definitions and consequences in the future.

Valentina Luketa is a graduate student at Indiana University Bloomington’s Maurer School of Law, pursuing a PhD in Law and Democracy.

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