Monday, December 4, 2017

Our harassment laws are not the reason for our sexual harassment problem

Last week, the New York Times ran an Op-Ed titled, Boss Grab Your Breasts? That’s Not (Legally) Harassment.

It argues that our lax sexual harassment laws, and the courts that apply them, are responsible for our current workplace harassment problems.
In a case that went to federal court in the early 1990s, a woman presented evidence that her supervisor tried to kiss her on multiple occasions, placed “I love you” signs on her desk, called her a dumb blonde, put his hands on her shoulders and asked her out on dates. The trial court judge dismissed her suit, declaring that this conduct did not meet the threshold for sexual harassment, and the appeals court affirmed the dismissal. 
Since then, courts have cited this case and others like it hundreds of times in rejecting sexual harassment claims. Such conduct, these courts have declared, is not serious enough to be harassment. 
In fact, courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts. The judges declare that the conduct does not constitute harassment in a legal sense, and refuse to let the cases go to trial. How did we get here?
Courts are not the reason why we have a harassment problem permeating our workplaces; the reason is employers who have, for far too long, tuned a blind eye to these issues.

Our harassment laws are just fine. Are there anomalous results? Sure. A quick search on Lexis for “sexual harassment” reveals nearly 50,000 decisions. It’s impossible to imagine that they all got it right. I’m certain more than few would make you scratch your head.

Nevertheless, the solution is not to rewrite our harassment laws. Title VII is not and never was intended to be a code of workplace civility. It’s prohibitions against sex discrimination, as interpreted, since 1986, to prohibit sexual harassment, prohibit “severe or pervasive” misconduct that is both objectively and subjectively unwelcome.

Severe misconduct exist when one event that is so outside the bounds of decency that it alters one’s terms and conditions of employment. Pervasive misconduct results from the culmination of less egregious repetitive incidents.

These laws work just fine. Most often than not, courts either decide these cases correctly, or they settle.

Moreover, the alternative is to create a standard that is so lax, and so loosey-goosey, that just about any misconduct will rise the level of unlawfulness. This standard, while potentially appealing to some given the the current climate, would gut at-will employment.

So, if amending our workplace harassment laws isn’t the solution, what is? Or, more to the point, what will help create workplaces in which harassment is not only no longer overlooked and condoned, but expressly prohibited with no tolerance?

To this end, I suggest taking at look at the EEOC’s three-point harassment prevention plan:
  • Taking action to prevent harassment starting at the C-suite.
  • Deploying a different type of training.
  • Embracing the idea of “it’s on us”.
This is not a legal issue; it’s a cultural issue. The laws we have are more than sufficient to address this problem, as long as businesses treat it with the seriousness it deserves.