While there are no guarantees, the best chance an ordinary employee has to ban sexual or any harassment, is a collective agreement -- that is, a union. Now with more women and people-of-color guiding unions, they can bring collective strength (at bargaining tables/in legislatures) to fixing this horrible mess. Remember, unions are democratic vehicles in workplaces where, otherwise, ordinary workers are at the mercy of bosses.
6
I was impressed and fascinated by this evaluation up until the author said:
There are easy ways to start fixing this problem when it comes to sexual harassment. Congress can amend Title VII to ensure the courts interpret its language broadly.
Looking at the way Congress is reshaping our democracy into modern feudalism, tolerating ridiculous behavior from the Chief (Child) Executive, and launching a lion's share of the career harassers we know about, I am pretty doubtful they are going to amend anything along these lines...hmmm, maybe the former DA soon to be elected Senator from Alabama will be the turning point in that direction, right?
2
"In the past half century, employment discrimination claims have come to operate in a fundamentally different legal universe from other kinds of claims. In this universe, the legal system favors employers over employees." Another area where justice favors employers is workmen's compensation. Evidence of that is the ads on TV directed toward rejected injured workers.
1
No, no, no. I am a defense-side employment lawyer. There is NO WAY that grabbing of a woman's breasts would not meet the severe or pervasive standard. Authors makes the assertion that courts "routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts" without any citation to cases involving actual breast-grabbing. This is clickbait and a strawman for the authors' argument against the severe or pervasive standard, which functions quite well and is much more encompassing then the authors claim.
9
Interesting, isn't it, to see how few respond to the question, "How do the courts rule when people defend themselves against perpetrators of a "battery." Let's consider a concrete hypothetical of a young woman trained in martial arts responds to a "touching without permission battery" by emasculating the perpetrator? Now the perpetrator is permanently put out of commission. How would the male-dominated legal system respond? Favoring the right to protect oneself against a battery or negating the right because of sympathy for the permanently disabled perpetrator?
It may be that woman will continue to be victimized until they anticipate the possibility of attack and develop skills in the martial arts. A would-be rapist who loses both eyes and ability to walk will never be able to victimize anybody again!
2
Sexual misconduct is one of the problems women have to handle. It is almost impossible to come to terms with what has happened during this event when no one is believed. The next problem in the process of reporting what has happened is the fine line between what’s “appropriate” and what’s not, according to the laws in place. The past court cases, like the dismissed 2014 court case, discourages women to come forward. There are other sides to this problem. Changing the laws so they fit everyone’s needs is inappropriate. We do not live in a world where everyone is innately good. People may lie about a sexual encounter, but some are genuine. It’s a sticky situation that we need to carefully analyze, but what’s in place now, isn’t working.
2
In all fairness we need to look at sexual harassment. There are men who abuse power and subject woman to uncomfortable situations.
What concerns me today is as a Republic run under laws an accused is (Innocent until proven Guilty) and in todays atmosphere an accusation is a guilty verdict and on top of that the news media are lumping all men accused, in the same group.
Frankly, I do not put the actions between two adults in the same category as an adult walking around shopping malls looking for underaged girls. Nor do I see an advance from one single person to another wanting to have natural sex is wrong. If the advancement is rejected and continues it’s harassment.
My wife of 30 plus years states “There are no victims only volunteers” as a woman if you are going to put it out there what kind of consequence do you expect.
So before everyone gets their nickers in a twist, look at the whole story before condemning every man who touches a woman as being a filthy animal who should be shunned by society.
Before I married my wife, I was one of those filthy animals.
The line between severe and a simple misconduct is, unfortunately, rather grey and blurry. Workplaces have standards to uphold when it comes to an employees safety, and in a case where someone makes comments on raping another employee, it should be considered severe. No threat as intense as that should be blown off by the court, and no situation where an employee inappropriately touches another without their consent should be a nonserious case. At any time it's damaging or demeaning to someone they should have consequences of some kind.
Obviously, some things aren't big enough to bring to court such as a simple flirtation or touch on the shoulder. Although, many situations far beyond the appropriate work behavior are being ignored. There's an easy way to stop ignoring these peoples harassment cases and the only thing holding it back is ignorance.
...and so we pass from considering the outrageous behavior of Moore and Weinstein to much lesser offenses by liberal icons Conyers, Frank, Keillor. False equivalency reigns. The GoP could not have orchestrated the media any better. The Fox debacle is swept under the rugs, its newscasters rushing to charge, vindicate and forget.
A few high profile cases obscure a multitude of abuses.
For 30 years I was a Harassment Officer at a huge multilateral institution. Harassment was all too frequent. Reported harassment was rare. Cases decided in favor of plaintiffs rarer. The few courageous women (and witnesses) who brought egregious cases despite the threat of retribution were essential but not sufficient for institutional health and female employee protection.
The institution had a strong grievance process relative to the norm. But it was not enough.
The lessons are clear. Institutions must change. Grievance processes strengthened. The benefit of the doubt accorded victims by an independent HR. Support of institutional/outside lawyers provided. Appeals permitted. Records of repeat offenders-- guilty or alleged-- not hidden away in confidential archives. Focus broadened to include the private sector where the problem also festers. Periodic surveys within and across institutions reported publicly. A few public hangings.
The risk is that in 6 months nothing will have changed while the abuses continue --history and serial abuse repeating itself.
3
While the focus must not anytime and forever blur the preying 'picture' and thereby err in its punishing 'algorithm', it is humanly vital for the premise to be impartial and even impersonal, so as to keep off from justicing any importunity or impropriety. This is most relevant in conflicting parties not very much apart across the scale/terrain of '(ad)vantage'.
According to the U.S. Dept. of Justice, "Sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape." Groping someone's breasts without consent would seem to fall into the "fondling" category, and therefore should be prosecuted as such.
4
“In fact, courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts.” The authors should have cited/described these routine cases, rather than to have merely cited the case that gave birth to the severe or pervasive standard. No doubt that too many judges have horrifically misapplied that standard, but what appears to be the authors’ broad (and possibly exaggerated) pronouncement that a sworn allegation by a woman that her boss grabbed her breasts will, as a rule, not suffice to get her a trial by jury is not well supported, even by a specific representative example, in this piece. There are reasonable arguments for and against Congress’s reviewing the standard - how much do we want to turn the statute into a human interaction civility code? But, in any event, responsibility lies with the appellate courts to pointedly instruct (as the law requires) that severity and pervasiveness are factual questions that are to be determined by juries, and not by how the judge perceives it, unless it is beyond doubt that no reasonable juror could find the conduct severe or pervasive. It is noteworthy that it is not necessary to show severity or pervasiveness to prevail on a sexual harassment claim brought pursuant to the New York City Human Rights Law, and that law seems to be working well.
3
Exactly. This piece is extremely misleading.
If an employee grabs another employee's breast once, and the company punishes the grabber, then the grabee might, but most likely will not, have an actionable claim against the company because the company did not permit a "hostile work environment" to exist because the harassment was not "severe and pervasive." It is possible that some Circuits might consider this sufficiently severe, but I doubt it.
If an employee grabs another employee's breast twice a day for three months and there is evidence the employer knew about it, then that employee will likely have a cause of action, because the conduct was sufficiently "severe and pervasive" to create a hostile work environment.
In contrast, one rape is likely severe enough to sustain a claim, because that conduct is extremely severe.
Same conduct. Always "harassment." Never okay. Only legally actionable when there is enough harassment to hold the employer liable.
Signed, a former law clerk to a federal judge who has written her share of orders granting and denying summary judgment on employment discrimination claims.
5
The point of the article is why should there be an overlaid "severe and pervasive" standard at all? I know of no other transgression where qualitative adjectives are required to make it "count". Let's look at "mugging", which a garden variety dictionary defines as "the act of attacking and robbing in a public place". We don't stop and say, "look, the mugger only got 10 bucks out of you and didn't mug your neighbors and friends, so you know what? It wasn't severe and pervasive enough - we're gonna let him go". Harassment already has a qualitative element to it, so it makes even less sense to add that standard. Harassing one person should be enough -- why does it have to be "pervasive"? It's okay to harass one employee, as long as you don't do it to everyone? Alright then, I guess it's okay to murder, mug, or steal, as long as you don't do it to everyone?
1
So let me get this straight, you think the article is "misleading", but your example of a "real" harassment case is one where "an employee grabs another employee's breast twice a day for three months and there is evidence the employer knew about it"?!!!
Yah, that's a pretty easy bar to get over....
2
I was accused of sexually harassing an employee for commenting on how her watch looked nice (after she'd gone around showing it to everyone else). I guess I wasn't the person she was trying to impress = double standard?
3
Equivalent racism almost never brings negative consequences. This storm over women’s rights has been unaccompanied by the shame it ought to produce for whites’ racist conduct. That is telling and disturbing as a portent that racism will continue to be ignored and indeed tolerated.
1
Despite its absurd title, the article almost correctly identifies
a major but much more boring sounding problem here. And this is that the Supreme Court has made a total mess of the rules judges are supposed to follow when deciding whether to dismiss a case before it goes to the jury (ie the rules for granting summary judgment.)
As the authors correctly say, the Supreme Court forbids judges from weighing evidence when deciding whether to send a case to the jury. What the authors don’t say is that the Supreme Court nevertheless requires judges to determine whether the evidence is sufficient such that it could persuade a reasonable jury. In other words, judges are obligated to evaluate the sufficiency of the evidence without weighing it. They must not decide whether the plaintiff’s evidence is persuasive and yet they must be persuaded that a jury find it persuasive. They have to make a factual decision about the sufficiency of the facts but judges supposedly can’t weigh those same facts. (Even the right winger Rehnquist said this is impractical and makes little sense)
So if the authors are correct that judges are throwing out too many cases, then this muddled state of the law is a big factor (much more so than simply that judges are unelected and have job security).
And it seems ironic that the authors provide a total sample size of 4-5 cases as sufficient evidence for a headline in The New York Times that it isn’t harassment to grab someone’s breasts at work
3
If you hooked up every male boss from the 60's, 70's, and 80's to a lie detector and asked him if he had touched, talked to, or treated his female employees as personal sex toys, at least 75% would have to admit it - or fail. That's how it was back then. And still is today, evidently.
1
So Franken is only guilty because he is a Democrat?
POLITICS
Pelosi Calls on Conyers to Resign After an Accuser Details Her Charges
By YAMICHE ALCINDOR NOV. 30, 2017
This is exactly why things are about to get much, much WORSE for women in this country.
Democrats throw their accused under the bus because, at least, some Democrats really do believe that such behavior is wrong.
Republicans, on the other hand, will use such offenses against Democrats while continuing to completely embrace Republicans who are guilty of the exact same conduct because sexual assault is, to Republicans, a "family value" that must be defended.
2
excusing sexual harassment is like saying men are driven by their sexual needs and can't help themselves. Men know when they are crossing the line, and they know they will be believed if a woman complains. That the courts back them up in this fantasy is an outrage.
There are some men who don't participate in this conduct. Somehow they still manage to have relationships with women, both in the workplace, and at home. Why is it that other men must make excuses for those who transgress?
Perhaps it's time to ask the ones who experience sexual harassment to define it, rather than allowing the harassers to make the rules.
2
There is no excuse for forcing anyone into a sexual situation with threats.
But all of this assumes the accuser is telling the truth.
Some years ago I was single and had a girlfriend.
Without my knowledge she got a credit card in my name with her as authorized user and ran up a bill of some $10,000. She also forged my signature on a real estate contract selling on of my properties to her at a bargain price.
I found out. Broke up with her and reported her to the police.
She retaliated by filing a Domestic Violence claim against her. She claimed I had made death threats and had a friend "witness " those imaginary threats.
Some $30,000 of legal fees later the case was dismissed. Mostly because another friend of hers told the truth.
She fled the state.
There are some wicked women out there too who might just make up a sexual harassment claim because they didn't get the promotion they thought they deserved.
3
Unwanted touching is still assault. Why the women didn't pursue civil remedies for assault/sexual assault is beyond me.
1
Another op-ed writer who insists, in the interest of generating an emotional response and creating a salacious headline, conflates and distorts critical and important terms and concepts. "Grabbing a woman's breasts" is not "sexual harassment", it is "sexual assault" that MAY be part of a campaign of harassing someone BECAUSE of their sex. Sexual harassment is not harassment for the purpose of sex, but harassment BECAUSE of your sex. "Harassment" is to cause someone to feel harassed, which implies it be more than just once, and probably more than just a few times. All people are harassed at work, that is what bosses do and why they call it work, but is the harassment particularly based on the sex of the person or part and partial to a dysfunctional workplace? Women feel harassed at work, but is it because of their sex (which can, of course, be FOR sex) or because it's just work?
1
Sexual harassment is wrong, morally, legally and ethically.
Entertainers like Charlie Rose, Matt Lauer, Kevin Spacey, Louis C.K., etc and company are getting what they deserve.
But only sort of.
These entertainer cases are about all about economics, not morality or legality or ethics.
Entertainers can be fired for violating the "don't make us look bad" clause in their contracts.
But after they pay off their accusers, all these entertainers will still be rich, privileged white men (none of them is getting the Cosby treatment). In fact, one could argue in court that if a woman took the money in return for her silence, even though this probably seemed like her best option, she has weakened her case in a criminal court.
Meanwhile, most of the privileged white men who are accused of violent sexual assaults, including against children, will probably get off free because a) "She said, he said" cases ARE difficult to prove in criminal court and b) because when you mix sexual harassment claims with sexual assault claims, EVERYONE's claims are heard a little less, especially those of children and young women who don't have the ability to be heard among the masses.
1
Let us hope that they keep it as " severe or pervasive". Otherwise all this sexual harassment hype is going to go on forever. We need to keep all things in proper perspective. Just being offended is not harassment.
1
I can't help believe somewhere in this discussion, fully aware of being scolded for 'Blaming the Victim', there needs to be mention of girls being allowed to dress wearing skimpy short-shorts, etc., etc, or like cheerleaders, etc., etc. as they head off to school? Where is the condemnation of parents succumbing to the whims of the advertising industry? What's the message boys are getting? Last year at Duke University, girls were invited to attend a Fraternity Party dressed like prostitutes. And guess what? Yes, plenty obliged. In a perfect world, no problem. But we all know this world is far from perfect.
1
How is conduct that is Criminal a grey area with regard to harassment? what is considered severe and pervasive is a question of fact and one which can vary based on geography and the passage of time. grabbing breasts forced touching of the perpetrators genitals is a salt and Battery. It is sexual assault and battery. Criminal conduct. I think most reasonable people would agree that that severe and pervasive. It is a question of fact. Expert testimony can be brought to bear as to the traumatic nature of such experiences. The victims themselves and other witnesses can testify as to the impact that these acts of had. I fear this column is misleading and would discourage people from reporting. This is an opinion piece not a factual piece. It is not a comprehensive legal analysis.
I'm wondering where all of this is going. Serious sexual assault is a genuine problem and a crime but there is a big grey area and calls for men to just become different is unlikely to happen. Leopard's don't change their spots. Are we heading towards a more segregated society along gender lines? Like the Middle East. Should women only be allowed to be examined by female doctors for example? I appreciate that laws should be in place and acted on to stop sexual assault but the interaction between men and women has always been a complicated and nuanced area.
3
The author is suggesting Congress can act? Hello? Have you read about the money set aside to deal with sexual harrasment in Congress? Congress is incapable of action - period. It seems like we need a case that goes before the courts that helps to kind of retry some of these cases.
"She said, he said" is not addressed here. Why not?
The recommendation made in this article to address the problem of sexual harassment being too difficult to prove: "There are easy ways to start fixing this problem when it comes to sexual harassment. Congress can amend Title VII to ensure the courts interpret its language broadly."
Recently, the Washington Post published a story about how a woman who falsely claimed to The Washington Post that Roy Moore, the Republican U.S. Senate candidate in Alabama, impregnated her as a teenager.
How many male defendants falsely accused of sexual harassment have the resources possessed by the Washington Post to root out the truth?
How would Sandra F. Sperino, associate dean of faculty at the University of Cincinnati College of Law, and Suja A. Thomas, a professor at the University of Illinois College of Law address this magnified problem for male victims if Congress responds as they propose? And, please don't cite some fictitious statistics that this is a small problem. For the individual male defendant that is falsely accused, it is a very big problem - he can easily lose his job and his career.
4
It is a lot more than simple sexual harassment. Our laws should better protect workers from dictatorial behavior in the workplace, public or private. A boss should be responsible for everything he does on the job.
Our precepts of "freedom and justice" end when you walk in the door at work.
Should it be this way?
If the Old Guys in Congress do write more effective laws to control sexual harassment in the workplace, what are the odds of Clarence Thomas finding the law constitutional?
1
Lawyers Fair Employment Act 2018!
Perhaps a more common sense appraisal of harassment would be asking yourself" would my spouse approve of my actions if they were a witness?"....
How ironic to read the NYT posting an editorial in which it does NOT support courts putting their spin on legislation passed by Congress. One would have that this is the preferred means of achieving certain goals not available through the legislative process or ballot box, to judge from any number of cases.
That being said, however, there is a lot of danger in writing specifically tailored laws that govern every possible personal human interaction, as not only are the laws subject to interpretation - and rightly so, I believe, the preceding not withstanding - but so is the conduct in question itself. Clearly certain acts such as rape are obvious enough, but when one gets into the area of passing remarks or jokes or other behavior such as asking someone for a date, when do we wish to have crassness cross into legally tortious matters? Can one remark make for a law suit? (Or do we use the perhaps more mature "pervasive" standard to keep every single slight or stupidity from being a judicial matter?) At some point, it is clear that the courts, and SCOTUS in particular, have sought to weave a reasonable course so as to not turn every slight into a judicial matter. That is now how a society could function.
2
The ugly spectre that haunts the land is rarely spoken of. We speak of aural harassment. It begins in the quiet morning hours, the first birds awakening, the smell of coffee brewing...then the assault. The morning yentas have begun the daily polluting. Never in the annals of human endeavor have so many been so brain-damaged for so long by so few. The damage continues into the afternoons with the Queen of the Wide Set, featuring insipid book reviews for those who have no reading comprehension, recipes for those whose weight fluctuates like an oscilloscope, and sundry other nonsenses for the merely intelligence-challenged. Finally the nightly assault of the all-the-same-host/comics.. Tired, repetitive acts of guys in expensive suits who all the while are wondering when they will be outed for their frat boy antics, or for their complicity in the nomination of the wicked witch of the west wing. High crimes indeed. If I may paraphrase, we suggest you all drop by, turn on and tune out.
This is why the "rough justice" currently claiming the likes of Charlie Rose, Matt Lauer, Harvey Weinstein, et al., is so refreshing to see. It shifts the burden of what to do about conduct that doesn't meet the legal standard for actionable harassment onto the pathetic men who perpetrate it: if they are truly innocent, let them sue their employers and accusers for vindication.
Rape is a felony and must not be treated as sexual harassment EVER! It does not matter where the rape occurs, it is a felony and needs to be prosecuted. It is insulting to rape survivors and infuriating to see harassment equated with rape.
We the People of the USA get to define our laws. We get to define what is harassment and what is not via the law making process. It is time to make our laws clear cut, to the point, and not open to artful, creative interpretation by judges, victims, or perps. There also needs to be a strict time limit for bringing charges.
So "we" can wrong our hands and moan over hoe horrible all this is, but at the end of the day, we need to be in the ear of our elected representatives telling them how we want our laws to read.
Why leave the amendment of Title VII to merely ensuring the courts "interpret its language broadly?" Spell it all out; write down every last little move or word that we consider sexual harassment.
Ask us what we don't want to suffer; then include those things in the wording. And if someone does touch us or say something or leave a note or give us grief one time -- not several or a bunch -- find that person guilty.
Who are you to tell me, who was there, whether or not I was sexually harassed, Your Honor?
I don’t understand how this was a) written by law professors or b) published in the Times. This article is totally misleading.
When courts evaluate “harassment claims” in this context, they are not making a determination as to whether each action constitutes “harassment” or meets a legal definition of “harassment.” That is simply incorrect. That the authors keep calling these “harassment claims” rather than “employment discrimination claims” is weird and misleading. Title VII, the statute under which these claims are made, is designed to let an employee hold the employer liable for the act of its employees. But how do we hold the employer responsible for acts that it does not direct or control? The law does not provide that an employer is instantly liable when its employee performs an act of “harassment.” The law provides that employers cannot take an adverse employment action against employees. In the gender discrimination context, this means the employer cannot allow a “hostile work environment” to exist. There must be a standard for what constitutes a hostile environment; if not, employers would always be liable for a single intentional tort of their employees that is outside the scope of their job, which is contrary to basic principles of vicarious liability. It also gives the employer the opportunity to and requires the employer to stop bad conduct. A hostile work environment is one where the harassing conduct (grabs, comments) is ‘severe and pervasive.’
1
Did I miss the specifics for the case(s) where a court found that grabbing a co-worker's breast is not sexual harassment?
1
If we are dependent on Congress to amend Title VII, all is lost.
2
Trump and Moore deny all accusations of harassment.: Rose and
Weinstein admitted to harassment charges and were fired. Franken is in
limbo with the Senate, but has not resigned. Lauer was fired, but
at this time has not admitted to any charge. The rule of the
day seems to be accusations win, without the baggage of
proof. Welcome to the 2017 version of the Salem
Witch Trials
2
@richard slimowitz - Weinstein has continues to say everything was consensual which means he's not disputing they took place. Early this morning, Lauer has admitted to some of the charges. Franken has admitted to two charges, but in no way do they compare with the others you mention.
Further, it's ridiculous you use the comparison to the Salem Witch Trials, where men in government killed mostly women (and a few men), to gain their property -- once someone was accused of witchcraft the state could take possession of all of their property).
1
How many of these judges, who are presumably white men, are excluding acts that they have performed as not being actionable?
As Hillary Clinton said: Women should be believed...unless they are accusing Bill.
@Piper Rose - By saying that, you're blaming a woman for a man's bad behavior.
Hillary forgave her husband for adulterous affairs, which is quite different.
2
Outside of 'severe' acts, workplace presentations during the Anita Hill Era informed employees that an uninvited advance is not sexual harassment. If the person says, in essence, "Don't do that" and you do it again - that's sexual harassment.
You know, if someone grabs a part of your body, you could just call the police. That would get everyone's attention.
1
@Marika: Breast grabbing is a criminal assault, whether perpetrated by a stranger on the street or your boss on the job. It can be reported to the police either way, and your boss has no insulation from prosecution just because he did it in the workplace. The issue highlighted by this piece is whether your employer can be held CIVILLY liable for what your boss did, and thus be forced to pay you money or otherwise protect you by, say, removing him from the job. At the time of my retirement some years ago (after going on 40 years as a labor/employment lawyer), the federal courts were all over the lot on how much sexual behavior there had to be (and how bad) to impose civil liability on an employer for what its employees did to their subordinates or their coworkers. From this piece, it sounds like that situation has not gotten any better. And the current court packing under the Trump administration is likely to make it considerably worse.
2
We need to change the language, before we change the law. Sexual harassment just doesn't cut it.
1
“Grabbing” a woman’s breasts may not have constituted sexual harassment, but it could constitute the civil and criminal wrongs of battery. Such conduct could result in a term of imprisonment and, in the former, the award
of compensatory and punitive damages.
The cases and incidents referred to take place prior to 2012. In 2012 the Justice Department revised the definition of rape to be far more inclusive of what constitutes rape (lack of consent). What type of stories have emerged in the last 10 years? Has Justice department guidelines not led to the 'college rape' debacle as enforced through title IX?
https://www.justice.gov/archives/opa/blog/updated-definition-rape
1
Maybe not legally harassment but most certainly shameful adolescent behavior that deserves certain chastisement lest it escalate into something dangerously worse.
1
What are the chances that fresh flocks of daring dudes would fruitfully engage in a seamless transition forward from good-bad-or-whatever-is-now to better-later-on, including laws, law and order, and law abidance-cum-enforcement, from among themselves? What are the chances that their feats would forbear force, fear or freakiness? Cooperation, consensus or continuity-- what are the chances that these would cease to be casualties of oversight, overindulgence and overbearing?
Wonder what might have happened if that woman --- or any of the current "Me2ers" had filed charges of simple assault instead of sexual harassment?
The problem is that "simple assault" charges are filed against the perpetrator, and the penalty is jail time.
"Sexual harassment" charges are filed against the employer, and the penalty is financial payment.
I'm not saying that women claim sexual harassment for the money--most of us would prefer to work for our money.
But the difference between assault and harassment is whether or not the employer is on the hook.
Some males engage in similar behavior even after they are appointed to the bench. Many years ago I was completing a clerkship in MA and traveled to another state for a job interview with 2 federal judges. Instead of conducting a normal job interview for the advertised position in their circuit, they verbally baited and harassed me by "complaining" about an assistant U.S. attorney who they characterized as a "feminist" who argued with them in court and (allegedly) refused to wear a bra. One of the judges walked out in the middle of my "interview," leaving me alone with his (much taller and much heavier) colleague. I was becoming increasingly uncomfortable, which was obviously their goal. After it was over, I looked up the name and contact info for the chief judge of their district and wrote a letter withdrawing my application for the position after describing what had just taken place. This scenario had nothing to do with sex, male libido, or "playful banter." It was disgusting behavior by two older men who had nothing to gain other than the petty thrill of trying to intimidate and humiliate a much younger (and much better educated) woman.
Of course this incident pales in comparison with the horrendous sexual harassment experiences we've heard about recently. But the underlying power dynamics are quite similar. Why expect judges (or politicians) to hold these men accountable?
1
The worst and most pervasive form of sexual harassment is when the man in power shows or hints interest in a polite and respectful way and then WITHHOLDS any help, hiring, funding, promotion, or even contact until the female "gets the message" and do as he wants. How can a woman fight this?
Is like someone strangles you with no fingerprints.
1
@alexgri - If that's the situation, perhaps you'd want to look for a new job, as unfair as that may feel. It's better to leave a toxic environment if there's no reasonable solution.
Women too must have jobs and work to earn money to eat and put a roof over their heads. Often they are supporting their dependent children.
Why must women tolerate harassment and sexual abuse within their work places in order to do so? This must stop. It is called basic survival.
3
Misleading headline. Grabbing breasts is criminal sexual assault, even if it is not technically civil sexual harassment. There should be a distinction made. We have a legal system that - guess what - was written by and for men and changing those laws are a long and difficult process that includes needing women in power positions from law makers to judges.
Congress COULD amend Title XI but does anyone seriously think these entitled men will do so?
We are required to take, and pass, a one-hour on-line course in Sexual Harassment every year.
We always joke that you can pass the test at the end by simply answering "this isn't sexual harassment" to ever question/example. Really.
1
"There are easy ways to start fixing this problem . . ."
In my mind, one such way is for me and my gay comrades to put the moves on any and every straight man over the age of 18 we find attractive. Since what we'd be doing isn't (yet) sexual harassment and assaulting a gay man is a hate crime in many states, we're in like sin!
The gym is going to be SO much more fun now. Am I right, ladies?
2
And people wonder why more women don't come forward. Sheesh!
1
Why is it that all of the others accused get fired or step down after allegations, but Trump merely shrugs it off???
1
There is a sex crime titled “forcible touching” in New York. Arrest and conviction for this Class A Misdemeanor can result in up to a year in jail.
Male Airline pilots are next on the chopping block followed by male Dr's and professional sport athletes and their announcers in the booth...enough material to close out the decade.
This article answers all of thr armchair analysts who ask why women don't come forward when abuse occurs. Seriously, could we possibly have a more sexist approach to sexual harrassment on the job?
What a terrible headline. Now, every man who needed the least bit of encouragement will not read the full article and will take it as license to harass every woman in sight. It could have been written something like this: Sexual Harassment Laws Need Strengthening. I feel that the editor just wanted shock value, at the expense of the safety and well-being of women.
Clearly we need more female judges.
14
Sperino: "Congress can amend Title VII to ensure the courts interpret its language broadly."
That's too narrow a recommendation. Sperino should be looking at the broader war against jury trials and asking what can be done about that.
2017-11-30 04:19:01 UTC
“courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts” Thirty years ago, I was an unemployment insurance claims examiner, and the above actions by an employer would have been considered sexual harassment and a compelling reason for quitting a job under the unemployment insurance law, if the charges could be proven by preponderance of evidence. The federal judiciary is way behind the times and more Equal Opportunity cases should be litigated to get some new precedents more in line with reality and current norms.
Trotting out a decades-old red-herring example is not a good way to start an argument.
We are close to reaching a point of no-return legal paralysis between the sexes, and this article does neither side any favors.
The truth is, much of the problem is caused by $400-$1000/hour lawyers themselves. Who can afford to hire a lawyer when you are middle-class? Meanwhile, those who can afford it, Gretchen Carlson, get staggeringly inappropropirate settlements for exaggerated sufferings.
If women want to further sterilize male-female interactions by making everything potentially litigious, go right ahead. I'll become a monk.
There was a female at work, attractive, who would look at me and wink with a big smile. Several times a week when we weren't around anyone else. I was happily married. If that ever happens again, am I being harassed?
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@Bob Milnever - That depends. Have you told her to stop doing that?
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No, I always liked it. I never felt harassed. Made me feel attractive. Had I not been married, I would have responded. This current spate of come-ons in the news made me think back and wonder if it would be grounds for harassment if it happened to me today. Alas, it has not happened since.
A quick unscientific scan of responses to this article seems to show that most commenters are ...men.
Shocker.
For all your bloviating "in my experience as a blah blah blah..." and this incessant wave of fallen icons you still miss a significant point. Most cases of sexual harassment in the work place are still never reported and many that are reported are still dismissed internally by bumbling HR departments.
Most victims adjudicate their own cases by eventually leaving the company after finding a new job like I did.
I was the victim of an attempted rape on a business trip. The perpetrator was a man my company did business with. When I reported it I was told that little could be done and why didn't I report it to the police? The legal system does not support victims. The man most likely would not have been prosecuted. If it is hard to "prove" rape was non consensual, how is it possible to "prove" attempted rape? My company threatened to fire me if I didn't shut up about my assault and after filing an EEOC complaint I was told that the EEOC often rules in favor of the company and not the employee.
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...and if you had reported and fought it all the way through court? you would have been blacklisted. I admire people who are willing to take that on, to create laws that at least purport to protect the rest of us for the future. But the sad reality is they pay a price; those women will have a hard time finding another job. Another reason why most of us just, sadly, move on and don't report.
I wonder, when men have removed their pants or women their dress and are in their under wear, is that act "harassment? Is there standard by which covered genitalia is provocative enough to be harassment. Or, is there a standard that uncovered genitalia by its nature is harassment. What determines this? Intent, situation, norms, preponderance of things?
Obvious examples are swimming suits, toweled attire, nudist beaches, yoga pants, thongs, locker-room interviews, a myriad of situations where there could be alternate inferences as to harassment in attire or lack of it.
The Times seems to have a hard time distinguishing between sexual harassment and sexual assault. They are not the same. Touching a woman's breasts or buttocks, even once, without consent, is the crime of sexual assault. It's not as serious as rape, but it's still a crime. Touching a shoulder or arm without consent might not be sexual assault but it's still the tort of battery. Sexual harassment involves more than a single event - it's a continuous series of events that create an atmosphere that makes it hard to work. The reason women apparently prefer to charge sexual harassment rather than the much easier charge of sexual assault or battery is because sexual harassment makes the employer liable and sexual assault or battery only leaves the assaulter or batterer liable.
Reform is absolutely necessary but It's one thing to redefine the laws and another to open them to "broad" interpretation. Grabbing a workers breasts is very different from calling her a dumb blonde. Every annoyance cannot be harassment. If so you do a disservice to anyone whose job and safety is truly threatened.
Grabbing breasts against your will is assault, period. There are some very good models out there for what is/isn't sexual harassment, sexual assault, improper conduct, etc. in the workplace and these should be highlighted. The Defense Department, for example, although it has its own judicial processes, the basics are there.
Now that the justice system is being corrupted by the appointment of Republican stooges, I think we can see justice for women go out the door. They are appointing men who will change the face of our justice system to male and white.
"In fact, courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts." As a judge, I read the fact patterns you presented three times. None of the cases cited involved grabbing anyone's breasts. Maybe there are indeed such cases (this is not my area of practice); if so, why didn't you cite an example to support the otherwise sensational headline?
We all learned in law school that anyone who intentionally touches you without your permission, in a harmful or offensive manner, can civilly be charged with battery. So a person who has been subjected to unwanted physical contact has a remedy available, regardless of sexual harassment laws.
You cite no evidence that judges, with "lifelong job security and powerful positions," are somehow ill-fit to interpret and apply Congressional legislation, new or existing. These same people routinely interpret OSHA, ERISA, ADAA and other worker-oriented statutory schemes. That's their job. As you note in your penultimate paragraph, Congress can always act to clarify its intent, where it is not satisfied with current judicial interpretation. The remedy is NOT for judges to simply ignore existing precedent; as a law school dean, you should know this.
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Bill McGrath in the NYT Picks, you ask: "How do we prevent pernicious behavior without stifling the sexual dynamic that will always be a part of human behavior" Answer: you keep it out of the workplace. How? If it's something you wouldn't do with a colleague in public, then you shouldn't be doing it in private. Period.
Not EVERYTHNG is sexual harassment.
This has gotten way out of hand to the point of silliness.
Never a big issue until 2017?
There money to be made so..........
Hmmmm
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@Crossing Overhead - Don't be so flippant about a serious issue.
When I heard of the button hidden under Matt Lauer's desk which locked the door to his office, I remembered 1975 when Mayor Fasi (now deceased) of Honolulu summoned me, a new employee, to his office ostensibly to sign a bureaucratic document but came at me when I tried to leave, grabbing me and pinning my arms behind my back, forcing his body against mine as if to push me to the floor, as he french-kissed me. I bit his tongue and he angrily pushed me away, saying I must be lesbian because I rejected his advances. When I tried to leave his office, I found the door locked, and he smirked. I then said I would jump out of the window if he didn't open the door. He went to his desk, reached his hand beneath it, I heard a click, and the door was unlocked. I immediately called my husband, who took me to a prominent female public figure (Marian Saunders) who tape-recorded my account and gave it to her attorney for safe-keeping. I then served as a witness against the mayor in a Hatch Act lawsuit. This mayor was notorious and though married to a former beauty queen, preyed on women. Not long after, because of threats against me by the mayor's "goons," I moved my family back to the mainland.
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A sad story, Anne. Hope life had much better to offer you later.
I cannot begin to remember how many times I was told -- with the accompanying sneer -- that I was a lesbian by the men who tried to force themselves on me. Why did these nincompoops think I'd care what they thought about anything?
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Let's get a sense of proportion here.
"Grabbed her breasts" clearly sexual assault
"tried to kiss her on multiple occasions" clearly sexual assault, unless done in jest in certain contexts
"placed “I love you” signs on her desk" pathetic, but not a sign of abuse of power, on the contrary
"called her a dumb blonde" ?? again, in certain contexts it could be a sign of being treated like one of the boys, where teasing and playful insults are standard, the reverse of sexism
"put his hands on her shoulders" depends on the context, males do that to other males too in certain contexts
"asked her out on dates" inappropriate if done more than once
How many of you out there have called your male coworkers -- or one of "the boys" you're out drinking with -- "dumb blond?"
Maybe some of you guys don't mind another guy putting his hand on your shoulders. So you figure, AG, that I shouldn't mind a guy putting his hand on mine. Yet, silly me, I do.
What's that "on the contrary" about when some jerk has put those signs about his loving me on my desk. I say it's wrong -- but you're saying it's OK?
Your "sense of proportion" could be out of whack, friend.
Meritor Savings Bank v. Vinson, which is the subject of this piece, dealt with the liability of a company under Title VII for the actions of a supervisor that were (according to the case) unknown to the company. What it holds, essentially, is that if a boss grabs your breasts the company is not automatically liable.
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Dreadful headline.
If your boss grabs your body part, it's battery. And it's illegal.
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Excuse me? An “employer raping a woman” rises to sexual harassment? No, rape rises to the level of rape. Why would a victim even bring a rape case as a harassment case? You would bring the rape case & then sue the employer.
And how does Justice Clarence Thomas fit into this picture?
I suggest becoming very facile with the record and video features on your smart phone. No corroborating evidence, you have nothing.
Pennsylvania has the criminal statute "Indecent Assault"; a misdemeanor of the second degree with prohibits "any touching of the sexual or other intimate parts of the person (genitals, buttocks, a woman's breasts) for the purpose of arousing or gratifying sexual desire, in any person." If convicted, although a person without a past criminal history could receive probation, he/she was subject to a ten year listing on the SORNA (Sexual Registration and Notification Act) site.
If a someone is the victim of this crime at the hands of a coworker at the work place, he/she qualify as a victim of sexual harassment.
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Yet another stupid law clearly written by men. "for the purpose of arousing or gratifying sexual desire"? (a) how can anyone possibly prove that "purpose" and (b) why should that sole purpose have to be proven? "No your honour, my purpose was to humiliate her in front of the other employees, not to get turned on." "Oh! Okay son, no problem. You're acquitted then."
Guys, it's not a hard thing to understand. Ask yourself how would you feel seeing your words and actions on the front page of the New York Times?
An interesting aspect of this entire conversation is the degree to which we minimize the difficulty of knowing what crossing the line means. Obviously, egregious abuse exists and needs to be called out and stopped. For example, most of us can agree that a man who shows his genitals to a stranger or colleague is crossing that line. But how many of us have met our partners or spouses in a romantic relationship which begun with pretty direct flirtation. And what did such flirtation entail? I believe that until we have a conversation as to what sexual "passes" are socially acceptable, we will continue to talk past one another in utter confusion.
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One easy answer might be that "passes" at work are not socially acceptable, particularly where the passer is a supervisor. Seems like a pretty easy line not to cross.
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"And judges must reject interpretations of “severe or pervasive” derived from cases that were wrongly decided."
........................
"...wrongly decided"....Oh Boy....here we go again!! A twenty-something girl today decides to call a 50-year old case "wrongly decided"...BY TODAYS STANDARDS !! NO DNA or WITNESSES....just "wrongly decided. Better get out of the way folks because THE PENDULUM is getting ready to swing real hard !! Remember the 90's "day care sex cases"....that were wrongly decided?
...
Americans love a good witch-hunt when sex is involved - human nature!!
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a construction worker, presented evidence that his male supervisor blew kisses at him, repeatedly remarked on his buttocks, touched his knee in a suggestive manner, made comments about raping him, asked him to sit on his lap and talked about his genitals.- that worker well what tools he was using on construction site? No point going to court gathering evidence Simply use what tool he was using use at appropriate place on that boss. Should I write further
This is absurd.
My friend said that he is worrying those teenage girls breasts his sweaty teenage hand may have reached for only to be either rejected or accepted.
How can people be so lacking in nuance or basic sanity. Garrison Keillor!!!
Beyond absurd.
The standards need to be improved on both sides. Breasts should be a no-no, but casual contact should not. Standards should be objective as well. Also, we need fair and impartial hearings for the accused, as well as penalties that match the severity of the offense and the degree of certainty of guilt.
Rather than suing on the basis that the individual's actions are severe and pervasive, why not sue on the theory that the company's failure to address the behavior is? An isolated incident of breast-grabbing may fail to meet the standard, but surely it makes a difference if the company or HR knows about it and does nothing.
The pendulum has swung so far in the opposite direction that any wayward glance or sigh can now be grounds for a hearing and the firing of a man at a moment's notice. Garrison Keiler touched someone's back in an apparent attempt to console someone and he was fired. Companies will now err on the side of firing anyone in the fear they will be perceived not tough on harassment. This is a wave of hysteria that is now sweeping through the nation. These waves come through every 25 years or so- the last one was the ridiculous satanic child abuse scandals (that never occurred). BTW, many innocent women as well as men were ensnared and spent years in jail before the cases were overturned. In the 1990's the hysterical wave to be 'tough on crime' led to discriminating crime bills that locked up myriads of young black males and we are still dealing with the ramifications of this bad decision. At some point humans should learn to legislate logically and without emotion, but we have not evolved to do this properly and probably never will.
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Sexual harassment is next to impossible to prove. But, like the defense in “Stand-Your-Ground” states, feeling threatened or afraid is sufficient justification for action against those who made you feel uneasy/afraid. The deeper issue is that we humans are, to a large extent, driven by our hormones and the drive towards procreation is very strong. Yes, social convention should overrule the hormone driven libido, but for some humans of both genders, the hormones almost always win. Fortunately there is a point where the expression of sexuality becomes illegal and prosecutable. Unfortunately, proving that it happened when there usually isn’t any hard evidence is next to impossible.
I doubt that any legislature can adequately make laws that prevent crossing the line from mutually-acceptable to totally-unacceptable behavior. Perhaps we all have to adopt the Pence family behavior and avoid any and all contact with the opposite sex without the presence of the spouse or at least your attorney.
This is not a Democrat versus Republican issue, it is a moral issue. Moral issues are extremely difficult if not impossible to legislate. The concept of "severe or pervasive" should be incorporated into any legislation. The congress can include this concept by mandating that any entity engaging employees needs to address its definition of "Sever and or Pervasive" and each employee must be made aware of the entities definition. Leaving the standard to the Congress is a waste of time. Employees should be well aware of what is determined and expected of them prior to employment and or engaging the liability of "bad behavior" as defined by their work place.
Well, this is very troubling. It should only take a single instance of inappropriate touching to be considered assault. Why does it not surprise me that with judicial benches comprised mostly of powerful men, they interpret the law to enable other powerful men?
And we wonder why women don't come forward? Everywhere they turn, the system is stacked against them.
Hm, I'm not actually seeing the "problem" that needs "fixing". As others have pointed out, grabbing someone's body parts is physical assault and is already a crime.
I'm with Mor from California--yes, I'm a woman and a feminist, but we do NOT need broader interpretations of existing language, we need to collectively better internalize the distinction between acceptable and unacceptable behavior.
For instance, asking someone out on a date, even crudely, is NOT sexual harassment, if it is a one-time action and there are no career repercussions. It's awkward, and forces the woman (or man) to say "no" to a co-worker or superior.
But defending one's boundaries while maintaining a collegial relationship is actually an important work skill that women, and men, should master.
"It made me uncomfortable" doesn't equate to "I was sexually harassed".
Making the case that one was sexually harassed SHOULD require the plaintiff to show actual damage, or at minimum "severe and pervasive" conduct.
And the challenge with leaving that determination up to a jury is that it opens the door to massive inconsistencies, as well as social/cultural biases. A pretty, white, young defendant who cries in front of the jury is likely to get more sympathetic treatment than someone of color who is older or less conventionally attractive.
"Severe and pervasive" seems perfectly reasonable to me, in sum. And having a consistent legal standard, rather than the whims of a jury, is also reasonable.
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Skeptical of the headline, I looked up the case law where breast grabbing was alleged and found at least two cases in which an allegation of breast grabbing (among lots of other things) was not severe and pervasive enough to constitute sexual harassment. One was reversed on appeal. The other was an opinion written by Kurt Engelhardt a federal District Court judge in Louisiana. It was a horrible decision. Not surprisingly, Judge Engelhardt was nominated by George W. Bush.
Although these cases are outliers, they exist and the law is typically written by republican male judges. I am not skeptical any longer.
By the way, President Trump has nominated Judge Engelhardt to serve on the 5th Circuit Court of Appeals. Like minds I guess.
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Stare Decisis is supposed to mean that decisions of nearly equal facts result in nearly equal judgements. A wonderful concept in the ancient world, but the world evolves and a harassment charge brought in 2017 cannot be nearly equal to a charge from a quarter century ago. The courts need to consider the current environment and culture when deciding whether there is precedent.
It is nice to see corporations taking such swift action. This has not always been the case, as FOX and others have shown.
It does seem that a huge shift has taken place.
I think the fallout from FOX helped corporations realize the public will not put up with this.
This is what makes the Alabama senate race so strange. Alabama is completely out of step with the rest of the country.
Many of the cases coming forward, the women are telling of more severe cases than what are cited in this article. It sounds like the courts are not taking into account the fact that, when sexual advances are made by a woman's supervisor or boss at work, it automatically poses a threat to the woman's job if she refuses, because the woman has no idea what the consequences of refusal might be; but it is a fact that many suffer retaliation including being fired. So that makes it a pressure and an intimidation to comply. The woman either has to endure it, give in or leave, which puts women at risk of psychologically damaging experiences, or of losing their ability to earn a living. Isn't that what this is all about? Also, if any co-employee makes life so miserable for a woman that she prefers to leave her job rather than stay and endure it, that also injures the woman in her ability to earn a living. When you are sexually interested in someone in the workplace, what's wrong with asking them out on a date and cultivating relationship by the traditional procedures of gradual mutual consent? Instead thrusting oneself on others sexually is just lewd and loathsome. And may I add that the men so far outed as doing this are not men whose advances a woman would welcome, and maybe that's why they're doing it.
The authors unfairly imply that the Supreme Court grafted the "severe or pervasive" requirement onto Title VII in an inappropriate way because those words "are not found in Title VII," but are merely a "judicial interpretation." They fail to mention that the words "sexual harassment" are not found in the statute either. The statute speaks only of discrimination in the context of employment. The idea that workplace "harassment" might constitute a form of employment discrimination originated with the EEOC, and is only an "administrative interpretation" of the statute. The Supreme Court accepted that interpretation in Meritor Savings, but expressly noted that the statute does not purport to outlaw every unwelcome or rude act that might occur in a workplace. Only when conduct rises to a level that it alters the conditions of employment does it implicate the statutory concern. To hold otherwise would invite a flood of litigation in which every joke or act of common rudeness becomes a federal offense.
The authors fail to cite any examples in which a court held conduct to fail the severe or pervasive test, but in which they think Congress should allow a claim. That's because they understand that a detailed look at the holdings would highlight that the current law works. While the plaintiff's litigation bar is fervently hoping for a future explosion of harassment litigation (and thus more paychecks), they will need more than this shill piece to justify a change in the law.
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There is a difference under Title VII between sex discrimination based on sex and sexual harassment. Sometimes the claims are pleaded simultaneously, You'd need a lawyer who practices in this area to explain the difference and the complicated elements of proof.
Also, employers need an opportunity to take corrective action when properly notified. The law has rules meant to protect the potential victim of sexual harassment in the workplace AND the employer. It's complicated.
This article doesn't even note the complexities involved and cites a few cases out of context. Sexual harassment under Title VII generally must involve actions that are severe and pervasive, but every jurisdiction has a few cases where one incident is severe enough to survive a motion to dismiss / motion for summary judgment, and go to trial. There I go, sounding like a lawyer. The point is: The law is complex and the particular facts of each case are profoundly important to how, of if, the case moves forward. This is not to say that some federal judges, in spite of the law, and in light of the facts, or their interpretation of the facts, might still dismiss legitimate claims or the entire case before it gets to a jury. Welcome to the world of the litigator.
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Change the law. Women have power in this country (thank you, Gloria Steinem). We have to do it.
I see sexual harassment as power harassment with a sexual component. There is also power harassment with a non-sexual component. An example of this can be found in all the young women who were hired for the staff of Carnegie Hall, when I worked there for the Centennial Season in 1991. We were well educated and turned out, but powerless in the structure that runs patronage and stardom in the NY classical-arts world. We were body bags for bosses' boxing needs when they had a temper tantrum (the uncooked boar, John Lettieri, my experience). Some assistants were told to engage in illegal activities. They followed instructions, and were fired by the bosses who gave them those instructions.
Human resources would look for such well mannered but powerless women. It still goes on. Abuse is part of the definition of power. "Sexual" does not need to be included in the term "harassment" to wound someone.
Signed,
From one who suffered and remembers her boss's face with disgust, still...
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Good luck getting the current GOP controlled Congress and the right leaning - conservative Supreme Court to do anything to improving sexual harassment legislation. Does anyone believe the judges that Trump is trying to appoint give one moments thought to sexual harassment protection. Alabama is probably going to send Roy Moore to the U. S. Senate. What does that say about improvements in harassments laws.
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Women do these casual, inappropriate, affectionate things will male colleagues quite often. In my experience, if they are challenged, these women say, 'I was just being friendly', as though men should just welcome this kind of unprofessional behavior, because it is coming from a woman.
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"How can a man determine whether an overture will be considered offensive or flattering?" asks a perplexed male commenter on this thread.
Just ask. Women are actually people who have ears to hear and mouths to respond. You can talk to them and they will talk back. It's not rocket science.
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Roy Moore was a judge too. And just take a look at the justices on the SCOTUS. Good luck seeking a fair hearing if you are a woman who has been abused by your boss.
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The professors should provide the citations to the 1990s and 2014 cases they reference in the first three paragraphs of the column. The descriptions are hard to believe.
Men are also subjected to sexual harassment.
I was subjected to sexual harassment in the workplace. I filed a complaint with the HR department of my workplace, and the complaint was judged to "not rise to the level of harassment." I am a white man, the head of HR was a woman of color. I felt I was subject to racial and gender bias.
I consulted a lawyer who is an expert in sexual harassment cases. She was sympathetic, but explained that unless there was actual monetary loss, such as the denial of promotion or raise, the behavior would not quality under the legal definition of harassment.
To this day I remain angry and ashamed. Men are victims too, but if you are a man, it just isn't called harassment.
Well, if it's up to Congress to amend a law so as to shift power away from employers, don't hold your breath
What about "touching without permission" as "battery?" Health care professionals proceed at peril if they do not obtain prior permission to initiate treatment. And what about the right to defend oneself against "touching without permission?" How do the courts rule when people defend themselves against perpetrators of a "battery?"
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I agree with this column, but I think we should be very careful about how we change Title VII. Taking out severe and pervasive seems to make sense, except that having no limits would open up lawsuits based on a boss asking out their employee once, then never bothering them again. It could trigger a wave of lawsuits about people getting bumped into in the hall.
I do think people need more defense against being sexually harassed in the workplace and elsewhere. But I can see that getting taken too far too, and it seems to me what we really need to be changing is the culture. Thankfully the culture can be changed, and has been shifting for decades toward more equitable and civilized treatment.
Another option is we could tie the second amendment into this. Make it a federal right for women to carry a pistol at any time, make it easy for women to get licenses to do so, and then with a lot more armed women around, men ought to be capable of controlling themselves better.
Thank you for this timely analysis. It is depressing to think that this weakening of laws against discrimination by the judiciary is likely to get worse rather than better as President Trump nominates unqualified candidates to fill judicial vacancies, and as his Attorney General, Jeff Sessions, does all he can to undermine civil rights.
We can't assume the legal system will automatically catch up with cultural shifts or what's in the news. We have to do more:
vote in local and state elections, donate, volunteer to help get out the vote, and contact our elected representatives.
Expecting the 1964 Civil Rights Act Title 7 to solve this serious incivility and misbehavior problem is a mistake. Please note that 'sexual harassment' is a specialized form of sex discrimination under that statute. Accordingly, it focuses on whether the offending 'severe or pervasive' sexual behaviors impede the victim's ability to do her/his job (vs. others who are not subjected to them). It was never intended to to be a generalized civility code, nor should it be. That law has had a hugely positive and crucial impact on workplace opportunity for all its covered characteristics, but it can't carry this water without that primary mission becoming confused and diluted.
If society wants to raise the general standard of conduct (and I'd be for that), then legislation designed to achieve That goal ought to be proposed, debated and enacted. The Civil Rights Act is simply not designed for that, pointed as it is at the different pervasive social evil of workplace prejudice and Discriminatory conduct. Let's not let outrage further muddy these waters.
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Yes, this unveiling of the acceptance in our culture of sexual harassment hopefully will enable our legal system to get with the reality of what we have swallowed for decades. Dealing with the "after" is extremely important, just as important as dealing with the "before". Imagine if our children were taught in elementary school how to identify it, how to react to it and who to report it to. Imagine. I recently came across a video of a very successful program initiated by the elementary school teachers in Malawi, Africa. It was so encouraging to see both boys and girls, not afraid, but aware of what to do "before" or during a situation that just does not feel right.
I see women today equaling and sometimes far outstripping men in many important areas of the U.S. economy such as education and nursing. I don’t see them encountering much discrimination these days gaining admission to law, medical schools or graduate schools or finding employment in journalism, television, the entertainment industry or the financial sector.
The present storm regarding sexual harassment and abuse in the workplace will settle down in a few years and when it does women will be better armed than ever before to protect themselves against this evil scourge. But when it does, men will still be men and women will still need to be their own primary defenders, doing whatever they can to protect themselves.
After which, just possibly, American society will begin thinking about what it might be able to do for the millions of men who have not made the recent progress women have.
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The focus of this op-ed is on federal law. There was no mention of the multiple state laws covering workplace sexual harassment. Some states are probably better than others, and there are many local civil rights agencies whose mandate includes investigating and possibly fining employers. A broader review of sexual harassment laws would have been more instructive and beneficial to the readers.
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Unwanted touching is assault. That should be enough for criminal charges or civil claims to be brought in most of these cases.
I wonder how many of these cases will actually be brought to court?
Pressing unwelcome advances on anyone is a crime, regardless of the nature of the advances.
It seems that there is probably a simple solution to what appears to be a complex problem: sexual harassment in the workplace. If ANY harassment occurs, there should be a BIG price to pay financially. Every employer should, when making new hires, require each of them of both sexes to sign an "understanding", so that every employee understands that if harassment is carried out, or complained about, a huge sum of money will be deducted from the "harasser's" pay. Each employer would have to decide ahead of time what constitutes a "huge" payout for each employee accused. Each employer, including various governments - state, local, and federal, would need to be included. If the cost is high enough, the harassing will stop very quickly.
There has been too much focus on sex and not enough on harassment. Men and Women have been having sex since Adam and Eve. The problem isn't sex it is abuse of power. In personal relationships, in the workplace and in our government, an imbalance of power always leads to corruption of values.
We need to make sure we can speak truth to power and hold powerful people responsible for their actions. Secret under-the-table payoffs isn't holding them accountable. Public shaming is much more effective.
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Clearly, the law was written, and interpreted, by men. The fix is more women in Congress and more women on the bench.
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Sexual harassment claims should rarely be dismissed by judges before trial on the merits. Only after all the facts and testimony have been presented, should a judment be rendered on a sexual harassment claim under Title VII of the Civil Rights Act of 1964, as amended. Hasty dismissals based on a paper record are liable to deny justice to meritorious claimants. By the same token, summary judgments against employers should rarely be granted in sexual harassment cases. Let the judge or jury decide after hearing the full story from both sides, and weighing the evidence in accordance with law. The plaintiff always has the burden of proof in these cases and the judge can “overrule” a jury verdict for plaintiff by granting a defense motion for judment notwithstanding the verdict (“JNOV”).
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The fix is already written into a careful analysis of the substantive harassment law read in connection with the Procedural rules of state and federal Courts. The issue of what is, or is not "severe and pervasive" is almost always supposed to go to a jury. The problem is that courts have misapplied a different set of procedural rules to keep this question from the jury. Once these questions get to a jury, we can rest easier even if they don't necessarily get it right every time, because at least its a community standard being enforced.
Where the federal courts have failed, some state courts have done well by the disadvantaged employee. That is why plaintiff's employment attorneys in progressive states increasingly bring claims in state court. Through their professional organizations, they also lobby the legislature to enact laws that better protect employees than the federal laws. This situation is not ideal, but it was certainly recognized as probable in light of our federalist structure of government. With Trump judicial appointees, the trend toward using state laws and courts to protect employee rights will only increase. I am grateful to live in a state like Minnesota where the entire government more favorably treats its employees. As for the rest of the country, I feel bad. The antidote seems to be more pro-employee efforts at the state level of government. It can be done.
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Whether any particular activity is "severe or pervasive" should not be a question for a judge to decide at all. It should be a question of fact for a jury.
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Excellent analysis that demonstrates the challenges facing plaintiffs in harassment cases.
I agree with the authors that the law must be changed to allow victims of sexual and racial harassment a better chance at litigation.
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"Congress can amend Title VII to ensure the courts interpret its language broadly. It can also legislatively dismantle the court-created doctrines that are gutting harassment law."
Ok, we'll just treat this as the joke it is.
"And judges must reject interpretations of “severe or pervasive” derived from cases that were wrongly decided."
For this I can see a creative lawyer arguing that the harassment is severe and pervasive because of the widespread nature and acceptance of it. There's probably a nice legal term for it too.
2
Most processes evolve. We have evolved from a society that owned women three hundred years ago, to one that oppressed women, to one that curtailed women's rights and treated women as minors, to one that recognized women's rights, to one that upheld women's rights. It hasn't been a fast or painless process.
The standard to which people in power - mostly men - are held to determine harassment is evolved too, and is still evolving. Many of us don't consider Trump's assertion that he can grab any women he wants because he is the boss is no longer "locker room talk." No matter how much he wants it to be. Threatening to break a career if the woman doesn't succumb to the obvious charms of the giant barrel of toxic ego, sexual predation and power mongering is no longer a game. It is harassment and predation.
We will get there and the judges will follow. But it takes time and effort force of will to shift a mountain. it takes time and effort and force of will to change society's standards.
8
Thanks for your excellent comment. There has been progress and Congress can help by “legislative repeal” of erroneous Supreme Court interpretations of statutory laws.
Before we get too far down the line of blaming men for all of the boorish sexual behaviours, we need to look, too, where men in power might have gotten the impression that they are free to act out their fantasies on any woman that comes with in reach...
I use as my exhibit the "groupie" that follows the rich and famous, usually entertainers, with the fantasy of bedding the one (or ones) whom they are stalking.
How many women jumped into be as a result of the "drugs, sex, and rock-and-roll" movement of the past half century?
How many women, usually labeled "interns", stalked the lonely men who were members of Congress, inhabiting Washington without the families to restrain their libidos?
This is NOT just a "male" problem to resolve. It is one that is solved by a community that values moral behavior over the fantasies of sex and power.
@The Owl - Your comments are basically a very verbose way of saying that you blame the victims.
You're wrong comparing the workplace to celebrity "groupies", and those who participated in the "sex, drugs and rock n roll" partying. And your depiction of the poor, lonely men in Congress who can't control themselves without their wives being with them at every moment is ridiculous.
1
Court opinions actually reflect cultural norms. The cultural tipping point we've reached in the past few months will find its way into judicial opinions.
5
Non-consensual touching especially by a more powerful person to a less powerful one. If workplace law won't address it, there is always civil law.
Battery: Definition
Although the statutes defining battery will vary by jurisdiction, a typical definition for battery is the intentional offensive or harmful touching of another person without their consent. Under this general definition, a battery offense requires all of the following:
intentional touching;
the touching must be harmful or offensive;
no consent from the victim.
Treaten to sue and spread it publicly. It wouldn't have worked once upon a time but it'll work now.
19
Amending Title VII would be a great start, but with this Congress, I doubt that will happen.
We can also start dealing with the corporate structure that has taken HR departments, which were originally intended to be advocates for employees, and are no simply the strong arm enforcers for the companies, and create some kind of shield between HR personnel and the "bosses." There is simply no place an employee can go to address a grievance. If you do, you will be fired. It happened to me and as an extra kick out the door the HR director told me that coming to her about my boss made me "less than an Alpha Female." She told me to buck up and take it. What goes on in offices out of sight of courts and judges and which never comes to light in the general conversation, are these kinds of corporate structures that need to come tumbling down.
9
"Amending Title VII would be a great start, but with this Congress, I doubt that will happen."
This Congress is in power because we, the people of the United States, voted them in. We bear full responsibility for their actions because they act as our proxies.
One can decry the Big Money interests that run ads for their preferred candidates, but ultimately we listen to those ads and vote for the people supported. One can decry the gerrymandering that forces people int politically safe districts, but they are only safe because the residents make them so. One can decry the dearth of true reform minded candidates, but unless one is willing to go through the process of running for office, it is full of sound and fury, signifying nothing.
So, when we condemn the Congress for not doing the right thing, point that finger right in the mirror because we have met the enemy and they are us.
2
Don't blame the voters! Not only are they not the enemy, most voted for the party that isn't in power!
With gerrymandering and voter suppression, the Republicans and the anti-civil rights crowd have taken the reins of power. More people vote for Democrats in congressional races, yet thanks to the electoral shenanigans, Republicans hold a majority.
The gerrymandering affects states as well.
Add in the power of Fake News -- the real Fake News -- that is, Fox and Breitbart, and Rush and Sean's blatherings and Trump's tweets -- and a sizable portion of the voting public has been hoodwinked.
So, the enemy isn't us -- one time that Pogo was wrong! It's powerful rightwing forces with huge amounts of corporate and financial power that are giving us politicians and policies that most people don't want!
Stephanie - First off, thanks for getting the Pogo reference.
Now, as to where we disagree. The power of Fake News is only granted by the recipient. The portion of the voting public who are hoodwinked by either side allow themselves to be hoodwinked, it it their own fault for not expanding their sources.
Even with gerrymandering, it is the voters in the gerrymandered districts who choose to elect the Congresscritters we have, so it is still the voter's fault that they are there, just different voters. The one place where you have a point is with the suppression efforts, if one can not vote one cannot be held responsible for the results. Even there, however, most suppression efforts do not make voting by undesirables impossible, just difficult; so if it is important enough then a voter will make the effort.
In other words, by us I meant all the people of the country and I go back to Pogo with that.
The judges did the right thing. Anyone can accuse a person of sexual misbehavior and if the past weeks are any indication there is no " guilty until proven innocent" provision with the employers of the accused as well as with public perception. For example, as an attorney I have seen the domestic violence laws abused where clients were summarily evicted from their homes on the basis of fabricated accusations of domestic violence. There needs to be a check on the reflex to persecute the accused on the basis of one persons say so or there will soon be more abuse of sexual harassment accusations in our future.
4
I was one such person who was evicted from my own home by my wife's fabricated story of domestic abuse.
Incredible that it happened to me, and I'm sure it happens to men all the time.
The courts already too liberally 'believe' women when there is a dispute between a man and a woman.
Following the reasoning of this piece, any woman can find a legal route to advancing her career by virtue of constructing false evidence of sexual harassment.
1
I don't understand how dismissing a case on a legal standard that assumes the facts as alleged are true addresses the issue you raise. The procedure we have for farming out false accusations is discovery and trial, which these judges foreclosed.
I'm not a lawyer, but I believe the article indicates that the cases were typically dismissed prior to a trial.
Essentially the judges were not letting the cases get to where guilt could be proven, thus giving what amounts to a free pass for what any victim (and civilized respectful human) would describe as sexual harassment.
That is (was?) the problem. It really needs to be a 'was'. Now. Today.
What seems to be missing in this discussion is the biological driving force that seems to make some men who would otherwise be outstanding leaders and colleagues, a menace to their co-workers. Most women don't seem to suffer from this biological imperative and can live without men in their lives. But, most men listen to their Peters (picture a diminutive angel on the right shoulder and a diminutive devil on the left shoulder but lower down below the hip) and its something that most men have to learn to override. Unfortunately, the biological forces from Peter can override an otherwise good person to step over the line. Perhaps its a matter requiring some public indoctrination at the secondary school level.
3
It's not a biological force, it's a societal one. Men are taught - through general attitudes, other people's behavior, lack of repercussion, etc.- that they don't have to control themselves but they can control women. Calling it biological is part of the problem. Biological forces are quite easy to master if society dictates we do so. We all have to go to the bathroom but have learned to hold it until we can do so appropriately.
1
While all these high-profile harassment incidents have been surfacing, I have been wondering about the reports of sexual misconduct that occur in therapists offices. When I was in my early twenties I saw a male therapist with a Park Avenue office. He routinely made comments about my appearance, and I can remember him once telling me that a woman should always appear around the house in make-up and dressed presentably--it was how one kept one's husband interested. I remember lying on his couch feeling very uncomfortable--and after a few months I said i wanted to end the therapy. He weighed in with all sorts of warnings if I did so, but I left and never went back. Over the years I have heard of countless women at the mercy of their male therapists--no policing or oversight--in the privacy of those sessions, and a lot of fragile, vulnerable women.
5
That is a perfectly defensible stance. You may disagree with a particular therapists' advice, and that is reason enough to leave, but that opinion is hardly a sign the therapist is abusive.
This is crazy. There should be something agreed upon, in writing, to define what is and is not proper in a workplace setting.
It would protect those harassed and also provide guidance to all as to what constitutes a safe and professional workplace environment.
5
How can any sane, sensible, decent person not know what sexual harassment is? I know the difference between a tap on the shoulder or congratulatory pat on the back and an over-the-top stroke.
Anyone out of his or her childhood who needs "guidance" about one's behavior with other people -- anywhere -- shouldn't be allowed out among us.
Sid anyone surprised at the sexual pressure on women in the entertainment industry? I remember in the 40's & 50's, they used to talk about the 'casting couch', meaning that if a gorgeous young woman wanted a screen test, she had to put out for the producer first. I'm glad it's changing. In other areas the sexual predation in the word place surprises me. When I was in my 20s 30s & 40s the streets were a nightmare of sexual predators, as were subways & subway stations, & a young woman was well advised to peer into an elevator to see who might be lurking there before getting in. But work environments were safe spaces, which I assumed was because you knew who those men were.
2
Right now, I think we are all struggling with how to respond to sexual harassment and assaults. Since the 1986 Supreme Court ruling, I think norms for appropriate behavior have been and continue to be defined in the workplace--just not the entertainment industry and government.
Look at industries that have already established behavior norms.
2
Passing responsibility for sexual harassment and other forms of discrimination into the courts, has the consequence of converting managerial responsibility into legal liability. Instead of judging managers for the quality of their management - including their management of discrimination - firms judge their legal team's effectiveness in settling legal claims. Discrimination should be recognized as real and managed internally.
3
The key to understanding this is 'power.' Lincoln reportedly said: 'If you want to test a man's character, give him power.' Presumably it works the same for women. But most people in power - judges, bosses, politicos - are men. Many (most?) were either corrupt to begin with, or have been corrupted over time by their power. Recent news about Lauer, and Rose, and Weinstein was preceded, years ago, by stories (not new) about their nasty tempers and rages against employees: a different form of abuse of power, but an indicator of character. Same for police: give a man (or woman) a gun and a uniform and chances are they'll become corrupt over time (if not already).
6
Whenever a person working for me was caught lying about what was going on, I got very angry, angry enough so that the liar was well aware of my displeasure.
The miscreant was also quickly sent on his or her way to another assignment or job with another boss.
I take Mr. McGrath at his word that he condemns sexual harassment. However, I believe women are perfectly capable of distinguishing between banter and harassment.
That being said, in the workplace, even “innocent” sexual banter directed toward a subordinate is inappropriate regardless of how the particular subordinate might view it. As for colleagues, I agree that consensual banter or flirtation is fine…after all, that’s how workplace romance proceeds to the altar. But if a man is so socially maladroit as to feel incapable of distinguishing between offensive or flattering, I recommend he abstain from comment altogether.
Second, Mr. McGrath says “Should every man abstain from every display of interest? I don't think that would be something most women would desire.” I’m not sure what he means by display…if he simply means compliments on their appearance, I can assure him that the women I know don’t spend much time tallying the flattering comments they receive from co-workers.
It’s unfortunate that this awful situation seems to be engendering a “poor me” response from many men. I don’t include Mr. McGrath in that group; he seems a thoughtful man, capable as I believe most men are, of having a respectful, refined, and still enjoyable relationship with women in and out of the workplace.
5
So you're basically saying that women make all the rules and then decide on a case-by-case basis if men have broken them?
Sounds like a rigged, and emotionally exhausting, game to me.
Americans are largely unaware of the fact that 'normal' interactions between the sexes have been degrading over the last several decades, correlating nearly perfectly with the degree to which men think they have to be careful in everything they think, do, and say.
This phenomenon is as well probably the cause of the general drop in fertility rates.
" I believe women are perfectly capable of distinguishing between banter and harassment."
No. That's the main problem. People, including women, vary widely in how they react to everyday events. Some go around with a chip on their should and a paranoid attitude, interpreting everything in the worse possible way, "reading between the lines" what isn't there, etc., while others are more easygoing and have a sense of humours, and still others so lack social intelligence you have to be very explicit to make a point because they will not "get it" otherwise.
We women are making more rules than ever before, dmckj. Pretty soon, we hope, we'll be sharing the rule-making tasks 50-50 with men.
"Normal" relations between the sexes have been degrading, dear, they've been getting closer -- not close enough, of course -- to equaliziing. And, of course, as more and more of us men and women become better educated, we lower our fertility rates. (You should have learned that in your first year college sociology course.)
And, though you seem horrified by the notion, most smart folks realize that it's always best to be careful in everything they think, do and say.
1
The legal system will undoubtedly change with the times, but unlike the jury of public opinion, a victims evidence will have to go beyond "he said, she said" and provide some sort of corroborating evidence. In the meantime, women in the workforce would be well served by doing everything possible to not be alone with male colleagues or superiors, otherwise they should have their hidden smartphone cameras running at all private interactions.
Best and most practical comment I've come across on this subject. No one should be punished just because there is an accusation, unsupported by any
evidence (whatever that would be). Unfortunately, this is the sort of thing that,
by definition, only takes place when there are no witnesses; a cell phone or other discrete recording device is a great friend to women, especially if it is one that automatically send its content to internet storage.
Wish I had had that years ago when I worked for a small company that consisted mostly of men (42 of them). My boss was a smirking, superior, rich guy who constantly mentioned the fact that he was very active and important in his church. Everyone kept telling me what a "nice guy" he was, so honest and straight-arrow; in a round-about way, he told me too --- his perfect, happy marriage of 30 years, his huge financial contributions to his church, etc.
Wow! Was he ever not a nice guy when nobody else was around! I'm sure that had I told anyone even the mildest of the things he said to me, they would not have believed me.
1
Your suggestion that “women in the workplace would be well served by doing everything possible to not be alone with male colleagues or superiors, otherwise they should have their hidden smartphone cameras running at all private interactions,” is not only completely impractical; it is illegal in many states. I am a female executive. I’ve had male superiors, and employees, throughout my entire career. It would be impossible for me to execute the most basic functions of my job without being alone, often, with these men. It is the responsibility of the organization to enact and enforce sane sexual-harassment policy, and to hire trustworthy employees, and then to trust them. It is the responsibility of organizations and managers to follow the law and corporate policy when employees violate that trust.
I must add that it is illegal in many states to record conversations with another party without that party’s consent.
1
I've got a better idea, Era. We women should just stay our of the workforce entirely. And not travel anywhere alone. Stay home. In the kitchen, mostly.
THERE Are, legally, different definitions for types of murder; premeditated murder, manslaughter and involuntary manslaughter, which differentiate the relative severity of the crimes. There are also different levels of assault: simple assault, aggravated assault and deadly assault. In fact, there are also different levels of sexual abuse of children: first, second and third. I believe that the standards relate to wrongdoing such as showing a minor pronographic materials, having unwanted physical contact with a minor and having had forcible sexual intercourse with a child. If sexual crimes against children are defined as having certain characteristics or degrees, then surely sexual harassment can be defined as certain levels of wrongdoing.
6
good article. If judges have trouble figuring out if behavior constitutes harassment, just go to the thesaurus for alternative words for harassment. That will help them to better determine what's actually taking place or not. Instead of trying to determine if the word fits the behavior, try to determine instead if the behavior fits the word. The thesaurus then becomes quite helpful.
You misunderstand the role of higher court rulings in restraining the trial judge in how he deals with applicable definitions.
The article clearly states the problem: The courts have created a definition of sexual harassment and workplace sexual discrimination that limits the validity of the charges to "extreme" and "severe". If those thresholds cannot be met by prima facie evidence, the case cannot proceed.
A thesaurus is useless if case law has already defined the terms.
The fact that an act does not constitute harassment in a legal sense does not in any way prevent an employer from making it a fireable offense. Employers are free to establish their own policies regarding behavior they will not tolerate and disciplinary action they will undertake if necessary. If your employer won't step up and protect you from harassment, you should probably take a good look at compliance with OSHA regs and other issues that could cause harm in the workplace.
5
True. But if the employer sets up a "standard" that is different from what the law allows, they will be subjected to suit from the one fired for failure to afford due process in the action.
In a nation of laws, the legal definition will always trump one driven by emotion or backlash.
I don't think so, owl. You can't have a policy that is more lenient than the law - that is, you can't make it company policy that people can break the law - but you can have a policy that is stricter. For instance, you can have safety rules more stringent than OSHA regs, and fire people for violating them.
Worse for someone like me: contractors have no federal rights. I tried, but the judiciary didn't follow precedent.
1
Great article. The “severe or pervasive” standard needs to go.
3
Replaced by what? "I think therefore it is?"
That doesn't seem to be a rational or legally defensible position, especially given the right of the accused to the presumption of innocence.
It would appear that you have missed the point that the authors are trying to make. Yes, they argue well for a revised standard. But they clearly point out that this is a matter for Congressional action, not definition by acclamation or even by press release.
The definitions have come about by arguments in courts of laws and decisions by the judges trying to find the hard edges of terms that defy precise definition.
The refinement of these definitions should not be subject to rule by the mob.
Especially since there's no basis for it in the law. As with "corporate personhood," this "interpretation" is simply made-up out of whole cloth.
Talk about cherry picking the Court’s language. Grabbing someone’s body parts at work violates not only Title VII civilly but is pure criminal assault. The question was whether the employer was liable for the actions of its employee. Here is the entire quote from Meritor: For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." Ibid. Respondent's allegations in this case -- which include not only pervasive harassment but also criminal conduct of the most serious nature -- are plainly sufficient to state a claim for "hostile environment" sexual harassment.
5
As a male my perspective has always been to separate flirtatious behavior from my piggy bank, ie where the pay check comes from. The workplace should be where you focus on making money, the bars or social gathering places is the more appropriate place to look for love
5
It seems we are finally coming out of a permissive culture of sexual harassment, one we all are guilty by association. We just didn't have what it takes, given that circumstance, to recognize and condemn what was so routine and yet, disrespectful, if not offensive, to the victim (mostly women). It is changing fast, to our chagrin and awareness of graft. This immediacy in trying to catch the offenders and seek punishment by ousting them from their jobs, however grand, is already in the works. What needs to occur though, in the long run, is the education of boys, and girls, in respecting, if not loving, each other since infancy. Are we parents up to the task, domestic abuse notwithstanding?
2
The title of this piece is a little misleading. The one time grab of an intimate bodily part or any other bodily part might not be sexual discrimination for purposes of Meritor Savings and Title VII. But it is assault and battery! It's a civil violation -- you can sue the individual -- and perhaps criminal -- you should call the police. Title VII has never been understood to suggest that you have fewer rights in the workplace than you have on the street. One other thing about Title VII. Its aim is to prevent discrimination. If workplace managers and others adopt the "rule" by which it's said Vice President Pence lives, according to which he is never in a room or at a meal with a woman not his wife unless chaperoned, then they are treating women quite differently from how they are treating men and in a way that burdens women and makes it far more difficult for them to compete in the workplace. On the private side -- and under the equal protection clause on the public side -- that's a violation.
8
Is Pence afraid of women? Of himself?
If he gets any real power will he prohibit women from going to bars alone? Require a hijab?
This is very scary. Women will always be less-than-equals if we are thought to require managing.
Does it go without saying that we, in fact, do not require managing? I'm not sure anymore.
1
And of course on SCOTUS we have Clarence Thomas as exhibit no. 1 as to how difficult it will be to get change in the interpretation of the law.
2
An interesting article, though, should be more explanations as law is not so easy as we pretend.
2
i cannot imagine hitting on my mom or sister(do not have one)with any of the interest i have when out and having fun. that is weird and wrong. well most of the women i have worked with fell into one of those two categories. work is where one has to go to make funds for fun.
1
Thank you for citing legal cases and discussing solutions to this pervasive and historic problem. Your opinion piece is so good; even the illustration chosen is eye catching.
Although I am a middle aged woman very concerned about this massive problem, I am concerned that with our obsession to fixate on one news story ( one collective news story of ongoing new sexual harassers ), we may be letting the executive and legislative branch completely take over the judicial branch, pass a destructive to the middle class tax bill, erode all restrictions on global corporations, destroy our long term friendships with allies and dismantle democracy as we used to know it.
2
These authors are trying to analogize the extremely vague and flexible standards being used today in the media to legal cases in court, but that's nonsense. The standards in the media now essentially amount to, "If I feel it was harassment now, even if it happened 30 years ago and I went along with it then, that's good enough to claim harassment."
That IS good enough if you're just questioning someone's fitness to be elected to high office or if a network is deciding whether they want to risk consumer backlash by keeping someone employed.
But to bring a lawsuit against someone -- to subject them to the power of the court system and perhaps the criminal-justice system, the standards and rules of evidence required are vastly higher, and they should be.
3
Thank you for sharing the reality of workplace harassment. In the United States workers have too few rights. This needs to be pounded into the public. Workers must realize that almost any complaint might lead to dismissal, even legitimate complaints involving safety. Workers must vote for legislators who will propose and then pass laws to protect workers from harm. Recent revelations come with suspicious timing and hidden agenda, not concern for the little person at work. These allegations will not bring about legislative change but do increase distrust in legitimate media and disparage legislators who vote for worker rights. Worker harassment is also pervasive. If a reporter went to Trump Tower, and asked women about harassment, without any fear of reprisal, would there be any complaints? The "Access Hollywood" tape was really about worker harassment, the implication being that abuse could occur even on a public TV set. "Right to work" laws and the destruction of Unions have led to this horrible state of affairs. We can thank Saint Ronnie for that, along with hapless, fearful Democrats. The Courts are no place to go for relief. Gorsuch and the "frozen tucker case" demonstrates how this will go in the Trump Administration. It is time for the public, especially women, to stop whining in private and vote for workers rights. Then the abuse will stop. Remember, voting is still private, and still free from harassment.
1
The EEOC hears harassment cases. According to the EEOC:
Harassment is where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:
The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
Unlawful harassment may occur without economic injury to, or discharge of, the victim.
The paragraph that references offensive jokes and other specific conduct includes a broad range of conduct, that is not all-inclusive' If the writers are correct, and far too few cases are won, it seems to me that the problem isn't the law. It's the judges applying the law.
1
Simple and clear rules can be set and enforced at a workplace. Working whole my life for big US international companies, we were and are, and since at least 20 years, obliged to take an "anti sexual harassment" training. And that every other year or so.
None of the behaviors mentioned in the article would be accepted.
Contrary to some comments, very clear line can be established.
So, no need to reinvent wheel, it's enough to check what City Bank, IBM, AT&T and many other companies do.
1
@Servus - Training is one thing. Actual behavior is another. One company I worked at was very good at mandatory anti-sexual harassment training and HR complaints were taken very seriously. Nonetheless, one male executive made suggestive comments to a female admin, right outside my office & in the presence of another employee. The exec had always seemed like a nice guy, married with kids. I could barely believe what I heard. I met with the admin later and offered to be a witness to back her up and encouraged her to talk with HR. He continued making comments and she reported him. He was suspended from work for 2 weeks and was told he would be fired if there were subsequent complaints against him. So, training is good, but it doesn't always sink in.
1
And everyone needs to think about the unqualified and inexperienced appointments Donald has made to the judicial system .
Please Congress and especially the Republican Congressional leadership wake up .
3
The term "harrassment" is kind of a mess, because it seems to include pretty innocuous, but unprofessional things like asking someone out on a date. I recall the Chris Rock joke: "if Clarence Thomas looked like Denzel Washington, (the Anita Hill case) would have never happened!" I think he was wrong about that, but it's a reflection of how people have thought about sexual harassment for years.
When I hear that someone's career is in jeopardy over sexual harassment, my initial assumption is that it was for an unwanted expression of sexual interest--unprofessional, inappropriate, but minor. No one should be fired over that. But the term can also include repeating these overtures after rejection, stalking, bullying, bias in evaluation of work performance, physical contact, or worse.
Not only laws, but corporate policy, should be clear about what is and what is not sexual harassment. And VERY importantly, it should clearly distinguish degrees of bad behavior. Some things should receive admonishment or warnings; others should receive suspensions; others firings; and some things should be turned over to police for further criminal action. The recent news items suggest little distinction is being made between minor and severe actions.
1
The discussion in this article is limited to cases under Title VII of the Federal civil rights act. There are other remedies for sexual harassment under state laws and common law. Any unwanted touching constitutes the common law tort of battery which, because it is an intentional tort, is actionable without the need to show physical damage.
3
The shockingly high legal thresholds for harassment taken together with even our representatives' efforts to settle, silence, and avoid publicity, all indicate that what these predators fear is not the law but the light.
The SCOTUS ruling is shameful and must be amended. But the real antiseptic is transparency. If the culture is really shifting then women will not fear the publicity, the public and the media (but for FOX News) will be supportive, and laws will change.
2
As a professional woman and a feminist, I’d normally be very much in favor of tightening legal guidelines on work-place sexual harassment. It is a serious issue and deserves a comprehensive legal definition. But after witnessing the rising moral panic, in which men lose their jobs on the say-so of anonymous complainers, I am now firmly against it. The firing of Garrison Keillor has become a watershed moment for me. I don’t even like his show but the indecent speed with which this man has lost his position, his reputation tarnished and his talent discarded, have finally convinced me that this is simply a witch-hunt, brought about not by genuine grievances but by social hysteria. Such witch-hunts have their own logic, which anybody who knows the history of the Great Terror or Satanic abuse, can predict in advance. Legislating sexual harassment in the middle of a moral panic is tantamount to Opening the door to a perversion of justice. I have already heard ‘feminists’ say that in cases of sexual harassment,presumption of innocence should be dropped. Until such voices are silenced, I unequivocally oppose any further legislation on the subject.
5
@Mor - Where do you see "men lose their jobs on the say-so of anonymous complainers" ? Name them, from credible sources. Same with your comment that you "heard feminists say" that they want presumption of innocence dropped -- name some credible sources please.
3
Exactly, but the problem of witch hunt events is that when they balloon into real damage to the society, we reject any underlying purpose, and women are back to square one. Worse off than before, and probably all wearing burkas or PRC quilted unisex jumpers. Self-assault.
2
The judges created the doctrine that harassment was illegal in the first place. It is dubious whether that was the intention of the laws in the first place. For the authors to complain about the court set limits to the cause of actions they themselves have invented is both funny and dishonest.
2
My read is this column is highlighting the current ambivalent legal situation and legal precedents rather than endorsing that some parts of a woman's (or a man's ) body can be violated with impunity. The title while catchy is misleading. Our lawmakers ( with many culprits among them both outed and concealed) need to speedily enact amendments to Title VII to remove ambivalent verbiage that will restrict judicial interpretation. Remember we have a pedophile ex Chief Justice running for senate and even cobbling a substantial voting base despite the flagrant violation of law and socio religious norms. More women judges is only one answer. We need to refocus as a society and not as ideology driven partisans in this matter. How are we going to explain all these misconduct behaviours to our children? Are we not parents, grandparents, uncles, aunts, pastors, etc?
2
Perhaps, our ancient forefathers were right all along and the sexes don't belong together in the workplace. Or, as in other cultures, in the play pen either. And in some cultures, even separated by a screen (often portable on the female). Horrifyingly, there is assault in the workplace and elsewhere. However, there is also opportunism - using ones 'charms' to get ahead. And in the latter case, it appears to be a win-win approach. If one gets ahead, all's fine, but if one doesn't then one can now have the boss/colleague/successful acquaintance (all males it seems) sued/humiliated/fired for 'sexual' harassment in retribution. Explicit details of a 'charm offensive' can be distasteful when described to a third person (remember Bill Clinton, Monica Lewinsky and the cigar?), even if it may not have been at the actual instance.
3
This analysis is just inaccurate and ignores the reasoning behind the opinions not to mention Supreme Court precedent over time to the present. Rely on it at your own peril. Yes, there are situations like that described, but a lot more goes into those cases than meets the eye. Companies wouldn't be paying out millions of dollars if it were as hard as this case makes it out to believe. It also varies by location throughout the country depending upon the federal circuit in which you are located. But I will say those who paid people like Meghan Kelly and others millions of dollars to address these issues were just as uninformed as the author of this article and demonstrate that decision making in these companies is amateurish at best.
This is pretty much the legal advice I got during my supervisor training at a DOE national laboratory. I should say that I thought that our lab had an excellent program of periodic training about sexual harassment. As a supervisor I never encountered a sexual harrassment problem with my employees.
2
Let's get real: most of the judges dismissing these cases are older, straight, white men. They identify with the employers, managers and supervisors whose actions are at issue. They do not empathize with the women, racial minorities, or LGBTQ plaintiffs who bring many of these lawsuits. It was once shown that the best odds of winning an employment discrimination case lay with plaintiffs bringing suit for age discrimination -- likely because older judges could identify with, say, an older white man who lost his job through age discrimination.
This is a sorry state of affairs but it is one that will be perpetuated by the white men being rushed to the federal bench, qualified or not, by the old, straight, white men who control the White House and Congress. They have the power and they will keep using it to benefit themselves, until we voters take it away.
3
It may not be sexual harassment but the unwanted touching and contact certainly constitute assault and battery.
3
Legal changes are required, but this can't be left up to the individual women (or sometimes men) in the first place. There is too much danger of retaliation from powerful men (or perhaps women). Obviously women have been afraid to act alone. Nor can others in the workplace be expected to report offenses - usually these things are done in private. Nor can the media be relied on to take up individual cases. There should be an institution or organization which coordinates complaints and can take action when there is sufficient evidence. Action would not necessarily be criminal or an actual lawsuit. If the facts are brought before the public, the perpetrator would be the one who has the option of suing (for libel or slander).
2
Some of the behavior described here should not be viewed as harassment, it should, instead, be viewed and charged as assault. The statute on assault where I live includes as an element unwanted touching. Being charged criminally might get a man's attention.
14
Except that a woman who wants to keep her job isn't going to bring assault charges against her supervisor.
I have worked for a few larger companies and each one had "harassment" training. In all of them, hugging or kissing (without mutual agreement), touching legs, breasts, buttocks, or groin of a coworker were verboten, leading to disciplinary action up to termination. Touching of the hands, arms, shoulder, or back (not small of), were permissible. They also contained limits on what one could say about another coworker. For example that's a nice sweater is fine, but that sweater really shows off your figure, is not; as were saying nice breasts, bottom, legs, etc.
The shame of things is we've gotten to be a pretty sexualized country and there are some of both sexes that take it too far. Far more men than women, but still. Thus the reason we need corporations to set reasonable standards they expect their employees to meet. Then uphold those. Lower the standard for reporting and punishment for first incident. Perhaps counseling. Then issues will rise up faster, and those committing them will be cleared out of the company faster. Hesitance to report allow serial harassers to remain in the workplace. No place of work should have a man the women know not to be alone with. That's just plain wrong.
19
Although the authors rightly point out the difficulties that sexual harassment cases pose, employers can craft their employment policies to punish such behavior that might escape a judicial remedy. It is a form of assault for which I would discipline or fire an employee.
7
"The Supreme Court used the words "Severe and Pervasive" to describe the level of seriousness that conduct must reach before meeting the legal definition of harassment". Sperino and Thomas are quite right in pointing out that "harassment needs to be defined. This is what has been missing in the current discussions: a reasonable definition. There is from too many quarters an acceptance that almost any "conduct" meets the Supreme Court definition. "bothsidism" seems to be prevalent: Al Franken, an advocate for women's rights, should suffer the same fate as Judge Moore.
The mainstream media has lacked in nuance in interpreting the various conduct that have been alleged. Chuck Todd of Meet the Press has been on a rant about Franken and, more specifically about the Congress: Corporations, including the Media (NBC) have been quick to discipline their own but Congress hasn't. What Todd doesn't mention is that Corporation operate more like a dictatorship and Congress more like a Democracy with "due process". Many Corporate leaders, including in the media knew of the misbehaviors and kept silent until the "appropriate time".
As things stand right now, the pundits may help elect Judge Moore: his middling supporters may justify their choice by saying that "if Franken, why not Moore".
The Supreme Court may not have it exactly right, the law may need better specificity so that different behaviors can be reasonably differentiated, but a proper process needs to be used.
6
"Severe and Pervasive" shall be defined and determined by the victim. Actually, suffice it to say that if the victim has taken the issue to court, any bystander, judge or jury can rest assured that the incident was severe and pervasive. So, no more questions regarding the little sister "but it wasn't any big deal", to big sister "nope, didn't happen". No confusion whatsoever. And no need for male opinions on the experience of being grouped, subjugated, man-handled, fingered, penetrated by a disgusting tongue, breathed on from less than an inch away, looked upon as prey, photographed, diminished, cornered, threatened, berated, gas-lighted, bullied, shamed, marginalized, objectified, belittled, manipulated, black-listed (such a joke) stolen from and destroyed by a dangerous, powerful predator with all kinds of big boy friends in big boy places. Nope. None whatsoever.
1
After an employee files a credible complaint of sexual harassment against a co-worker, the employer's legal counsel tends to view the accused as a liability risk. If the employer takes no action and the accused harasses another co-worker, the latest victim could claim that the employer was aware of the accused's history of harassing behavior and thus negligent in mitigating a foreseeable harm.
The employer's counsel is less concerned about proving sexual harassment in court than facing a six or seven digit tort claim. Seen through a liability lens, even Garrison Keillor's description of benign sexual misconduct looms large as an unacceptable risk.
23
I think the accuser, not the accused, is more typically seen as the liability risk.
1
I agree but I'd like to point out that we have only heard Keillor's side of the story. I would be surprised if his description of the event matched hers.
2
Indentured servitude still exists, but the rules have changed.
Modeling agencies and football teams have a lot in common, where the body is literally the job. The owners or bosses can makes demands as to the upkeep and performance of said bodies, have a vested interest in its health and vitality, and may restrict certain behaviors to achieve that end. But the control ends there - no job holder should have to tolerate personally demeaning treatment of any nature while working, or be forced or intimidated to accept invitations to personal interactions off the clock.
Forget touching, hugging, air kissing, or high fives, shoulder rubs, yoga instruction involving touching, and for gods sake stay clothed at all times, except when the job demands otherwise (thinking of actors here) - this is your responsibility as employer and employee alike. Even if you are personally cool with it, your co workers and managers don’t want to see it, and they deserve an atmosphere of professionalism even more than your need for self expression. Stifle it, and be especially respectful of those who earn less than you do, treat them as people with feelings and not tools, not cuddly playmates you can order around and expect to overlook your personal peccadilloes. Those days are over.
25
So how would the authors suggest a revised law should parse out the "gray area?" Because THAT is the area where most of the celebrity cases fall, and it's the area in which nobody seems to know where to draw the line between simply stupid and very wrong. By ignoring this the authors ignore the most important issue raised by the present frenzy over harassment. In fact most commentators do.
9
Suing someone for being "simply stupid" is perfectly legitimate, if the stupidity does harm.
1
One idea, Forrest, would be for everyone to let everyone else know what he or she considers sexual abuse. If anyone says anything or does anything that you don't want to hear or feel, let the world know that this is unacceptable.
This might help us build our cases.
In most other areas of law, simply being stupid can subject someone to liability. This is called negligence. Employment law is different because it requires a plaintiff to prove that the defendant acted with intent. I think the authors are relying on this requirement to avoid title vii becoming, as many judges have put it, a "civility code." I think before we can tackle the gray area, we need to identify how the law can allow blatant instances of sexual harassment, such as the ones identified by the author here, can continue with impunity.
1
There was an article in NYT titled ‘Revolt’ in France Against Sexual Harassment Hits Cultural Resistance" on Nov. 19 2017. It was a fine article. What is sexual harassment has to redefined . For males it is a sport& passing time.Women are still considered as Second Sex& there are many wrong preconception about women.Women's No is taken as Yes in India. Fils and Tv serials are made on this basis. After all every where we find it is a male dominated society either America, Europe or third world countries. A serious socio cultural world wide has to be developed as it is taking place in France.
19
The complexity of dealing with workplace sexual harassment is evident in this piece by two excellent professors of law.
One judge may decide "sever or pervasive" to be A and a different judge decide it's Z. "Severe or pervasive" -- vague terms, and so is the word "uncomfortable" -- that word alone may trigger a harassment claim and/or investigation. There are "areas of uncertainty" because unlike theft (some object is stolen), sexual harassment has obvious degrees of reality, and what Ms. Jones thinks is harassment may not be the same as what Ms. Smith thinks it is. Instead of "severe or pervasive," what words will define sexual harassment to the satisfaction of everyone (or most everyone)?
As or more important: what consequences should be imposed if one is found guilty of harassment? Where's the sliding scale? Should every accused person be terminated -- a way of eliminating further investigations and trials?
"No tolerance" is draconian. Surely not every incident that SOMEONE might question as harassment rises to the level demanding court litigation. Note that some guides and policies recommend not punishing the person who makes false allegations because to do so might deter other complaints from coming forward. In such an instance: foul but no penalty.
The professors do not tell us what specific terms, levels, punishments would meet their personal standards. With courts already overloaded, a better, more fair means of dealing with complaints seems necessary.
5
I agree with most of what you said, but the courts have become part of the problem and not because they are overloaded. When a judge decides to throw a case out, perhaps it should be run as a consensus decision with two other judges. Having one individual with a guaranteed lifetime position make these kind of decisions about those in the regular workplace does not seem to be working.
Are these suits against the individuals or against the company?
3
It depends, but in many cases, both.
If a company knowingly keeps a predator on staff and does nothing or covers it up, they are complicit and deserve punishment as well.
Much of the conduct described would be a criminal offense and prosecuted by the offices I worked in.
You want big bucks, run the federal gauntlet.
You want a criminal conviction, go local.
10
Even if law does not cover the required premises, there is a three step approach a woman can follow. Step-1, discourage the objectionable behavior in the strongest terms. If step-1 doesn’t work, go to step-2, which is to raise the matter to the person-in-charge of the place where the incident happens. If step-2 does not work, follow step-3, i.e., leave the precincts. The last step could be difficult as it comes with the cost. Since resources are limited, men could use sexual advances to drive the women, who value their integrity more, out of competition. I guess this is the reason why financial independence for women is far more important than for men.
9
CA, you should have added step 4, my favorite.
Clobber the offender. Or, if you're not a fighter, then get a friend to do it.
This always worked for me.
And exactly why should the woman lose her job because a man harasses or assaults her? It isn't my integrity that is at stake when this happens, it is my emotions and body. Why should the man keep his job when the "bad behavior" is his?
I think this needs more than just laws and the judiciary. We need to raise our children to know better. We need to understand that the sexual revolution that happened and is continuing to happen has boundaries that should not be crossed. I am sure that there are cases where the law is needed to set the boundaries, but can't we set norms, customs, practices, that prevent us from getting to that position? I know to a lawyer the law is the answer, but to me this is a much bigger cultural issue that needs to be addressed.
21
Ben, you are spot-on. Somehow there are people who maintain a toddler's sense of entitlement to everything they want all the way to adulthood. I don't know how to counteract bad upbringing, other than to bring back social pressure on people to display good manners and to teach their children to display them.
1
When men get to be the age of most of the publically identified alleged abusers/harassers, it's time to stop blaming their parents for their misogynistic treatment of women.
Ben, please realize that raising children properly requires having children who are responsive to training. There are millions of men -- and not a few women -- who have mental disorders or are evil or have no ability to control their sexual urges who can't or don't want to respond to training.
This problem can't be solved by being warm and cuddly.
This article's approach to the legal question of sexual harassment is too simplistic.
The federal law in question is the 1964 anti-discrimination law referred to as Title VII. That law does not prohibit sexual harassment per se - in 1964, no one had ever heard of sexual harassment. (The phrase "sexual harassment" wasn't even coined until the 1970s.) Title VII prohibits job discrimination on the basis, among others, of gender.
The Supreme Court held in 1986 that sexual harassment is employment discrimination if it is severe or pervasive enough to alter the "terms and conditions of employment" (and that IS a phrase that appears in the text of the law) - what has become known as "hostile work environment" discrimination. Therefore an isolated sexist comment that has no consequences for a person's employment status does not constitute employment discrimination, just as an isolated crude word that is not about sex doesn't constitute employment discrimination, under federal law.
How that standard applies is another question, and the authors fail to specify that the Supreme Court has never approved the precedent they rightly criticize. Whenever the Court takes it up, it will likely reject that precedent
Furthermore, most states and many municipalities have sexual harassment laws that go way beyond Title VII. So it is simply wrong to say that it is "legal" for a boss to grab an employee's breasts.
politicsbyeccehomo.wordpress.com
16
The perfectly correct word "sex" hadn't yet been replaced with "gender," back then, Ecce Homo.
This article provides important information, but the court holdings have to do with the business's liability under federal law, not the "harrasser." The plaintiff sued the business entity, perhaps because it really is the ultimate source of the problem (which I believe is often true) or because it has more resources. The "pervasive" and the "severe" standards have to do with whether the management should have responded before the conduct occurred in order to prevent it.
The "usual" tort law still applies: an unwelcome touching is battery, and threatening the same is assault. But this would be a civil cause of action against the individual (or individuals!) that actually acted, not their employer.
The criminal law is similar, but police and prosecutors could view anything short of violent assault as unworthy of pursuing due to resource constraints. (I am not condoning, only noting.)
At least that is what I learned in law school.
8
Two lawyers say that litigation isn't working well for plaintiffs, but, if more lawyers are brought in to adjust the standards, litigation (handled by yet additional lawyers paid by both sides) will become an effective way to resolve these negative workplace interactions.
If sexual harassment is common enough to merit this article, it is probably too common to be handled efficiently by the court system. American litigation is designed for uncommon situations, not common ones, and for disputes where there are millions of dollars at stake (since legal fees can easily exceed $1 million).
Why not establish a fund to compensate victims and then an administrative process by which victims can collect without having to find and pay an attorney?
(How much to pay out of this fund? The U.S. military pays $100,000 as a "death gratuity" to survivors when a soldier is killed while on active duty, e.g., in combat. So we could start by comparing the harm suffered by an employee to the harm suffered by being killed in combat and then pay out a fraction (or multiple) of $100,000.)
1
This is what Congress already does for itself. The perpetrator is not punished. Our taxes are used as hush money. How will this stop the predator from repeatedly doing the same thing if he has no consequences?
Would you support the same proposal for all crimes against a person? Here's a clue: It's not about the money.
When I was a young woman, my first job was answering the phone at a local grocery story. One day a man called in and recited a litany of sexual acts he wanted to perform on me.
I told the store manager and the police tapped the line. They were listening in when the creeper called in the next time. I tried to keep him on the line for as long as I could, as instructed. So he repeated in detail each of his sexual fantasies.
When I finally got to hang up, an officer called the store. He told me and my supervisor that it sounded like the man was just trying to ask me out on a date. 30+ years later, I can still feel the humiliation and shock of the dismissive way in which the cop claimed that nothing happened, that it was all my imagination. I don't remember what the sexual fantasies were, but I do remember feeling very scared of the police for a while after that.
114
Same thing is happening to me now re a sometimes violent ex boyfriend stalking me. Even as he repeatedly violates multiple Orders of Protection, he is told it is no more than a misdemeanor and is not punished.
I practice employment law in southeastern Pennsylvania. The sense and gist of this article is not true and not reflective of Pennsylvania law or practice. Courts in Pennsylvania do not 'routinely dismiss cases brought by workers who have been propositioned, been kissed against their will, or had their breasts grabbed.' I challenge the authors of this article to find 3rd Circuit or PA authority for such a proposition. My firm takes selected employment discrimination or harassment cases on a contingency basis if they are strong enough. The conduct described would meet the bar we set, and we would not waste or time or resources if we thought judges were routinely dismissing such cases. In Pennsylvania, such cases are presented first to the PA Human Relations Commission or the EEOC, and I'm sure their investigators would be surprised to hear that they are disregarding such conduct. Typically these cases settle, and the plaintiffs receive some financial benefit, which is what has happened generally in the cases now in the public eye. I welcome reply comment from employment defense attorneys in PA, to see if they agree with my assessment.
27
As a layperson who has been reading about hostile environment discrimination cases for some 25+ years, upon fact-checking, I too found this Op-Ed came up short.
Most of the failure to manage this problem is due not to male bias, but to old-fashioned, American management incompetence and laziness. In 30 years of employment in tech, I've seen thievery, angry rants, fist-fights, sexual harassment, sexual exhibitionism by both sexes, obscenity-laden screaming matches, physical vandalism and mayhem, and all sorts of peculiar and damaging behavior, all occurring without any consequence to the perpetrators, usually with damage to some victim, almost always enabled by managers and HR professionals, men and women alike, who think enablement is understanding, dignity and professionalism unnecessary or unknown. Kind of depressing. That sort of inertia can only be overcome by legal means, mean civil suits. Urgh...
6
This article leaves the very incorrect impression that victims of inappropriate touching and other abuse have only Title VII discrimination lawsuits as a remedy.
No.
If someone grabs your breasts without your permission, that is a criminal offense, and you can call the police and report it. If sufficient evidence exists the perpetrator will be convicted and go to jail. Same for the other form of abuse.
Call the police if someone is grabbing your body parts against your will. That is hugely more effective, immediate, and more likely to make the behavior stop at once.
34
While the conduct you described (unwanted kissing, grabbing a woman's breasts against her will, etc.) is a crime, it is misdemeanor battery, which carries a maximum sentence of one year in jail. If convicted of battery, the perpetrator probably won't receive jail time, especially if it's a first offense. In addition, prosecutors and juries tend to not take these "minor" cases very seriously. These facts and the trouble of testifying are a real disincentive for most workers to report such crimes to police. I mention this to remind readers that going to the police isn't always the best option for employees dealing with this type of harrassment.
What? Not illegal? In California, it's a crime.
3
There has to be a change in how society handles sexuality. Male libido is usually stronger than womans and many women totally expect men to initiate pursuit in dating. Add to that the attention seekers and opportunists and Kardashian types and you create a liberal environment that suggests that males are to be enticed into making first move. Its in this environment that some male pigs get confused and can't read the situation or don't want to read the situation. Media, especially internet coverage of entertainment, is constantly giving us articles about how sexy this or that movie star is. Some of these sexist articles that make women into sex objects are written by women.
So we need to have an honest discussion about respect, modesty, expectations, self control and manipulation.....and still have some fun when looking for a mate. Maybe we should all just look for mates on line. That may be the final outcome of all this.
5
It would be a good step to keep the search for mates out of the workplace especially when there is a power differential.
How do you know "male libido is stronger"? Could it be instead that women understand that, for them, sleeping around is taking more risks with regard to sexually-transmitted diseases; pregnancy; and reputation, vis-a-vis men? I think women being less promiscuous than men has nothing to do with any contention that women have less libido.
No wonder, it's a men-led society. Women stand in the second line. Any more questions?
4
A boss grabs me and he goes to the hospital, who cares about laws when immediate response will do the job.
44
And you will be in court charged with assault. Of course, if you are in Florida you could shoot the perp, point out that you were afraid for your life and get away with it as long as you are not black and/or female.
"... who cares about laws when immediate response will do the job."
Is that what you are going to tell the police?
There are many men out there (or were 60 or so years ago) who learned the hard way not to grab me, vulcanalex.
Good for you!
Human sex drive, like the rest of our behavior, is mostly genetic in nature. So thinking that we can legislate genetics is rather foolish. Unfortunately the typical American seems to believe that we can completely control our behavior, with zero failure rate, legislatively. We could easily be heading in a direction that this South Park clips parodies.
https://www.youtube.com/watch?v=ZGWKKI2ky8w
7
WoW.
Just because you are horny doesn't mean you can grope the nearest woman. Just because you are tired, you can't curl up on any floor and take a nap. If you're hungry, please refrain from grabbing food from another dinner guest's plate.
Suggesting that we're trying to legislate sex drives is... well, let's just say you are missing the point. No one has the right to act on their every instinct and harm others. How about being a mature adult and controlling your behavior? How about that for an idea?
You have offered a "South Park" clip as a reference. This tells us more about you than you intended to say.
"So thinking that we can legislate genetics is rather foolish."
So are laws against rape "foolish"?
That would mean all laws are useless. Why legislate murder? Humans are expected to control their behavior so it stays within the boundaries set by society, or face the consequences — consequences such as prison, loss of a job, the scorn of the community.
Good luck with the new judges.
15
Interesting article but incomplete. Obviously corporations do not hand out multi-million dollar settlements because they are generous.
I would suggest that beyond being a criminal act, a civil action for damages is the most frequent means of redress. For major corporations there are published standards that become a part of the employment contract, that could make them liable for damages.
And of course there is the negative publicity that a settlement with a non disclosure clause would be advantageous. The concept of employment at will allows any person to quit for any or no reason, so unless that door was barred, it is reasonable that the employee who remains is making a choice.
It's sort of like hate crimes that are often misunderstood to mean that the crime is the expression of hate. It's not, but only an enhancement of penalty when an actual criminal act is committed.
1
Representatives have spent years dragging the military through the mud - rightfully so - over the way it treated female service members. That's changed since SHARP showed up in 2012, and now any supervisor who behaves this way faces a court-martial. How about those same lawmakers start paying attention to their own backyards? I'd like to know that once I retire, I don't have to fear for my safety all over again in the civilian workplace.
10
Clearly the courts and the definitions of sexual harassment needs to be updated by the Congress and also the Courts to define the line where harassment occurs and where something stupid is said or done. This would help greatly in the court of public opinion. This was a good article in that it tells how ill equipped the courts are to deal with real sexual harassment. There needs to be change and what needs to be done is to put pressure on your representatives in Washington to better define the Supreme Court rulings and their definition of harassment. This needs to be accomplished to take the court of public opinion to the courts of the Government. And there needs to be a fair way for the harassed to present their case without feeling ashamed or belittled. The men that have been called out recently have lost their jobs but what of the damage they have caused and will the accusers be compensated for their ordeal? Thats what courts are for and they can be instrumental in providing such relief.
6
I've been harassed on the job and like many women, out in the world-cat-called, groped, stalked, yelled at if I didn't want to participate in a sexual act with them-and this is a reason I didn't file a lawsuit. I knew it would be way too much of an uphill battle. I was sexually harassed at my brand new job by a fellow brand new employee. I blamed myself and it wasn't until someone else reported it that I came forward. I thought the company would protect me from him, but they didn't. He always tried to talk to me, and sometimes, late at night, there were few people in the building. He was there too and it was just scary. I wish I'd fought back and done more now, but in that moment, I had a lot of personal crises/health problems going on that took priority over even this serious matter. Anyway, the company was a large airline that merged and well, they are a big airline now. I worked in one of their call centers as a reservation agent. I will never forgot what he did to me, however mild his touching was, it has had a terrible effect on me mentally. I will be suspicious of men in the workplace and am considering an all woman's college to transfer to (I'm a CC student) just because of sexual harassment.
21
LK, sounds like you didn’t report any of these infractions. Iif you put up with it how do you expect it to change?
2
I DID report everything, in detail, it just wasn't me who initially reported it. At first, the reason I didn't kick him in the you know where and go running, was because like I said, I blamed myself for him touching me (on my back and rear, along with comments) and I didn't realize I had been sexually harassed until another fellow new employee quit over it a week or so later. I had unbelievable stressors in my life at the time, I was in a very vulnerable state, my husband was very ill and I was young, only 27. This was in 2011 before anyway really cared about sexual harassment to be honest. At that time, I did report everything and the company decided to suspend him for 3 days and that was that. They even SAT ME NEXT TO HIM at a training class after this. I complained to the instructor and moved my seat. The instructor literally said to me, "Wasn't that taken care of?!" in a hostile tone. It was a lot to deal with and there's more to the story so please don't victim blame here.
1
Bob, she needed her paycheck. Is it that hard to understand?
Unlike typical workers, these judges had lifelong job security and powerful positions.
That's a big part of the problem. And, when trump puts his right wing judges in place it will be a bigger problem.
23
These "legal experts" were horribly remiss in their duty to inform the public since they chose to discuss this topic. While acts they mention may not fall under the legal term of sexual harrassment, victims still had other issues with which they could file a claim. The writers left the readers thinking they had no other recourse. Very poor writing and judgement.
7
I hate to break into the echo chamber here, but the authors who are so offended that the Supreme Court required that sexual harassment must be "severe or pervasive" to be found a violation of Title VII neglected to mention that Title VII doesn't say anything about sexual harassment at all. In fact, the Supreme Court created this new cause of action out of whole cloth. The fact that they put some limits on this newly created cause of action should not be the problem. The authors are terribly bothered that these limits are "court-created" implying that it is just the limits that were created, when in fact there has never been legislation prohibiting sexual harassment in the workplace, much less defining it. The reason why people suing for sexual harassment have such a big hurdle is because there is no legislative definition of what it is, much less prohibiting it. So rather than bash the courts who actually gave you your cause of action, you would be better off trying to get your legislatures to pass a law to your liking.
And by the way, grabbing an employees breasts may or may not be sexual haarrasment, but it is sexual assault which is a major felony. Of course, the victim's only remedy is prison for the perpetrator rather than a big paycheck for herself, so the lawyers here may not find that to be worth pursuing. But that does mean that the law says that its ok.
43
The statute doesn’t use the term sexual harassment, but it does forbid discrimination in terms of employment on the basis of sex. Sexual harassment is just a term for terms of employment that women employees have to put up with that male employees don’t, or vice versa. When the behavior rises to the level of a term of employment by being severe or pervasive, it’s sex discrimination. It’s something one sex has to endure on the job and one doesn’t.
3
"In fact, the Supreme Court created this new cause of action out of whole cloth"
Oh my god, no. You are so wrong. The Supreme Court did not create a cause of action for "sexual harassment." There is no such thing. You cannot hold your employer liable for "sexual harassment." CONGRESS- through Title VII of the Civil Rights Act, created a cause of action for gender-based employment discrimination. It is statutory. That cause of action allows an employee--male or female-- to sue their *employer* if the *employer* allows a "hostile work environment" to exist. A hostile work environment exists when sexual harassment is "sufficiently severe and pervasive." The issue is not whether conduct like breast grabbing *is* sexual harassment--- it is-- no court would ever say that it's not--- it's whether the sexual harassment, in total, that the employee experiences is *severe* enough to hold the employer liable for it. The fact that there is no "legislative definition of sexual harassment" is completely irrelevant. That's not why people are suing. They're suing because Title VII gives the the right to sue for gender based discrimination.
You don't understand the issues- the authors are completely wrong to use the term "sexual harassment claim" because no such thing exists. You can put your pitchfork down for the same reason.
We need more women in the judiciary, maybe then some progress can be made.
360
Judges are to follow the law without regard to race, religion, national origin, gender, sexual preference, or anything else.
1
vulcanalex: "Judges are to follow the law ..."
You are have a point, but you are over-simplifying.
Judges must also deal with the *facts* of specific cases. The authors allude to that aspect of the judge's job when they say that: "The judges declare that the conduct does not constitute harassment in a legal sense, and refuse to let the cases go to trial."
The word "conduct" is a reference to *facts*.
Judges must also consider legal precedent, such as Supreme Court decisions, which have the force of law.
8
Good luck with that. Trump is only appointing white males.
2
It appears that grabbing female vs. male breasts get different treatments. Isn’t this sex based discrimination?
1
You never saw those films in hygiene class?
1
May not be harassment, but in most states it sure is sexual assault.
38
The bizarre irony is the holdings in the cases you cite clearly are the types of "judicial activism" or "judicial legislation" which conservatives purportedly eschew. However, these same conservatives embrace this abhorrent "judicial legislation" when defending big corporations and their executives.
Rank hypocrisy - unless money always supercedes the "rule of law."
19
How is it judicial activism to limit court-invented causes of action?
The Keillor business is vague and unfocused.
He: She said she was unhappy, I touched her back to comfort, but went too low. She recoiled, I apologized, she accepted the apology, we're good, right?
She: No statement, just had her lawyer start some as-yet undefined kind of charges or proceedings.
We shall see how this plays out, maybe badly for Keillor. Today it looks more like MPR purging itself of the vestiges of a cranky old man.
8
We are going through a period of rapid and radical change in the relationship between men and women. This is being played out in the workplace because that is where the leverage is. NBC acted rapidly after the accusations against Matt Lauer were substantiated, perhaps out of goodness, but also to provide protection against massive litigation liability.
The so called Pence Rule, no meetings with females without a witness, that was derided by many, doesn't seem so funny anymore to many guys. Workplace relationships are a fact of life, a prohibition has zero chance of success. The trick is negotiating what is OK and what is not. Clearly "No" means "No", not "maybe." Colleges have attempted to navigate this by requiring multiple permissions before proceeding. Then there is the whole issue of relationships that break up, sometimes badly. This was already a problem for companies and organizations, now an entire new layer has been added. I suspect that it will take some time for things to settle out and for the new rules of workplace relationships to become accepted.
8
One concern that must occupy Supreme Court deliberations is the extent to which rulings are likely to cause lower courts to be unmanageably swamped with criminal and civil suits alleging violation of basic rights. If our courts freeze solid because of the sheer number of complaints that hit them in a tectonic shift of our society to some less predatory version, then the confidence people have in courts to be sensible arbiters of our governance will suffer. Finally, at ever-more-fine gradations of what constitutes “harassment”, there inevitably will be disagreement among the people of what it is and isn’t, and that will attack the credibility of courts that must decide one way or another.
So, the Court tries not to get too far out ahead of the people on a very basic issue.
Yet, the public pulse clearly is accelerating on harassment, and just as clearly we’re headed for tighter regulation on what it is, more draconian punishments for it, and as a trailing-effect, more definitive jurisprudence. But that will occur over enough time for potential predators to be warned that the behavior won’t be tolerated, that the standards for calling behavior predatory will firm up, and cause them to avoid it in simple self-defense, thereby avoiding a lock-up of courts. And society will change … over time. So long as the pressure is kept high.
EVERY injustice has been mitigated in our society GRADUALLY, and largely for the same reasons. Society doesn’t change in very basic ways overnight.
10
The courts have emphasized a retraining force on social change since the Reagan years. The criticism of "activist judges" closely parallels the Catholic Church's crackdown on "activist priests" after the 60's and 70's.
The idea that the judicial branch should function to moderate the supposedly volatile court of public opinion is based in our country on such dubious constructs as the 3/5 rule for counting slaves, keeping the vote from former felons, the Electoral College, and gerrymandering to maintain a "balance of power."
All of these ideas are born out of a distrust of democracy. We must understand that we live in an inherently flawed system, Jerry-rigged to accommodate slavery, indentured servants, and manifest destiny.
All of this lives via a fantasy of the inherent superiority of the male white psyche. We are witnessing a reversal of this at the moment of its apotheosis in the Trump presidency. The blatant fact of his absurdly low intellectual capacity will help fuel radical voices in the very places they are currently repressed: main stream media, corporations, celebrities, the Executive Branch, and religious institutions. We have reached "a moment."
12
As has been said about so many things, for so long, the scandal is what's legal.
That became clear to me in my first, and only, year in law school.
7
For men in the workforce there has never been a better time to be gay.
21
That is just not accurate. II worked at an organization where 75% were gay men and the sexual harassment was worse there, among those men, than anywhere else I’d ever worked.
5
There's never been a better time to keep their hands to themselves than now, either. More than a few of them are figuring out their lives would not be train wrecks now had they kept those hands away from their co-workers a long time ago.
30
Until the other shoe drops and we start hearing about that kind of harassment...
4
Lemme see if I've got this straight... my boss grabs my breasts in the office, it's not harassment. A total stranger grabs my breasts on the street, it's assault. Could someone please possibly explain that one to me? Because from where I'm sitting, it implies that in accepting a job I'm accepting and consenting to being assaulted, and that my employer has a legal right to use my body... and I'm pretty sure that indentured servitude was deemed illegal over 100 years ago.
949
It is assault or battery in BOTH cases.
18
I asked a lawyer friend and he said that if the action is assault on the street, then it is also assault in the office.
If true, then at least women could start charging them with assault?
57
Marika, let me explain. The boss grabber does it privately so it is a his words against hers case. A public grabbing happens, well, in public with eyewitnesses.
10
I'd be interested in knowing if Ms Carlson would have preferred Mr. Ailes being arrested and prosecuted for a crime rather than a settlement claim for 20 million.
One does have to admit that money clouds up the waters of justice.
But on another note, it does seem the authors are simply insisting that the judiciary system view harassment, viz., "severe or pervasive" by their interpretation, which is, simply, their opinion. They seem to wish to err on the side of accepting, I presume, one's word. That's shaky ground for a *system* of justice.
E.g., if "supervisors who have subjected workers to sexual epithets and taunting every day for a long enough period meet the standard for 'pervasive'," then presuming that standard is not ridiculous, e.g., more than 30 days (and that seems about 25 days too long, imo), then what is appropriate?
More to the point, what constitutes verbal harassment? I frequent a deli where I am frequently called "honey". Might I (male) not find that offensive? (I don't; I simply don't care.) As a female, were I the worker, would she find that offensive, my calling her "honey"? Is it not commonly a term of endearment?
Put another way, is the concept of tolerance to simply be dismissed? I don't trivialize harassment, sexual or otherwise, but as of late, the rolling definition of "harassment" seems to be "whatever I say it is (if I don't like it; if it bothers me; etc.)."
That simply won't wash, honey(s).
15
Women get to set their level of tolerance at zero, when and where they choose. Male privilege doesn't override a woman's decision to not only say no when asked but to be offended by the act of asking. The misogyny of these reviews is compounded by the whataboutism that tries to rope in female and gay conduct towards men as if they are similar. They are not. Again, women get to set limits and it is outlandish to suggest that men do as well. Going with the flow and taking knocks in life are part both of being a man and of balancing the abuse women receive from men.
10
It's a simple standard. If you wouldn't do it to your mother, don't do it to your co-worker.
37
They all want their money !
The title "Boss Grab Your Breasts? That’s Not (Legally) Harassment" for those not reading the details may perceive misleading information.
8
What NY Times reader wouldn't read the details, Chia?
The crime, the offense is in the breach of the peace, which invites reprisal. Hence the discrimination nexus. If, on the other hand, the offensive action reaches the level of intentional tort, the remedy is a civil claim. Why is that so hard to understand? If you have a cause of action, lodge a claim. If an offense is committed, file a criminal complaint. If your assailant is running for office, say what you will or forever hold your peace.
1
Thank you. I tried to add some enlightening facts as a commentator to the Times article about NBC's termination of Matt Lauer. Specifically I wrote about legal systems in the US which do not uphold women's complaints about having been sexually harassed by a man or woman because the harassment was not "pervasive" and "ongoing" and not collaborated by other witnesses or documents.
1
I would like to know if a woman trying to get away from breast grabbing, hit, pushed or kicked the assailant, could she then be legally liable for assault?. Just asking.
20
I've wondered the same thing. After one employee brought a sexual harassment complaint in our office, our boss told me she was confident that if anyone ever sexually harassed me, I'd do the "smart" thing and smack him across the face. Apparently counter assault is the good girl way to go.
10
No one ever complained to anyone when I knocked them silly after they'd assaulted me, P.G.
Imagine the laughs we'd all have had.
P.G.: That's called self-defense.
And just who set these " standards"? Almost exclusively Males. Shocking.
76
While I appreciate Dean Sperino's and Professor Thomas's explanation of why existing harassment law may unfairly kill litigation that should go forward because judges are basing their decisions on prior case law that sets too high a threshold, I'm confused by their paragraph eight which suggests that a judge is not responsible for fact finding, but is required " . . . to determine whether a reasonable jury could find for the worker."
As a lay person, not a lawyer, this seems strange. I would think that the judge's job, assuming the evidence is legally sufficient to support the charge, is to allow the case to go forward. It should not be the case that the judge is deciding a priori whether a reasonable juror "would find for the worker."
Clearly, "severe" and "pervasive" assessments should be left to the jury.
8
You're right that the judge shouldn't decide whether a reasonable jury WOULD find for the worker. But the authors wrote that the judge's job is to determine if a reasonably jury COULD find for the worker. That's correct. The judge's job at that stage isn't to weigh the evidence that supports the worker against the evidence that supports the employer; that's for the jury. It's the judge's job to determine if there is, in fact, any evidence that could reasonably be credited to support a finding in the worker's favor. (And if there isn't, the case ends there, because there's no reason to send it to the jury.)
3
Srikanth, thanks for your clarification, for I indeed did misquote the authors, for the second reference should read "could" rather than "would." Nonetheless, it seems to me that a judge, in deciding if a case has merit, should assume the evidence is correct when comparing it to the law.
The judge should not consider the reasonableness of the jury, i.e., the judge should not decide that the evidence is not severe enough or pervasive enough for the case to go to trial: these qualitative considerations should be deliberated by the jury in light of the evidence, which includes the environment in which the alleged harassment took place.
The courts are run by men, and hey guys, we know you look the other way to protect your buddies. News taht is no news. they also allow cops to shoot unarmed young black men.
75
Moral and legal are not the same, and is exploited to its fullest. Sexual harassment is about power. Who has the power?...leads into who writes the laws and who interprets them.
Our justice system is not blind. It has both eyes open in whom it serves.
28
Alright already men. Quit it. Quit doing it and quit excusing it and quit trying to get away with it and quit helping each other to do that.
Just because you are the ones in power - in the workplace and the courts -doesn't mean you have the right to do this to us.
We are your wives and daughters and mothers - get it?
We are the women you love, have babies with, honor and respect - no?
Do not do this to women. Do not let other men do this to women.
What kind of men are you, to let this go on.
486
Hear, hear.
12
weren't most of these men raised by their mothers?
5
I don't do it, never had anything to do with it, never was a witness to it. Don't tar us all with the same brush. I can't help the gender I was born.
4
How does one legislate something that is so variable? What objective criteria can one establish that will effectively deal with such a wide spectrum of behavior? What is sexual harassment to one person is playful banter to another.
There is no doubt that there is pervasive, unwanted, and inappropriate behavior, mostly by males on females. Having safeguards in place to inhibit this is critically important. But the devil is in the details. Does it depend entirely on the woman's perception of the behavior? If so, how can a man determine whether an overture will be considered offensive or flattering? Should every man abstain from every display of interest? I don't think that would be something most women would desire. So, we're left with trying to codify what is acceptable in a bilateral exchange with a broad spectrum of intentions and outcomes.
Certainly, there are clear lines of unacceptable behavior, but I suspect that most interactions between men and women fall into a gray area where individuals' perceptions vary greatly and personal boundaries are fluid. So...
How do we prevent pernicious behavior without stifling the sexual dynamic that will always be a part of human behavior? We'll never be unanimous in our opinions, that much is certain.
186
Murder is "variable" too. Happens in many different ways, places, times.
Shall we ignore it too?
19
Basically, it is this. If a man does anything that is suggestive of a sexual approach, whether or not it IS a sexual approach, such conduct may rise to the level of harassment. Teasing around at a woman in the workplace is a dangerous thing to do if you are a man.
9
We're talking about sexual harassment in the workplace, not at the neighborhood watering hole. If you're uncertain where the boundary is, you should probably err on the side of keeping your job.
60
I applaud the women and men (we watch House of Cards too) of the US for standing up to male sexual predators. It is clear that the problem is "pervasive and severe" in the US and needs to be addressed head on.
In many countries Latin America, sexual harassment laws in the workplace have been passed; in most cases the threshold in our region is considerably less than the severe and pervasive standard of the US. But the cultural norms of machismo and sexism have limited the application of the laws. The situation is even worse in university environments where sexual harassment by male professors is practically institutionalized. In several Latin American countries, sexual harassment laws don’t cover educational institutions.
We are waiting for our Harvey Weinstein and Kevin Spacey moments. We need to bring this conversation to the forefront. US feminism, beginning in the 1960s with its emphasis on reproductive rights, equal wages and opportunities, helped shape many Latin American feminist movements particularly among the middle and upper-middle classes. In turn a more popular, more autochthonous feminism also emerged to confront violence (feminicide), injustice and inequality.
The issue of sexual harassment potentially creates common ground for all strands of feminism and resistance to gender and sexual discrimination to unite. We would love to see the dominos that seem to be falling daily in the US begin to fall just as precipitously and decisively here.
55
In Brazil, professional men who admitted that they murdered their wives were not prosecuted for murder, because it is OK to murder your wife who upsets you with jealousy, even if the jealousy is unfounded.
4
@Chris So-called honor killing was outlawed in 1991 in Brazil. The region is capable of changing. It needs persistent pressure from below (civil society, women's groups, aware citizens) and from above (international community, international NGOs , media, religious and academic groups). http://www.nytimes.com/1991/03/29/us/honor-killing-of-wives-is-outlawed-...
10
The standard is severe OR persuasive
Many women commenters defend Franken, in advocating that his "air-grab" is not really harassment.
They buttress their claims by citing the flak jacket, an inch gap, shadows under his hands, his comedic nature, all adding to his innocence.
And you say they now have the law is on their side?
Maybe it's time for others to move to someplace that treats women better -- Saudi Arabia?
5
I'm not sure it's a good idea to criminalize people who try to kiss girls, put their hands on their shoulder and ask them out for dates. It may be inappropriate and bad in some cases but as soon as the legal system kicks in you're going to get a lot of excessive prosecutions and imprisonments for cases that weren't that bad.
5
You think it's ok to try to kiss " girls" without their permission?! Well, folks, THIS IS THE REASON men get away with this type of behavior.
63
Sexual harassment law is civil law, not criminal law. There is no punishment by imprisonment in US civil law. No one has ever gone to prison for sexual harassment. Now if it meets the criteria for assault or battery or rape, that's another situation. Come to think of it -- kissing someone against their will seems like a classic definition of "battery" to me: " In criminal law, a physical act that results in harmful or offensive contact with another's person without that person's consent." Why would you think that kissing someone against their will would be harmless? Yuck.
71
Would you feel the same way about a gay male supervisor doing these things to a straight male employee? Would it be okay for the supervisor to kiss the employee?
17
The authors are correct that the remedy is legislative, but they imply wrongly that the courts simply aren't enforcing the law. Title VII doesn't refer to "sexual harassment." Instead, it prohibits discrimination based on sex (and other characteristics). 42 U.S.C. § 2000e-2(a)(1). The EEOC then concluded that "sexual harassment" is a form of sex discrimination. The EEOC referred to such misconduct that creates a "hostile work environment." In Meritor Savings, SCOTUS interpreted that to mean, "For sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'"
34
And how about putting some judges on the bench who have represented regular people, for example, in employment discrimination or civil rights cases, or who are themselves regular people?
7
Good luck getting that laudable project past the Federalist Society and the GOP-controlled U.S. Senate!
5
I would like it if the PUBLIC could vet judges and the police, both before they become an officer of the Court. I think the public has a right to ask prospective judges all kinds of questions to see if the Judge has the back of the people, not corporations.
6
and of course I should have said, who are women!
What are the odds that a bunch of old guys with power are going to write more effective laws to control other old guys with power? Not that good... And who owns these old guys in government? Other old guys with power. What a mess...
493
"... a bunch of old guys with power ..."
There are women in government too. And if you really believe what you say, you need to explain why there are laws against rape.
"Old guys with power" are a severe minority in this country. Congress is what it is because people continue to vote these people into office. And this is at least partially because the left is reliably terrible at persuasion.
What are the chances that fresh flocks of daring dudes would fruitfully engage in a seamless transition forward from good-bad-or-whatever-is-now to better-later-on, including laws, law and order, and law abidance-cum-enforcement, from among themselves? What are the chances that their feats would forbear force, fear or freakiness? Cooperation, consensus or continuity-- what are the chances that these would cease to be casualties of oversight, overindulgence and overbearing?
What was the case that generated the headline? The authors make the statement but in the middle of the article at the end of sentence. Seems like it should have been set out at the beginning with a lot more of the facts.
2
Where was The NY Times indignation when President Clinton took advantage of Monica Lewinsky? No one at The NY Times called for his resignation. This is all politics.
12
Nothing in this article cites any politician. So why do you bring any of Bill Clinton up?
"Indignation" doesn't matter. Court process and penalties do. The Clintons ended up making a settlement with Paula Jones for 0.89 M$, Bill was impeached but ultimately not removed for lying about his adultery with Monica.
Monica has persistently, to this day, denied that she was a victim. You have no grounds there on that one.
96
According to monica, it was consensual. Thus no harassment. And she never filed for any harassment.
102
What's politics? Matt Lauer? Roger Ailes? I don't get it.
7
Do female judges take sexual harassment more seriously than male judges? If they did, that certainly would not be a surprise, but should they? I think the correct answer is that male judges need to take up the slack and do their jobs.
5
Lanette - I think you're missing the point a bit. It's not the judges' gender that is the problem, it's the way the law was written and previously interpreted that set a precedent.
1
Well, this explains it. Geez. I guess rape is severe enough to register on the Richter scale of sexual harassment, but not much else in the real world. That is the real world outside of celebrity lawsuits that are more easily settled in the millions of $. We have a lot of work ahead of us if the acts listed in this article were not considered sexual harrassment. Let’s get to work!
61
The journalists fail to indicate that employers have and continue to fire men for such behavior despite judges dismissing cases.
@MDCooks8 - What do you base your comments on? Because it's not on facts. Look at the Matt Lauer story --- NBC did nothing in the past when complaints were made.
Perhaps you worked at a company that's an exception to the rule, and if you did you were fortunate. I've worked for many years in the corporate world and can tell you that men were rarely even disciplined, let alone fired. The top people are always protected and HR is just an extension of corporate, everything is set up to protect the company's reputation and/or shareholder interests. Hopefully the victims who are effecting change in the film/TV/government sectors will prompt change in the every day workplace as well.
1
Workers work and bosses boss. What could possibly go wrong in an arrangement like that? All bosses should be women and the workers men, just like the ants. They seem to get a lot done without any problems.
49
The worker ants are not men.
4
Like the ants?
Not so fast. The worker (and soldier) ants are all female an (except the Queen of course). The male ants' only role is to mate with the virgin Queen. Not so bad, except after fertilizing the princess they die. But, if you have to go...
6
Now you're talkin'!
This is fake news.
There is no way that grabbing a woman's breasts is not harassment in a court of law. Not only is it a civil offense, it is a crime. Don't believe it? Go down to the local mall and grab the breasts of the first woman you see. You'll be in cuffs and charged with battery before you can count to one. And we're being asked to believe that a crime that can result in loss of liberty isn't actionable in civil court? Gimme a break.
The authors here, who have a book to sell, are clearly cherry-picking and leaving out pertinent stuff. While there may be a bad decision or two out there over the years, and the authors, notably, go back nearly 30 years, there is no way in heck that judges are routinely tossing credible cases involving supervisors grabbing breasts. Just no way.
Shame on NYT for publishing this. We're already in enough of a misinformation pickle without this nonsense.
111
You make a lot of observations without citing any specific instances or actual facts. Most pertinently: grabbing a woman's breasts is considered the crime of assault .... it is not, in every case, automatically considered sexual harassment. Hence this article following the thread of this particularly absurd exception. You are right to balk at how ridiculous this is - but you're balking for the entirely wrong reasons.
16
You're right, I don't cite specifics. That is because I am not a lawyer and I don't much feel like going to the trouble of researching the matter, but it should not be difficult to refute the contention here, especially in the headline, that supervisors can grab breasts with impunity. Not to nitpick, but unwanted grabbing of breasts would be, I think, battery as opposed to assault, but the point remains either way.
Yes, it isn't automatically harassment. I understand that. If the grabber was invited, or had reasonable belief that he'd been invited, to grope, that would be one thing. But, as presented here, it's laughable, or would be if the subject weren't so serious.
If the thrust of this piece was true, there would be no sexual harassment cases brought, nor would companies pay out big money to settle claims. That, in itself, disproves the authors' thesis.
3
So, you base your evaluation of the veracity of this article on .... what? data? evidence? case history? or just that it doesn't fit in with your world view?
14
All that is required is the next middling case brought on harassment case gets appealed to SCOTUS in the sense of lack of due process with finding of fact.
Just needs a case. Doesn't even have to be adjudicated, although that would solidify the ruling.
I would think there is about a million good ones available today...
5
These cases aren't about the law, they're about employer liability.....
Any decent lawyer can make the case that an employer has an obligation to provide a safe work environment and go from there....
And if the behavior was convincingly traumatizing, and established protocols were followed, that should do it.
Remember, these situations must attempt to defend the accused, too, against false accusations.
It's a jungle out there...
6
EEE appears to be mistaken. The article concerns cases that judges do not allow to be brought to trial. In a trial, the accused can defend themselves against accusations.
7
agreed.... but many get adjudicated in civil court, or out of court.... and then employer liability is the club that beats some justice into them.
3
Agreed in principle, but I think in practice employer liability is not very effective.
3
Readers should not take this commentary as suggesting that grasping a woman's breasts without her consent or like conduct is legal. Whether or not it constitutes "sexual harassment" under employment law, it still represents the crime of assault. This means (1) the assaulted employee should consider filing a charge with the police, and (2) if a company ignores claims that an executive assaulted an employee, it is likely to have some liability if and when the executive subjects another employee to an assault.
295
Yes, thank you. We do not have to put up with this.
8
Yes - this is the correct way we should be framing such incidents, not some vague harassment definition that seems to involve counting angels on a pinhead.
3