Sex harassment laws evolve along with society
Arecent Boston Globe headline referred to “the sexual harassment mess.” Part of what makes the current discussion (if that’s the right word) so messy is the wide range of behaviors that get grouped together under that heading. Some of the things certain famous people have allegedly done go right past harassing all the way to felonious. For example, in New Mexico locking a person in a room in order to pressure her (or him) into sex is called false imprisonment. It’s punishable by eighteen months in prison.
On the opposite end of the spectrum, some men fear that merely telling a raunchy joke in mixed company, something that would have been considered a breach of etiquette a couple decades ago, could be classified as sexual harassment today.
One source of confusion is that your employer might (and probably should) have a sexual harassment policy that is stricter than the definition used in employment law. Leering “jokes” that might be beneath the notice of federal law can still be a reason for HR to schedule a meeting.
New Mexico’s Human Rights Act covers employers with four or more workers. Once an organization grows to 15 employees, it becomes subject to federal law’s Title VII. And here’s the most important thing about both statutes: they prohibit employment discrimination. They don’t directly prohibit sexually obnoxious behavior. As explained by the EEOC’s guidelines, unwelcome sexual conduct violates Title VII only if it becomes “a term or condition of employment.”
The celebrity cases provide clear-cut examples of one classic form of sex-related job discrimination. When continued employment is made contingent on sexualized activity with the boss, that’s quid pro quo harassment and it’s a violation of federal law. As the essayist Laura Kipnis puts it, powerful men like Harvey Weinstein and the late Roger Ailes made themselves “career gatekeepers” by the demands they allegedly placed on women seeking employment, or desirous of keeping it.
In the Boston Globe, Margery Eagan describes a situation she encountered in one of her first jobs in journalism, years ago: “[My] boss sent me to what we called a ‘dirty’ bookstore and told me to stay there until I’d written down every raunchy title. When I returned, he called me into his office, alone, and told me to read those titles out loud to him.” She didn’t tell anyone. Who would she have told? “He ran the newspaper.”
Quid pro quo harassment is an abuse of power. But sexual harassment can also occur between people at the same level on the organizational chart. This is called “hostile environment” harassment. As a practical matter, successful hostile environment lawsuits involve two distinct components. Harassment is only the first. The second is the company’s failure to respond effectively after learning about it, which is what turns reprehensible on-the-job behavior into job discrimination.
In one case decided against the company by the federal 10th Circuit Court of Appeals, an airline employee was repeatedly pressured for sex by a co-worker. He complained to his station manager. According to his subsequently-filed complaint, the station manager replied that “he did not want to hear about it.” Bad idea. A manager who requires a subordinate to tolerate continued harassment as a condition of employment has created a hostile work environment.
In a recent public appearance, the comedian Samantha Bee
noted how easy it is for men to avoid committing sexual harassment. Referring to acts allegedly performed by Weinstein and Louis C.K. in front of numerous women, she pointed out that she had refrained from doing the same in front of the audience. “Easiest thing I’ve done all day! … Effortless!”
It’s almost as easy to avoid committing more mundane forms of sexual harassment, too. A 2003 study of arbitration decisions found that most workplace harassers fell into one of two categories. “Some harassers appear to target a small number of victims persistently, while others appeared to harass any and all targets whenever possible.” Most of the claims would have been prevented if the men involved had avoided being a stalker or a boorish jerk. Not that difficult, really.
For employers, the lesson is even clearer. It’s essential to take claims seriously, investigate them in good faith, and put an end to harassing behavior. Sensible policies and fair enforcement can prevent most complaints from ever reaching the stage of a legal claim.
If you’re the victim of sexual harassment, preserve the evidence. Don’t delete offensive emails and texts. You have only a short time to take legal action, so don’t delay. Consult a lawyer with experience in this highly specialized area of the law. Do it today.