From: nsbrown@zeus.IntNet.net (NS Brown)
Newsgroups: alt.feminism,soc.men
Subject: SEXUAL HARRASSMENT -- FACT v. MYTH
Date: 15 Sep 1994 13:43:15 -0400
Organization: Intelligence Network Online, Inc.
Lines: 206
Message-ID: <35a13j$hos@zeus.IntNet.net>

To All:

There's been a great deal of debate about sexual harrassment
over the last few weeks on alt.feminism and other newsgroups.
Alas, much of it has been debate "springing from a firm base
of ignorance," to quote one of my old law professors.  Much
of the debate has centered on what people *think* sexual
harrassment law is, without regard to what it *really* is.
So, to give everyone (who doesn't already know) a firmer
base than ignorance, a quick primer on the law of sexual
harrasment under Title VII of the Civil Rights Act.
(NOTE:  this post will refer specifically to sexual harrassment
in the workplace; the same general principles apply in academic
settings as well.)

Sexual Harrassment comes in two forms -- "quid pro quo" and
"hostile working environment."  The former is pretty straight-
forward:  "sleep with me or you're fired."  Essentially, "quid
pro quo" harrassment involves making conditions of employment
(hiring, promotion, retention, etc.) contingent on the victim's
providing sexual favors.  Very few people have a problem with
this, and I'm not going to spend any more time on it unless
someone has questions.

"Hostile working environment" harrassment is the one people are
really arguing about.  So what is it?

"When the workplace is permeated with 'discriminatory intimi-
dation, ridicule, and insult,' that is 'sufficiently severe or
pervasive to alter the conditions of the victim's employment
and create an abusive working environment,' Title VII is violated."
_Harris v. Forklift Systems, Inc._, 114 S.Ct. 367 (1993) (quoting
_Meritor Savings Bank v. Vinson_, 477 U.S. 57 (1986)).

"'[M]ere utterance of an ... epithet which engenders offensive
feelings in an employee does not sufficiently affect the
conditions of employment to implicate Title VII.  Conduct that
is not severe enough to create an OBJECTIVELY hostile or abusive
work environment -- an environment that a REASONABLE PERSON would
find hostile or abusive -- is beyond Title VII's purview.  Like-
wise, if the victim does not subjectively perceive the environment
to be abusive, the conduct has not actually altered the conditions
of the victim's employment, and there is no Title VII violation."
_Harris_ (again, quoting _Meritor_; ALL CAPS added for emphasis
by this writer).

"[W]hether an environment is 'hostile' or 'abusive' can be
determined only by looking at all the circumstances.  These
may include [a] the frequency of the discriminatory conduct;
[b] its severity; [c] whether it is physically threatening
or a mere offensive utterance; and [d] whether it unreasonably
interferes with an employee's work performance."  _Harris_
(logical indicators [a], [b], etc. added by this writer).

This is *the* law on sexual harrassment, as handed down by a
*unanimous* Supreme Court in 1993.  (Justices Scalia and
Ginsburg wrote concurring opinions, essentially arguing that
only [d] above -- whether the speech/conduct unreasonably
interferes with an employee's work performance -- should
have been the *only* guiding criteria necessary.  I take a
middle view, arguing that [d] should be NECESSARY and that
[a], [b] and [c] may be used by the finder-of-fact in making
a determination of whether [d] exists.  Both concurring
Justices agreed that the [d] criteria would have been met
in the _Harris_ case, and thus the court found 9-0 in favor
of Harris.)

So, how can the law of "hostile working environment" be put
into layman's terms?  Here's my attempt:

HWE -- [a] speech and/or conduct, [b] of a sexually discriminatory
nature, [c] which was neither welcomed nor encouraged, [d] committed
by or permitted by a superior, [e] which would be *so* offensive
to a reasonable person as to [f] create an abusive working envi-
ronment and/or [g] impair his/her job performance.

Piece-by-piece:

[a]  "speech and/or conduct" -- sexual harrassment can be mere
words ("dumb ass woman," _Harris_), words in conjunction with
conduct (asking the employee to dig coins out of one's own
pants pocket, _Harris_) or conduct alone (fondling a woman's
breast, _Weeks v. Greenstein_).

[b]  "of a sexually discriminatory nature" -- remember that
Title VII IS NOT A SPEECH CODE.  This is a *discrimination*
law.  The issue is not the content of the speech or the
precise nature of the conduct so much as whether that speech/
conduct is directed at the employee on the basis of his/her
gender (or has a disparate impact on the basis of gender).

[c]  "which was neither welcomed nor encouraged" -- if the
defendant (employer) can show that the plaintiff (employee)
welcomed and/or encouraged the speech/conduct, there is no
discrimination claim available.  This ties in to the _Harris_
requirement that the victim must *subjectively* have been
offended by the speech/conduct.  That is, the plaintiff
*can't* argue "Well, I wasn't offended at the time, but after
I got fired for stealing I talked to some people and found
out that a *reasonable* person *would* have been offended, I
decided to sue anyway ...."

[d]  "committed by or permitted by a superior" -- again,
Title VII IS NOT A SPEECH CODE.  It's a *discrimination* law.
Thus, the plaintiff must show that his/her *superior* "knew
or should have known" about the speech/conduct and did not
intervene.  (Obviously, if the superior is the one doing the
harrassment, the requirement is met.)  So what does "knew or
should have known" mean?  It means that "an ordinary, reasonable
prudent person in like or similar circumstances" would have
known.  It means the employer *can't* say "Yeah, a reasonable
supervisor would have known this was going on, but I'm a lousy
supervisor and *I* didn't know, so don't hold me liable ...."

[e]  "would have been *so* offensive to a reasonable person" --
One of the biggest myths about sexual harrassment law is that
"the woman gets to decide what she likes and what she doesn't."
Balderdash.  The law has *always* had a "reasonable person"
standard (though _Harris_ did away with the previous terminology
of "reasonable woman").  It's not enough that a given employee
was offended.  That employee might, after all, be unreasonably
sensitive or thin-skinned.  The plaintiff must show that "an
ordinary, reasonable, prudent person in like or similar circum-
stances" would have been similarly offended.  In other words,
the plaintiff *can't* argue "Well, I know a *reasonable* person
would have shrugged this off, but *I'm* not reasonable and *I*
was offended ...."

[f]  "create an abusive working environment and/or" -- this is
an area where the law needs to be developed.  I would argue that
this element should be conjunctively (and) linked with [g], below.
However, _Harris_ seems to indicate a disjunctive (or) link, and
until we know better, we ought to assume the more general (or)
linkage.  So what does this mean?  It means an environment which
manifests hostility or abuse toward one or more employees, on
the basis of his/her/their gender.  It means an environment where
the employee is *distinctly* (remember, this is an objective
standard) made to feel unwelcome, unwanted, scorned, ridiculed,
intimidated ... on the basis of his/her gender.  It is, in the
words of Justice Scalia, an environment where "working conditions
have been DISCRIMINATORILY altered" for some employees.  (Emphasis
added.)  The underlying theory seems to be that the harrasser is
attempting to get the victim to either quit, or screw up enough
to get fired (though the latter falls under [g], below).  It's a
matter of "I may have to hire you, but I can make you so miserable
you won't want to stay" ... on the basis of gender.  Once again,
Title VII IS NOT A SPEECH CODE.  It's a *discrimination* law.

[g]  "impair his/her job performance" -- this may be seen as
merely an extension of [f] (above), or it may be that [f] is
a way to demonstrate this element.  Either way, this element
implies that the speech/conduct is so offensive that a reasonable
person's job performance would be impaired.  At this level, we
*are* talking about trying to make life so miserable that the
victim will screw up enough to get fired.  An example:  let's
assume that Defendant MegaCorp fired Plaintiff Vicki, citing
as its reasoning that "she didn't get the filing done in a
regular and orderly manner."  Vicki is able to show that the
file room was right next to the men's restroom, and that more
often than not, when she went to the file room Mr. Jackson
would be in the door of the restroom saying "C'mon in and file
*this*, sweetcakes!"  Thus, she was reluctant to go back there.
Jackson's harrassment impaired her job performance, and if she
can show that a superior knew or should have known about the
harrassment and didn't intervene, she can recover.

*  *  *

That's what sexual harrassment law *is*, under Title VII.  One
hopes this has dispelled a few myths and misunderstandings, but
a couple of miscellaneous points ought to be noted:

MYTH -- "I can't afford to even take the chance of getting sued,
	 so I'm going to fire anyone on first complaint.  Even
	 if I *win* the lawsuit, the legal bills will kill me."

FACT --	The prevailing party in a Title VII action can recover
	his/her/their/its attorney's fees from the losing party.
	A claim for attorney's fees must be pled, and there are
	some (HIGHLY technical) grounds under which it might not
	be granted.  But it *is* available.

MYTH --	"This law is the product of radical man-hating feminists."

FACT --	Gender discrimination was added to the Civil Rights Act
	of 1964 by *men*.  Indeed, it was added by *conservative*
	men who thought it would make the bill fail.  It didn't.
	(And just how many radical man-hating feminists *were*
	there in 1964?)

MYTH --	"Every female employee is a ticking time bomb; there's
	 nothing I can do to protect myself."

FACT -- A businessperson can protect him/herself quite easily.
	Develop a sexual harrassment policy which is consistent
	with the law.  (Many companies have instituted truly
	draconian policies, which is both overkill and unfair
	to their employees.)  Apply that policy consistently and
	fairly.  To quote an old law professor of mine, "You can
	substantially minimize the likelihood of being hanged for
	murder by the simple expedient of not killing people."

I hope this helps clarify the law, and will foster a more informed
and reasoned discussion of this issue.

Cris