Sexual Harassment and the Law
Where the Law Draws the Line
Many of the sexual harassment cases making headlines involve criminal behavior. Sexual assault and related offenses are defined in different ways in different states. To take just one example, New York law prohibits “forcibly touching the sexual or other intimate parts of another person for the purpose of degrading or abusing such person or for the purpose of gratifying the actor’s sexual desire.” The statute helpfully adds that this “includes squeezing, grabbing or pinching.” It should not be surprising or puzzling that such behavior is not acceptable.
Gentlemen, you already know not to invite a woman to discuss a job and then meet her wearing a bathrobe and expose yourself. Charlie Rose reportedly did that, and according to several women, Harvey Weinstein did that — and more. Masturbating in work contexts is not only unacceptable but illegal, yet that’s what Louis C.K. did. One does not stick one’s tongue down the throat of someone during a discussion of job prospects, as two women have claimed NPR’s Michael Oreskes did. You do not kiss a colleague and lick her, as actor Andy Dick did.
Men do not expect to report to work and have their crotch grabbed. Women don’t, either. It should not be frightening or confusing to be told this. But we understand why men are scared: Most sexual harassment does not involve sexual assault, and if you’ve ever told an off-color joke at work, asked out a colleague, or maybe been a little handsy at a holiday party (or know someone who has), we bet you’ve been thinking a lot about sexual harassment lately.
Employment law has a sober and balanced approach that is fully protective of the rights of men accused of sexual harassment. It defines two kinds of sexual harassment:
Quid pro quo harassment. Making sexual favors a condition of any workplace opportunity is illegal under federal law. To win a lawsuit alleging it, a woman has to prove that someone with authority over her threatened to take a negative employment action unless she engaged in a sexual behavior — or promised her a promotion, raise, or other benefit if she did. Congressman John Conyers paid thousands of dollars to a staffer who said she was fired for refusing his sexual advances.
According to accounts published in New York magazine, Roger Ailes tied women’s work prospects to sex again and again: “If you want to play with the big boys, you have to lay with the big boys,” he told a woman seeking a contract with the Republican National Committee in 1989. “No girls get a job here unless they’re cooperative,” he is reported to have said to a frightened 19-year-old in the sixties after he grabbed her and forcibly kissed her. Fifty years later, TV host Gretchen Carlson says, Ailes demoted and ultimately fired her for refusing to have sex with him. Fox settled Carlson’s harassment case for $20 million. But it extended Bill O’Reilly’s contract after O’Reilly settled a sexual harassment case against him for $32 million. Cases do not settle for that kind of money unless something has gone seriously wrong.
For men worried about quid pro quo harassment, the simplest approach is not to date someone you supervise. If you do, make sure it’s consensual and remember that whether you stay together or break up, with respect to workplace issues you need to behave exactly as you would have if you’d never dated her. If you can’t do that, don’t date people you supervise. All this applies, of course, not only to men but also to women.
A hostile work environment. Here again the legal test is quite protective of those accused of sexual harassment. To meet the legal definition the conduct must be unwelcome, the environment must be one that a reasonable person would consider hostile, the plaintiff herself must feel it to be hostile, and the behavior that makes the environment hostile must be severe or pervasive.
Moreover, plaintiffs very rarely win hostile environment cases that are based on a single “severe” incident. Almost invariably, they need to prove the behavior was “pervasive.” How pervasive?
Very. In a 1993 Supreme Court case, a woman’s boss made such comments as “You’re a woman, what do you know,” “We need a man as the rental manager,” and “Dumb-ass woman,” and asked her in front of coworkers if she wanted to “go to the Holiday Inn” to negotiate a raise. He asked women to retrieve coins from the front pockets of his pants and threw objects on ground and asked women to pick them up. When the plaintiff complained to the boss about his conduct, he said he was joking and promised to stop, but he didn’t. She quit, sued, and won: She had made it clear the behavior was unwelcome and that it personally offended her. The court found that a reasonable person would have felt the environment was hostile and that the hostility was pervasive.
This is so far beyond what most men would ever imagine is appropriate that they have little to fear. Still, the requirement that the plaintiff prove that she herself felt an environment to be hostile adds another layer of protection. So women need to speak up to demonstrate that they’re personally experiencing that feeling, not just to show that an advance is unwelcome. “That makes me uncomfortable. We are at work” is enough.
It’s OK to socialize with and date colleagues. But the law regarding “retaliation” requires that a colleague must be able to decline an invitation without consequences. The easiest way for a company to lose a sexual harassment suit is for a plaintiff to prove that she turned down an advance or complained of a hostile environment and then suffered retaliation.
A new textbook example comes from Uber. Susan Fowler’s manager propositioned her on the company chat site. She took a screenshot of it and went to HR, which gave her a choice: Either she could transfer out of her team, or she could stay. But if she stayed, the people in HR said, her boss might give her a poor performance review and they could do nothing about it.
Here’s the problem: Giving someone a poor review because she turned you down is retaliation, which is illegal. Fowler didn’t want to transfer, because her team’s project was a great match for her specific skills, but she decided to do so. Fortunately, she found other great work to do, but unfortunately, she continued to encounter sexist behavior, which she reported to HR. One day her boss called her in and threatened to fire her if she didn’t stop making complaints. That’s retaliation too — and it’s illegal.
—Joan C. Williams
