SEXUAL HARRASSMENT -- FACT v. MYTH

From: nsbrown@zeus.IntNet.net (NS Brown)
Subject: SEXUAL HARRASSMENT -- FACT v. MYTH
Date: 15 Sep 1994 13:43:15 -0400

An explanation of some of the sexual harassment case law

To All:

There's been a great deal of debate about sexual harrassment over the last few weeks on alt.feminism and other newsgroups. Alas, much of it has been debate "springing from a firm base of ignorance," to quote one of my old law professors. Much of the debate has centered on what people think sexual harrassment law is, without regard to what it really is. So, to give everyone (who doesn't already know) a firmer base than ignorance, a quick primer on the law of sexual harrasment under Title VII of the Civil Rights Act. (NOTE: this post will refer specifically to sexual harrassment in the workplace; the same general principles apply in academic settings as well.)

Sexual Harrassment comes in two forms -- "quid pro quo" and "hostile working environment." The former is pretty straight- forward: "sleep with me or you're fired." Essentially, "quid pro quo" harrassment involves making conditions of employment (hiring, promotion, retention, etc.) contingent on the victim's providing sexual favors. Very few people have a problem with this, and I'm not going to spend any more time on it unless someone has questions.

Hostile working environment

"Hostile working environment" harrassment is the one people are really arguing about. So what is it?

"When the workplace is permeated with 'discriminatory intimi- dation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993) (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)).

"'[M]ere utterance of an ... epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe enough to create an OBJECTIVELY hostile or abusive work environment -- an environment that a REASONABLE PERSON would find hostile or abusive -- is beyond Title VII's purview. Like- wise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation." Harris (again, quoting Meritor; ALL CAPS added for emphasis by this writer).

"[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include [a] the frequency of the discriminatory conduct; [b] its severity; [c] whether it is physically threatening or a mere offensive utterance; and [d] whether it unreasonably interferes with an employee's work performance." Harris (logical indicators [a], [b], etc. added by this writer).

This is the law on sexual harrassment, as handed down by a unanimous Supreme Court in 1993. (Justices Scalia and Ginsburg wrote concurring opinions, essentially arguing that only [d] above -- whether the speech/conduct unreasonably interferes with an employee's work performance -- should have been the only guiding criteria necessary. I take a middle view, arguing that [d] should be NECESSARY and that [a], [b] and [c] may be used by the finder-of-fact in making a determination of whether [d] exists. Both concurring Justices agreed that the [d] criteria would have been met in the Harris case, and thus the court found 9-0 in favor of Harris.)

Putting it in layman's terms

So, how can the law of "hostile working environment" be put into layman's terms? Here's my attempt:

HWE -- [a] speech and/or conduct, [b] of a sexually discriminatory nature, [c] which was neither welcomed nor encouraged, [d] committed by or permitted by a superior, [e] which would be so offensive to a reasonable person as to [f] create an abusive working envi- ronment and/or [g] impair his/her job performance.

Piece-by-piece:

• [a] "speech and/or conduct" -- sexual harrassment can be mere words ("dumb ass woman," Harris), words in conjunction with conduct (asking the employee to dig coins out of one's own pants pocket, Harris) or conduct alone (fondling a woman's breast, Weeks v. Greenstein).
• [b] "of a sexually discriminatory nature" -- remember that Title VII IS NOT A SPEECH CODE. This is a discrimination law. The issue is not the content of the speech or the precise nature of the conduct so much as whether that speech/ conduct is directed at the employee on the basis of his/her gender (or has a disparate impact on the basis of gender).
• [c] "which was neither welcomed nor encouraged" -- if the defendant (employer) can show that the plaintiff (employee) welcomed and/or encouraged the speech/conduct, there is no discrimination claim available. This ties in to the Harris requirement that the victim must subjectively have been offended by the speech/conduct. That is, the plaintiff can't argue "Well, I wasn't offended at the time, but after I got fired for stealing I talked to some people and found out that a reasonable person would have been offended, I decided to sue anyway ...."
• [d] "committed by or permitted by a superior" -- again, Title VII IS NOT A SPEECH CODE. It's a discrimination law. Thus, the plaintiff must show that his/her superior "knew or should have known" about the speech/conduct and did not intervene. (Obviously, if the superior is the one doing the harrassment, the requirement is met.) So what does "knew or should have known" mean? It means that "an ordinary, reasonable prudent person in like or similar circumstances" would have known. It means the employer can't say "Yeah, a reasonable supervisor would have known this was going on, but I'm a lousy supervisor and I didn't know, so don't hold me liable ...."
• [e] "would have been so offensive to a reasonable person" -- One of the biggest myths about sexual harrassment law is that "the woman gets to decide what she likes and what she doesn't." Balderdash. The law has always had a "reasonable person" standard (though Harris did away with the previous terminology of "reasonable woman"). It's not enough that a given employee was offended. That employee might, after all, be unreasonably sensitive or thin-skinned. The plaintiff must show that "an ordinary, reasonable, prudent person in like or similar circum- stances" would have been similarly offended. In other words, the plaintiff can't argue "Well, I know a reasonable person would have shrugged this off, but I'm not reasonable and I was offended ...."
• [f] "create an abusive working environment and/or" -- this is an area where the law needs to be developed. I would argue that this element should be conjunctively (and) linked with [g], below. However, Harris seems to indicate a disjunctive (or) link, and until we know better, we ought to assume the more general (or) linkage. So what does this mean? It means an environment which manifests hostility or abuse toward one or more employees, on the basis of his/her/their gender. It means an environment where the employee is distinctly (remember, this is an objective standard) made to feel unwelcome, unwanted, scorned, ridiculed, intimidated ... on the basis of his/her gender. It is, in the words of Justice Scalia, an environment where "working conditions have been DISCRIMINATORILY altered" for some employees. (Emphasis added.) The underlying theory seems to be that the harrasser is attempting to get the victim to either quit, or screw up enough to get fired (though the latter falls under [g], below). It's a matter of "I may have to hire you, but I can make you so miserable you won't want to stay" ... on the basis of gender. Once again, Title VII IS NOT A SPEECH CODE. It's a discrimination law.
• [g] "impair his/her job performance" -- this may be seen as merely an extension of [f] (above), or it may be that [f] is a way to demonstrate this element. Either way, this element implies that the speech/conduct is so offensive that a reasonable person's job performance would be impaired. At this level, we are talking about trying to make life so miserable that the victim will screw up enough to get fired. An example: let's assume that Defendant MegaCorp fired Plaintiff Vicki, citing as its reasoning that "she didn't get the filing done in a regular and orderly manner." Vicki is able to show that the file room was right next to the men's restroom, and that more often than not, when she went to the file room Mr. Jackson would be in the door of the restroom saying "C'mon in and file this, sweetcakes!" Thus, she was reluctant to go back there. Jackson's harrassment impaired her job performance, and if she can show that a superior knew or should have known about the harrassment and didn't intervene, she can recover.

Situation is not as dire as you've heard

That's what sexual harrassment law is, under Title VII. One hopes this has dispelled a few myths and misunderstandings, but a couple of miscellaneous points ought to be noted:

• MYTH -- "I can't afford to even take the chance of getting sued, so I'm going to fire anyone on first complaint. Even if I win the lawsuit, the legal bills will kill me."
• FACT -- The prevailing party in a Title VII action can recover his/her/their/its attorney's fees from the losing party. A claim for attorney's fees must be pled, and there are some (HIGHLY technical) grounds under which it might not be granted. But it is available.
• MYTH -- "This law is the product of radical man-hating feminists."
• FACT -- Gender discrimination was added to the Civil Rights Act of 1964 by men. Indeed, it was added by conservative men who thought it would make the bill fail. It didn't. (And just how many radical man-hating feminists were there in 1964?)
• MYTH -- "Every female employee is a ticking time bomb; there's nothing I can do to protect myself."
• FACT -- A businessperson can protect him/herself quite easily. Develop a sexual harrassment policy which is consistent with the law. (Many companies have instituted truly draconian policies, which is both overkill and unfair to their employees.) Apply that policy consistently and fairly. To quote an old law professor of mine, "You can substantially minimize the likelihood of being hanged for murder by the simple expedient of not killing people."

I hope this helps clarify the law, and will foster a more informed and reasoned discussion of this issue.

Cris