Carol Merchasin
Photo Credit: Alastair Hilton/McAllister-Olivarius

Member-at-Large Jessica Phillips
Photo Credit: Miran Kim

Sexual harassment has become normalized in the music industry. This may be especially true in American orchestras (as we saw with the recent allegations of misconduct at the New York Philharmonic). Reasons for the pervasive nature of this culture include the peculiar power dynamics of orchestras, the close-knit working environment, and the lack of consistent application of prevention and disciplinary action. To truly combat sexual harassment and sexual violence, established orchestras must lead by example, introducing zero-tolerance policies and clear processes for reporting and investigating misconduct. Until then, performers should be aware that a variety of state and federal laws protect them from various forms of misconduct. This piece outlines the most important of these laws.

PART I: What You Should Know about Sexual Harassment

What is Sexual Harassment in the Workplace?

The EEOC defines sexual harassment in this way: “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct 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.” Sexual harassment can inside or outside of the physical workplace and in a variety of circumstances including but not limited to the following:

The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
A victim could be anyone who is affected by the offensive conduct and not solely the person harassed.
While the offensive conduct must be unwelcome, the legal standard for determining what is unwelcome is taken from the perspective of the “reasonable person.”

What is the law?

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Additionally, each state has its own (slightly varying) laws related to harassment. These laws apply to orchestra management and labor organizations. The employer (not the union) is the sole party that can discipline based on the outcome of an investigation into allegations of sexual harassment. Furthermore, the EEOC issued new guidelines in 2024 on the employer’s responsibility to prevent sexual harassment in the workplace.

What is the role of the employer?

The EEOC “strongly encourages” employers to do the following:

have a clear, easy-to-understand anti-harassment policy;
have a safe and effective procedure that employees can use to report harassment. Ideally, employers should offer a range of options for reporting sexual harassment, allowing the employees to avoid conflicts of interest and to feel comfortable in filing reports;
provide recurring training to all employees, including supervisors and managers, about the company’s anti-harassment policy and complaint process; and
take steps to make sure the anti-harassment policy is being followed and the complaint process is working.

What is online vs. in-person harassment?

If you feel that you are subject to sexual harassment online, you can find more information and resources about this from Right to Be.

Training

Make sure your workplace provides proper and effective training, noting that Some state and city laws mandate training, such as New York and New York City. The EEOC says:

“Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.”

Bystander training

The EEOC also states that bystander intervention training shows “significant promise for preventing harassment in the workplace.” Rape, Abuse and Incest National Network (RAINN) has some excellent resources on its website and Right to Be (formerly known as Hollaback!) has an accessible Bystander Intervention they use called “The 5Ds: Distract, Delegate, Direct, Delay, and Document.” It is crucial to come forward promptly when you see harassment: when you do, you interrupt the cycle of behavior, contribute to a zero-tolerance policy, and create a sense of safety in the community.

How to report

You should have options for reporting an incident of sexual harassment or discrimination:

Your employer should post their anti-harassment policy with clear instructions on how to report an incident. This information should be easily accessible to all employees, for example, posted in all common areas, in an employment handbook, or online. Anti-harassment policies should instruct you on how to report the incident and should offer a variety of avenues to do this, such as your personnel manager, Human Resources, or your local union. If you meet with HR or a personnel manager at your workplace, you may bring your union representative with you to the meeting, if you choose to do so.
Because reliving the event can be traumatic, Right to Be suggests that it can be helpful to document all the facts about the incident to help you prepare for a meeting where you report sexual harassment. However, your employer should not require you to make a written statement about the incident to report it. While the following information can help prepare you for the meeting, in no way do you need to know the answers to all the following questions to report the harassment:
- Where and when did it happen?
- What was said and/or done?
- Who else was there? Who else became aware afterward (if anyone)?
- How did it make you feel? Did it result in any impact on your work performance, relationships, confidence, creativity, etc.?
- Is there any record of the harassment? This could include documentation of the actual harassment (for instance, a harassing email).
- Are you aware of other incidents of harassment similar to what you are reporting? Do you know that this person harassed anyone else?

Confidentiality

The power differentials in the orchestra are myriad, and even reporting harassment among peers can be paralyzing. Many fear it will either change their relationships irrevocably, make things worse, or they will lose their job (however, as noted below, federal law prohibits retaliation once you report an incident). It is important to know that not every investigation can be kept completely confidential. Moreover, reporting anonymously may hamper the investigator’s ability to find out what happened. When you report the incident, you can ask the investigator how much confidentiality they can assure you.

What happens in an investigation of a complaint?

According to the EEOC, an employer should conduct a prompt, impartial, and thorough investigation to determine whether harassing conduct occurred and take appropriate action to promote a safe, fair, and productive work environment. What steps to take, what evidence to gather, and who to interview will depend on the particular facts and circumstances of the allegations. Regardless of the size and scope of the investigation, however, some indications of an effective investigation may include the following (excerpted directly from the EEOC):

The employer starts investigating reasonably soon after learning about potential harassment;
The assigned investigator is trained on harassment law and how to investigate harassment allegations;
The assigned investigator is impartial and unbiased;
There is an investigative plan, and that plan is followed;
Steps are taken to make sure neither the complainant nor the alleged harasser can influence the investigation, the investigator, or potential witnesses;
Testimony, evidence, and other helpful information is gathered from relevant witnesses and other sources, such as video cameras, company-provided cell phones, and email servers;
Both the complainant and the alleged harasser are updated on the status of the investigation, as appropriate;
Both the complainant and the alleged harasser are informed about the employer’s conclusions and any actions it plans to take as a result of the investigation; and
Records of harassment complaints, investigations, evidence, and conclusions are preserved.

Retaliation

It is unlawful to retaliate against anyone for bringing a good faith complaint of harassment or participating in any way in an investigation under sexual harassment laws. You can and should report any kind of retaliation–even in cases where your report of harassment wasn’t validated or actionable, retaliation is still illegal.

What can you expect once the investigation is finished?

At the end of an investigation, only the people directly involved may learn the result. Because of the confidentiality of the process, which protects both the complainant and the alleged harasser, other employees may never learn the outcome of the investigation. That doesn’t mean that nothing happened. Often, the result is “inconclusive.” Harassment can be hard to substantiate. That doesn’t mean it isn’t worth reporting what happened. It is possible that this is a pattern of behavior and others have reported a similar experience. (Note that the Employees’ Guide to Workplace Investigations and Aftermath and Defining Workplace Harassment resources from Right to Be will walk you through what you can expect at each point in the process.)

It is important to remember that the employer should not be deciding if the harassment is illegal or not—they should be deciding if it violates their policy,a much lower standard. If you are unhappy with the outcome of an investigation, you may have the option to sue your employer or the perpetrator for damages. It is always easier to prove a pattern of harassment than a single incident; if multiple people are affected, or your own harassment happened repeatedly, your case will be stronger, and your employer may be induced to settle rather than make you go to trial.

Non-Disclosure Agreement (NDA)

A Non-Disclosure Agreement is a legally binding agreement to keep information confidential. An employer should not ask you to sign an NDA unless you make a legal claim and receive a settlement. Whether or not you sign an NDA is something you should discuss with your union representative or legal counsel. You don’t need an attorney to make a report of sexual harassment to an employer, but if you are involved in settling a claim you should consult an attorney.

PART II: Sexual Violence in the Workplace

What is sexual violence?

Of course, any non-consensual sexual act proscribed by federal or state law is also a crime when it happens in the context of the workplace. Such examples can include:

Penetration of the victim’s body, also known as Rape or sexual assault
Attempted rape.
Forcing a victim to perform sexual acts or penetration of the perpetrator’s body.
Unwanted sexual contact/touching
Exposing one’s genitals or naked body to other(s) without consent
Stalking
Making sexual advances and using a power differential to obtain sexual favors

What is the difference between sexual harassment, sexual misconduct, and sexual assault? Sexual harassment generally violates civil law as you have a legal right to a workplace free of discrimination and harassment. Sexual assault can be a criminal offense as well as a violation of civil law. Sexual assault refers to any physical contact or behavior, that occurs without the victim’s consent, including when the victim cannot consent (many resources use the terms “victim” and “survivor” interchangeably to be inclusive of the various ways people who have experienced sexual violence may choose to identify). The definition of “consent” varies by state law but you can find a broad definition here. RAINN defines sexual misconduct as “a non-legal term used to informally describe a broad range of behaviors, which may or may not involve harassment.” For example, some companies may prohibit sexual relationships between coworkers, or between an employee and their boss, even if the relationship is consensual.

Where to report

Whether you report a sexual assault is a personal decision. If you decide to do so, you can report an incident of sexual violence in the workplace in the same way you would report any incident of sexual harassment. You may choose to bring someone with you to help you through the process. If you want to record your interview, you should ask if it is permitted (the legality of this varies from state to state). Additionally, you have several other options to report to law enforcement:

Call 911. If you are in immediate danger, dial 911.
Contact the local police department. Call the direct line of your local police station or visit the station in person.
Visit a medical center. If you are being treated for injuries resulting from sexual assault, tell a medical professional that you wish to report the crime. You can also choose to have a sexual assault forensic exam. To find an appropriate local health facility that is prepared to care for survivors, call the National Sexual Assault Hotline at 800-656-HOPE (4673).
Report through your employer’s sexual harassment policy. Sexual violence which occurs among co-workers, or between a manager and a musician, can be covered by your employer’s sexual harassment policy. It is important to remember that while the person reporting may or may not want the accused to be fired or disciplined, ultimately, it is the employer who will make the final decision about what action(s) they will take, based on the investigation and consistent with actions they have taken in similar policy violations.

How to report

RAINN suggests including the following information when reporting sexual violence. You do not have to be able to remember or articulate all of these things to make a report. It is common for survivors of sexual violence not to remember all the details:

Description of the assault: details about what occurred; sensory experiences, such as what the victim saw, smelled, tasted, heard, or felt during the assault; the victim’s exact words or phrases, quoted directly; details of voluntary alcohol or drug use that demonstrate why this is an issue of increased vulnerability rather than culpability.
Indication of force: coercion, threats, and/or force and the victim’s response during and after; signs of fear including fight, flight, faint, freeze, and fawn reactions from the victim.
Lack of consent: what “no” looked or felt like for the individual victim—noting that silence is not consent and “no” or resistance is communicated through more than just words; any details that show how a consensual encounter turned nonconsensual. For more information about this specific point, consult https://consentawareness.net/.
Signs of premeditation: any interactions that might indicate premeditation or grooming behavior by the perpetrator.
Timeline and victim response: a timeline to show trauma behavior in the context of previous behavior, such as weight loss or gain, changes in routine; and documentation of the victim’s condition as observed.

Conclusion

Sexual harassment and sexual violence may be a pervasive challenge in American orchestras for many reasons. However, the information about laws and resources in this article is intended to be a first step in providing information about the steps that can be taken in each situation, individual and unique as that situation may be.

This guide represents only an overview of the laws and resources that protect individuals faced with sexual harassment or sexual violence situations. Please note that the links provided in the article, as well as the ones listed below, often go into greater detail about the resources available to victims and bystanders.