Introduction: A Fictional Set Up of the Sexual Harassment Scenario
“Sniffing someone. How is that sexual harassment?”
“Once maybe, Jake, but you’ve turned it into a game, and she’s not playing,” Pete said.
“I said her perfume aroused me. She thought it was funny. Everyone did,” Jake said.
“I hear she’s counted the number of times you sniffed her. She’s got a log . . . and I hear she’s gone to H.R.”
“Didn’t you get a clue?” Pete said.
“No, hell, it was all a joke. A way to relieve pressure. I didn’t mean anything by it. I treated her like one of the guys. We joke, you know.”
“Yeah, like you’ve started sniffing Mike now.”
“Equal opportunity sniffer. Besides, he’s such a pussy.”
“Well, Mike doesn’t see it that way. He told me he’s reporting you to H.R.”
“He says its because he stood up for Michelle. You’ve been calling him “bitch” and “pussy” every chance you get.”
“Well, yeah. I mean it’s ridiculous.”
Basic Analysis of the Facts
This fictional account leaves out many facts that formal investigation and discovery would uncover. What we know is that two people have found Jake’s behavior so offensive that they have reported him to Human Resources. We know co-workers have witnessed the “sniffing” but we do not know just how Jake has acted. We know that his attitude is dismissive of any improper actions, calling the charges “ridiculous.” We have no information at this point that Human Resources or other management has taken any action in response to the complaints. We also have no information that Jake has been the subject of any similar past investigation.
Statement of Basic Legal Principles
- Jake’s attitude and perceptions are legally irrelevant. The issue is Michelle’s response. First, she finds the behavior offensive. Second, the question is: would a reasonable woman in Michelle’s situation also find Jake’s behavior offensive? The legal standard focuses on both a subjective and objective assessment. The correct and better legal standard is not what a reasonable person would think of the behavior, but a “reasonable woman.”
- Jake’s behavior and Michelle’s response will be evaluated by how frequently or how severely the sniffing occurred. Note two aspects of this principle: frequency or severity. One sniff may be offensive but not harassing. Being sniffed several times a day for a month is both offensive and harassing. As noted, we need more information. What does Jake say, what facial expressions does he make, and where does he sniff?
- Sexual harassment can occur without sexual interest or desire. Jake sniffs both Mike and Michelle. How can the sniffing be gender based? It can, and based on the facts, likely is. Both actions humiliate the target. In the case of Michelle, the sniffing is a response to Jake’s declared sexual interest. In the case of Mike, the sniffing is gender based even without the element of sexual interest in Mike. A man who humiliates and disparages another man with sexually demeaning verbal or physical attacks is engaged in sexual harassment because the behavior uses gender as the tool of humiliation.
- Reporting the harassment is important. Both Mike and Michelle have gone to Human Resources. That reporting triggered the employer’s legal duty to take immediate corrective action to first investigate, and then to design a level of disciplinary response that punishes the offender, and sends a message to the rest of the work force that sexual harassment will not be tolerated.
- The federal and state courts have fashioned laws that encourage employers to create internal policies and enforcement mechanisms to contain sexual harassment. The judicial tools of preference are known either as a “bar” to liability [federal case law] or a partial “avoidance” of damages. [California case case law.] That is, Courts have created incentives for employers to avoid liability or to limit damages, knowing that the Courts themselves are in a poor position to monitor work environments.
Basic Sexual Harassment Protections That employers Should Implement:
- Sexual Harassment Policies: written, clear, updated, and disseminated to all employees.
- Sexual Harassment Training: Supervisors and managers should be informed of what sexual harassment is, and how to respond to it when it becomes known. California requires employers to provide employees basic agency approved information about sexual harassment to all employees when they begin their employment. California also requires employers with more than 50 employees to provide detailed training to managers and supervisors every two years.
- Sexual Harassment Reporting Mechanisms: Employees should be given easy, quick, and responsive avenues of reporting.
- Manager and Human Resources responsiveness: Time is critical. An employer has a legal duty of “immediate” response. The first order of business is to protect the victim. That protection would include separating the perpetrator from the victim in whatever way is appropriate to the situation. Secondly, protections are to be put in place against retaliation against the victim by the perpetrator. At the least, this requires a clear warning to the perpetrator that he or she will be disciplined harshly for retaliation.
- A Thorough Sexual Harassment Investigation. Fairness, completeness, timeliness, and effectiveness are the key components. The investigation must be quick, it must be impartial, it must cover all the witnesses and documents, and it must produce findings and a course of action based on the findings. Many companies sadly use the investigation for a dual purpose: to stop harassment, but also as a legal document to prove there was no harassment, only a perception of harassment. Smart companies will be swift and transparent. Finally, the investigation should be professionally conducted by a trained investigator. It can be internal, but the better choice is an outside independent investigator who is unaffiliated with the company’s legal defense firm.
- Readiness to take corrective action: The whole mechanism of policy, reporting, and response is designed to produced an effective corrective action. The action is to be proportionate to the findings. A fair investigation will weigh the evidence, and realize that the accused is ethically, if not legally, entitled to fairness as well. An innocent man falsely accused of sexual harassment by a vindictive woman can ruin a career and cause deep emotional, economic and reputation harm. A hierarchy of discipline can be imposed: a verbal and/or written warning, compelled attendance at sensitivity training, suspension without pay, demotion, transfer, or termination.
- Protection from Retaliation: both federal and state laws place retaliation for complaints of sexual harassment on equal footing with sexual harassment itself when imposing liability and penalties.
- Keep the Accuser Informed of the status of the investigation, and the results. Let the accuser know, subject only to basic privacy and confidentiality rights, what discipline and warnings have been given.
- Eliminate the stigma or fear of reporting sexual harassment. Many employers fail to grasp how distressing it is to report the harassment. Sexual harassment itself is injurious. But the reporting of the harassment worsens matters because the victim is unsure if she has just ended her career, or if she will untrusted as a snitch and troublemaker. The solution is to create a clear company message and practice that sexual harassment is wrong, that it is destructive of human potential, that it adversely affects productivity, and that it will not be tolerated. Further, repeated messages must be delivered to all workers that the company has reporting mechanisms in place, and that there will be no retaliation for using them. The company must make clear in its policies and training that retaliation is as punishable as the harassment itself.
- A sexual harassment case does not depend on a “nervous breakdown.” A woman (or man) who experiences sexual (or gender based) harassment may continue working without the need for professional medical or psychotherapeutic intervention. A victim who struggles with completing her work because the conditions of her employment are made more difficult emotionally by the sexual harassment may proceed with her case.
In summary, the key elements of proof that a sexual harassment Plaintiff must prove to a jury California Civil Jury Instructions [CACI 2521] are:
- That the Plaintiff was subjected to unwelcome harassing conduct because of gender;
- That the Defendant’s conduct was so “severe, widespread, or persistent” that a “reasonable person” in Plaintiff’s circumstances would have considered the work environment to be “hostile or abusive.”
- That the Plaintiff herself personally considered the environment to be hostile or abusive.
- That either a supervisor or manager directly engaged in the abusive and hostile behaviors, or that a supervisor or manager knew [or should have known] of a co-employee’s misconduct, but took no corrective action;
- That the Plaintiff was harmed by the offensive conduct;
- That the conduct was a “substantial factor” in causing the harm.
Too many federal court judges are insensitive to the cultural shift that protects women from career interference caused by sexual harassment. Sadly, these more conservative jurists view the world through a time-bound prism when “these things just happen.” Crude and unwelcome behaviors are part of the workplace in such a view, and only the most egregious or outrageous conduct merits judicial intervention. The failure in these attitudes is that they fail to follow the law: the test is whether a modern “reasonable woman” would find the conduct sexually harassing. As more women are appointed to the federal bench, we would expect to see a clearer perception of the “reasonable woman” standard.