Sexual Harassment

Complaints with lascivious details were almost unheard of 20 years ago, when only a handful of workers filed federal sexual harassment charges every year. Now, the law books are chock full of hair-raising cases of unwelcome sexual advances at work — sordid tales of crude references to body parts, unwelcome fondling of breasts, buttocks, and genitals, and men exposing themselves. Title VII law has become the red light district of the federal courts.

And studies suggest that only one out of a hundred people who are sexually harassed actually file complaints — most take it on the chin, try to shame the harasser one-on-one, or use internal channels.

Merely Offensive or Threatening?

One wonders why sexual harassment is growing like topsy, even accounting for the unending potential for arrested adolescence, unharnessed sexuality, and abuse of power at work. Perhaps one reason is the unpredictability and ever-changing standards that define the charge.

Most federal sexual harassment claims don’t involve the relatively clear Title VII violation of a supervisor demanding unwelcome sex in exchange for a job opportunity. The lion’s share ask whether the workplace is toxic with sexuality or, stated in legal language, whether the employer has permitted an unwelcome “hostile environment” with severe or pervasive sexuality that is not “merely offensive,” but so “threatening or humiliating” that it alters the terms and conditions of one’s employment.

It would be simpler if the standards were more like traffic violations, where, say, grabbing a woman’s breast, like speeding over 90, earns an automatic hefty fine, or displaying sexually offensive photos at work, like leaving a parking meter unplugged, commands another set penalty. But they’re not.

Women have lost sexual harassment cases in which men have asked for oral sex, grabbed their breasts, kissed them without their consent, or subjected them to a barrage of crude and demeaning sexual entreaties. If you’ve read all these cases, you know that if employers and employees are looking for predictable standards to guide their behavior, they ain’t going to find them.

The difference between “merely offensive” and “threatening and humiliating” remains murky. How many breast-grabs is “severe” — one appeals court recently held that two grabs was not — and how many episodes of unwelcome grabbing and sexual insult are “pervasive”? A federal court of appeals in New York recently held that two years worth of pornographic pictures on an employee bulletin board, which numerous female employees complained about without respite, was not “pervasive” or “severe” as a matter of law.

Not Worth the Gamble

With general standards viewed through the prism of judges and juries of vastly different sexual sensibilities, Title VII has become more like a giant lottery governed by general rules and uncertain outcomes, with the highest award for sexual harassment (before reduced on appeal) being $50 million, and the lowest being $1 — seemingly at times for similar conduct.

Mediators and sexual harassment experts say that what matters in avoiding a lengthy lawsuit is a sincere apology, meaningful discipline of the offender, an end to the problem, and showing the victim that the perpetrator didn’t get away with it. It’s the classy thing to do, may assuage the victim and deter a path of costly litigation, and impress the jury if it ever becomes a question of punitive damages.

It’s hard enough to work most jobs without throwing in breast-grabbing and sexual insults. It’s hard enough to run a business without paying for years of legal representation and gambling the company’s survival on employees’ abusive sexual behavior.

But employers don’t need to wait for the outcome of lengthy litigation to find out whether certain conduct is the kind of sexual harassment that violates Title VII, or to witness the secret sexual exploits at their company grimly reported in federal court decisions.

“Best practices” companies treat anything resembling sexual harassment as serious misconduct. They recognize it as the theft of productivity and morale that it is, like running over a co-worker with a forklift; like stealing from the company cash register; or like stealing a co-worker’s career.

“Zero tolerance” for harassment is simple, consistent, sharp, and predictable. It may make for to less interesting reading. But arguably, there are better places to learn about sex than in law books.