Tag Archives: sexual harassment

Smells Like a Lawsuit

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.

California Law Affirms that Sexual Harassment Doesn’t Have to Be Sexy

In August, California amended its sexual harassment laws to add this sentence to the state’s Fair Employment and Housing Act:

“Sexually harassing conduct need not be motivated by sexual desire.”

The legislature was responding to a decision by a California appeals court in a same-sex harassment case. The plaintiff employee in that case, Patrick Kelley, alleged that his male supervisor called him a bitch and a punk, made crude comments about having sex with him, and laughed when another employee did the same. This behavior followed Kelley to other worksites after he asked to be transferred, as the story spread among his coworkers. The Court tossed Kelley’s claim because he couldn’t prove that his supervisor acted out of genuine sexual desire or interest. In other words, the case turned on whether Kelley’s supervisor actually, in his heart, wanted to have sex with Kelley (in ways he graphically described), or just said so in front of others in order to demean him.

If all sexual harassment cases turned on the question of sexual interest, you can imagine the problems of proof. How do you show that a harasser “really” felt desire toward his victim? Would the harasser’s sexual orientation be an issue in the case? Setting that aside, sexual interest shouldn’t matter. It’s just as illegal for a supervisor to make demeaning, sexist comments as to make unwanted sexual propositions (whether or not the harasser “genuinely” wanted to follow through on them). The reason why sexual harassment is illegal is that it limits job opportunities. When all is said and done, sexual harassment is about power, not desire.

In the context of opposite-sex harassment, there are certainly some ugly cases involving sexual come-ons, groping, and even assault. But some of the ugliest situations arise when women enter traditionally male fields. In these cases, there are no expressions of “desire” or “sexual interest.” Instead, women are threatened (with rape, assault, and more), endangered, and frightened. Their tools and vehicles are sabotaged; they are called horrible names; they are stranded without support. Although some courts had trouble seeing the harassment when it was so decidedly unsexy, most have now come around.

At least in opposite-sex cases. That the California case issued its decision in a same-sex case isn’t surprising. Courts have not known what to do with homophobic behavior on male-dominated worksites. Is it okay if none of the employees are actually gay? Or if the supervisor threatens to have sex with all the guys, not just those who are ridiculed in gendered ways? If there are no women present, is this behavior really “sex-based”? But the answer seems pretty simple. In this case, Kelley’s work environment was poisoned by a supervisor’s crude sexual comments and behavior. Those comments were sex-based, in that they were about Kelley’s masculinity and sexual orientation. The case shouldn’t have turned on whether the supervisor was sincere when he said he want to have sex with him.

Summer Jobs and Sexual Harassment

June is here, and it’s time for teenagers everywhere to don their uniforms, paper hats, and  flair for their summer jobs (if they’ve been lucky enough to land one). But be careful out there kids: Sexual harassment of teens is a big problem, particularly for girls. Just yesterday, the EEOC announced that it had settled a case for $290,000 against a Dunkin’ Donuts franchise, in which a manager had repeatedly touched, hugged, and made lewd comments to female teenage employees.

Although the EEOC keeps statistics on sexual harassment charges, the agency doesn’t provide the age of the complaining employee. And of course, just like adults, many girls choose not to complain or file a charge. According to one study cited in the PBS program “Is Your Daughter Safe at Work,” 200,000 girls are assaulted in the workplace every year. A 2005 study showed that almost half of the teenage girls surveyed had been harassed at their jobs.

These numbers are high, but unfortunately not that surprising. Egregious sexual harassers are predators, and predators choose their prey with care. Teenage girls are targeted precisely because they are the least experienced, least powerful, and least likely to complain. To help combat the problem, the EEOC has set up its Youth at Work website, which informs teens of their rights and responsibilities under the laws that prohibit harassment and discrimination.