In Which I Clear Up Some Misconceptions on Sexual Harassment…
[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
Consider this a follow up to my last post about the accusations against Alcee Hastings. And of course I am not saying Hastings did in fact sexually harass this woman, just that there is a real question on the subject.
But I wanted to take a moment to clear up a few common misconceptions about sexual harassment. Mind you, I didn’t see any of the commenters getting this wrong, but I figured for readers generally this might be useful in helping you to understand what is going on, and frankly so you see what I know intuitively.
And let me start with a disclaimer. Nothing I say here should be taken as legal advice. That’s always true but I want to emphasize it here. You should bluntly consult with a lawyer before drawing conclusions about what your legal duties are. And that goes double if you think you can find a clever loophole around any of these rules.
So let’s get into it, a little mini-seminar with Professor Worthing…
First, let me ask you this. Suppose a white man worked with a black man and the white man constantly insulted the black man in racial terms. He called him a n—-r, he left nooses on his desk, and so on. What do you call that conduct?
Racial harassment.
Now imagine a Christian doing this to a Jew (substituting anti-Semitic slurs for racial slurs). Or vice-versa. Or imagine a non-handicapped person doing this to a handicapped person. That would be religious harassment and disability harassment, respectively.
And now imagine that man said to a woman in his office that she was a b-tch and a c—t, that women were stupid, and so on. What do you call that? Sexual harassment.
That illustrates three important points about sexual harassment law that many people miss.
First, the word “sexual” in the term “sexual harassment” is better understood as “gender-based.” In other words it is not about human sexuality, but the fact the person is singling out another person for differential treatment because of their gender.
Second, and closely related to that, there is no set of statutes written out that says you can and can’t do this or that. That certainly isn’t the case on the federal level, and I have never heard of a state law fitting that description. Instead, the law you are violating when you commit sexual harassment is generally some kind of anti-discrimination law, which leads me to my next point…
Third, sexual harassment is seen in the law as a breed of discrimination. I know that is a lot to throw at you at once, but each of those points are really tied together. But let’s go back to my example of racial discrimination. All of this started with a recognition that racist white employers who didn’t want to hire black people might seek to drive black people away from the job by either personally harassing those employees or by allowing other employees to engage in such harassment without restraint. So the law of racial harassment came about in significant part to avoid this loophole. But as things tend to happen in the law, things went beyond the initial impulse.
So the law doesn’t require you to be nice to people, but if you either treat people of a specific race worse than others, or you are ugly toward them in a way that is race-specific, then you are discriminating against that person because of race. And the same applies if you mistreat a person according to their religion, handicap or gender.
But of course that kind of sexual harassment I was just talking about, where you are simply cruel to a person because of their gender, doesn’t get very much press. What does get a lot of press is a very specific kind of harassment, what we call quid pro quo harassment. As you probably know by now, quid pro quo translates (I am told) to “something for something.” In general contract law it refers to a sharing of goods, money or services in exchange for other goods, money or services. In sexual harassment law the classic example of that is the creepy boss who says, “sleep with me or you’re fired.” In that case, the subordinate is being asked to exchange sex for continued employment. And needless to say that doesn’t have much to do with the kind of harassment you see when talking about racial, religious or disability-based harassment.
But in the end the core of the issue is whether or not it is discrimination. And well, it obviously is. I mean when it comes to whom we want to have sex with, there is usually a gender preference, right? As a single man, you might as well have hung a sign over my bed that said, “men need not apply.” And of course, there is nothing wrong with that. The problem becomes when your sexual advances becomes harassment of a co-worker.
Which raises the question—what if a the creepy boss in my example was bisexual in their harassment? That is what if a man demanded that both men and women sleep with him as a condition of employment? Well, that defense has been tried and I honestly didn’t see how it worked out for him. But I think any lawyer would say that you would be playing with fire with that one, especially if the court found you were not completely equal in your harassment; and a court is extremely likely to find that even the treatment was equal, that there was a predictable disparate impact.
And there is another reason why it’s a bad idea to engage in quid pro quo harassment: because very often quid pro quo sexual harassment is also solicitation of prostitution. For instance, consider this story from a disciplinary action taken in Florida against an attorney:
In Case No. SC03-149, the referee found that Tipler represented a client, an eighteen-year-old mother, in Bay County, Florida, on a charge of aggravated assault. Tipler charged his client a fee of $2,300 and entered into a fee agreement with her that allowed a “credit of $200 for each time she engaged in sex with Respondent” and a “$400 credit if she arranged for other females to have sex with him.” For his misdeeds, Tipler was charged with racketeering and four counts of prostitution. He ultimately pleaded guilty to one count of solicitation of prostitution.
That probably means that the agreement could be proven, but not the sex itself, so they only had solicitation. I am morbidly curious about whether the chowderhead actually put the agreement in writing or not. I saw a similar case here in Virginia, and if memory served the guy was outright disbarred (in the Florida case he was merely suspended for a long time). But if a male boss says to a female employee, “sleep with me or you’re fired,” then it is virtually the same thing. What he is really proposing is to change a person’s job description to include prostitution.
And, for everyone paying attention, that means things get worse if a person is told “sleep with me or you are fired” and that person answers, “yes.” Indeed, in theory that means both people could be charged with prostitution, although I never heard of that happening, and I severely doubt that the subordinate could cite his or her coercion as a legal defense. Hopefully if the police did intervene they would not arrest the subordinate.
And let me back up and highlight something about that relationship between quid pro quo sexual harassment and prostitution. This is also one of the better arguments against legalizing prostitution (besides my deep moral objections to the practice): because otherwise it would be impossible to outlaw quid pro quo harassment. As I just said, if a male boss says to a female employee, “sleep with me or you’re fired,” then what he is really proposing is to change a person’s job description to include prostitution.” And if prostitution is legal, then how can there be anything wrong with that?
The libertarians of the world who wish to legalize prostitution like to say, “as long as it is consensual and between adults, what’s the problem?” Well, the problem is that it won’t all be consensual. Too often it will the creepy boss telling a subordinate “sleep with me or you’re fired” and while it might not be coercion as the term is defined in the law, too many women will feel they have no choice. And that is unlibertarian.
And that is assuming that like libertarians you don’t find the moral argument adequate. That is one point on which I disagree with that movement, and why I only call myself semi-libertarian.
[Posted and authored by Aaron Worthing.]
It seems to me the issue is “changing a person’s job description”. There is something wrong with saying to an office employee, “Paint my house, or you’re fired” even though house-painting (for money) is legal.
LTEC (fd0803) — 6/22/2011 @ 12:28 pmI don’t know if this would be Point 2(a) or Point 4, but the de facto standard for determining hostile environment is what I refer to as ‘in the eyes of the recipient’, in which the feelings of the recipient of the allegedly unwanted attention take primacy over the intent of the alleged violator. In other words, if they get upset, you get screwed. (pun intended).
steve (369bc6) — 6/22/2011 @ 12:32 pmStep right up folks – we have a winner! Well stated!
Randall Gremillion (141bc4) — 6/22/2011 @ 1:14 pmYeah, that’s always been a pickle in my view. I was taught the ‘would you say it to your grandma’ standard, and think some kind of reasonable person standard beats the hell out of a standard of ‘did you perceive harassment?’ What possible gain is there in reducing the jury to a single person who often has a stake in the outcome?
Dustin (c16eca) — 6/22/2011 @ 1:19 pmthat allowed a “credit of $200 for each time she engaged in sex with Respondent” and a “$400 credit if she arranged for other females to have sex with him.
Since this was an attorney, wasn’t she earning $200 for about 4 minutes of work at the most? And he’s the one that gets in trouble?
Where is Bill O’Reilly to explain how speculators are driving up the price of intercourse?
MU789 (25de18) — 6/22/2011 @ 1:29 pmEverything is so trashy lately.
Dustin (c16eca) — 6/22/2011 @ 1:32 pmIs it pronounced “ha-RASS-ment” or “hairass-ment”?
Other than that, no questions, sir.
Unka Billy (8096f2) — 6/22/2011 @ 1:50 pmIn a 50+ year working life I’ve observed a number of sexual harassment cases. In the three I know the most about one was the real deal, guy coundn’t keep his hands to home. One was a racially motivated accusation but the accused had said something that could have been construed as offensive. One was totally bogus, made because the accusers position was being eliminated and she wanted an extra payday. She was colluding with the ER manager whom she later married.
f1guyus (2a84e9) — 6/22/2011 @ 1:56 pmOutcomes:
1. As soon as the first accusation was made half the women in the perps department came forward with similar stories. He was terminated and the barganing unit told that they could spend all the money they wanted to defending him but he wasn’t coming back.
2. As soon as the accusation was made every other woman who knew the guy came forward to support him. He got a letter in his file.
3. When it became apparent that HR was colluding with the accuser the HR manager was encouraged to adjust his career path. After he left a whole bunch of ugly stuff surfaced. His assistant had made very good use of the copy machine.
Point it when people are fundamentally dishonest you have to be very careful reacting to the first accusation.
Can I enroll in a Harassment Seminar – I need to brush up on my techniques?
AD-RtR/OS! (8df2e8) — 6/22/2011 @ 2:26 pmBecause of the coercive nature of the “sleep with me or you’re fired” boss this strikes me as approaching sexual assault.
The coercive factor is mental rather than physical but I think the case can be made. The victim succumbed to the assault to avoid injury.
Just my non-attorney two cents.
MaaddMaaxx (25e27f) — 6/22/2011 @ 2:37 pmAnd now imagine that man said to a woman in his office that she was a b-tch and a c—t, that women were stupid, and so on. What do you call that?
Human Resources at The Daily Show hired a conservative by mistake?
Because harrassment laws don’t apply when it’s liberals attacking conservatives.
malclave (4f3ec1) — 6/22/2011 @ 3:11 pmNeither Gloria Steinem nor the New York Times wants you to remember that she wrote an editorial titled “Feminists And The Clinton Question” published Sunday, March 22, 1998. In it, Steinem wrote that what Clinton did to Kathleen Willey (groping her in the Oval Office after she begged for a job after husband’s suicide) and Paula Jones (invited her to hotel room, sat beside her, exposed his Weiner, asked her to “kiss it”) wasn’t sexual harassment because he took no for an answer, and thus avoided creating a “hostile work environment.” This became known on talk radio and conservative media as the “one free grope” manifesto.
Ultimately, Jones’ civil suit was dismissed by Judge Susan Webber Wright (a former law student of Clinton’s at Arkansas-Little Rock) mostly due to lack of evidence of reprisals against Jones. Jones’ strongest case she had been singled out after rejecting Clinton was that she alone didn’t receive flowers on Secretaries’ Day.
You won’t find the Steinem piece in the NYT website’s archives, although you can find a letter to the editor objecting to it.
L.N. Smithee (ac1f0c) — 6/22/2011 @ 3:43 pmThe Secretary of the Legal Department of a international firm had a small sign outside her cubicle that read
“sexual harassment in this area will NOT be reported… but it will be graded”
Interesting that in this highly disciplined firm – they left it alone
EricPWJohnson (2a58f7) — 6/22/2011 @ 4:03 pmI think it’s a stretch to call a creepy boss saying “sleep with me or you’re fired” changing the job description to include prostitution. But I like it! I just can see some gal plonking herself down on the boss’s lap with her JD in hand saying, “OK, so right here under ‘other duties as assigned’, we’ll just put ‘occasional BJ’, m’K? And I want a raise. And overtime pay.”
starboardhelm (e93080) — 6/22/2011 @ 4:57 pm#2 comment (sorry Steve) is wrong, at least in New York (I think the “Father Belle” case would be the cite for this, but I’m not sure).The harassment must be both subjectively offensive(to the victim) and objectively offensive(to the judge/jury) to be considered sexual harassment. That being said, the caselaw about this subject is a mess. Courts will often say that sexual harassment law is not meant to be a “code of civility” for the workplace. Yes it is, and the male boss who forgets that is cruising for a bruise.
Mike (ad40fa) — 6/22/2011 @ 7:11 pmGreetings:
So, it’s still okay for homosexuals to use the same sex’s bathroom?.
11B40 (affe32) — 6/22/2011 @ 9:30 pmSomeone should check out the quid pro quo harassment law in Nevada where prostitution is legal.
OK Here’s Employment Law in Nevada.,,,,,,,,,
I’m betting if it’s not written down that part of your job includes servicing the boss, then what you have is sexual quid pro quo harassment.
I bet Hugh Hefner has a clause in the contract.
papertiger (e55ba0) — 6/22/2011 @ 10:21 pmWithin six years of the ‘civil rights’ bill of 1964 — in which the federal government told private businesses who they must hire, serve, rent to etc — the doctrine of ‘disparate impact’ was already cooked up. That is, if an employer — other than the tiniest of enterprises , made hiring decisions that didn’t ‘reflect the community’ — in practice quotas, then it could be sued.
The thing is, these laws are only applied against whites. Does anybody think that Barry Gordy’s MoTown hired didn’t discriminate in favor of blacks, or that Mexican construction foremen don’t hire Mexicans first and foremost. And you know what, I have no problem with Barry Gordy hiring ‘his people’, and I expect the Mexicans to hire Mexicans. It’s human nature — expect for whites, who’ve had it beaten out of them.
A real ‘small government’ conservative would recognize that other than the income tax, ‘civil rights’ law is the most intrusive, and the most unequally applied, aspect of federal law.
stari_momak (d5f987) — 6/23/2011 @ 12:03 amWhen i worked at Countrywide as a programmer none of this seemed to apply when the harassment is directed by a homosexual towards a Christian. I personally had to suffer the many sexual advances, remarks, hatred for no other reason than I was a Christian and constant comments on how they thought it would be funny if I was on drugs. I worked hard as I always have and still received promotions, raises, bonuses and stock options but the work environment could be very uncomfortable. BTW, I did not talk about my Christianity at work unless I was directly asked and because of work policy only answered the question asked. I did not attempt to proselytize.
Tanny O'Haley (12193c) — 6/23/2011 @ 12:51 amThe chief of police was building a cabin at a nearby recreational lake and let it be known that he could use some help. Two officers had better things to do on their time off. When there was a promotion exam ,these two scored first and second yet neither was promoted and both just quit the force. Grey areas.
dunce (b89258) — 6/23/2011 @ 11:23 am