Sexual harassment, like so many other experiences, is in the eye of the beholder. What feels like offensive misconduct to one person might seem like harmless workplace antics to another. That’s why the law imposes both an objective and a subjective standard in harassment cases. Courts and juries must look both at whether the behavior was objectively hostile, offensive, or abusive, and at whether the victim actually perceived it that way. And, when applying the objective test, it isn’t enough to ask whether we, as judges or members of a jury, would find the conduct offensive. We must ask whether a reasonable person in the victim’s situation would feel harassed. Because sexual harassment is still overwhelmingly an offense men perpetrate against women, this standard is in most cases referred to as the “reasonable woman” standard.
A recent case from Texas makes clear how important this distinction can be. A federal appeals court reinstated a lawsuit that had been thrown out, finding that the female plaintiff deserved a trial on her allegations of sexual harassment and retaliation. At the most general level, she claimed that she was fired after four days on the job as a leasing manager in an apartment complex, after she complained that two coworkers sniffed her. The district (trial) court found that she hadn’t shown that this was objectively offensive, in part because neither coworker had physically touched her.
What do you think so far? If you’re thinking the trial court might have been right, consider these additional facts: She worked in a small office. The two men would come in, sometimes together, crowd and hover over her as she sat at her desk, and sniff her in a sexually suggestive manner. They did it 12 times over the course of a few days. They also sniffed her as she left the bathroom. One of the men sat across from her and stared at her for several minutes, wearing shorts and visibly aroused. When she complained in a staff meeting, one of the men claimed to have a medical condition and the other said he “needed to get a release.” When she complained to a manager, she was told, “you know how men are like when they get out of prison”; one of the men had a prison record. Then she was fired.
Does this sound more menacing now? To me, this case illustrates how important it is to apply the objective standard in a manner that captures the entirety of the victim’s experience. “Two coworkers sniffed me” sounds like the beginning of a comedy routine. But when you widen the frame to include the physical surroundings, sexual comments, air of menace, and complete lack of concern for her complaints, it looks a lot more like harassment.