Sexual Harassment

Sexual Harassment – Don’t Put Up, Speak Up

Media reports refer to these times as a “day of reckoning” as prominent business moguls and entertainment and media celebrities are fired amid allegations of sexual harassment or “inappropriate conduct” in the workplace. As the recent firing of long-time Today Show anchor Matt Lauer illustrates, such allegations are not limited to those perceived as creeps and weirdos. Mr. Lauer was known by millions for years as the nice guy, the gentleman, the perfectly dressed “neat freak” always gracious to and with his female co-hosts. Our country is having a long overdue, serious conversation about sexual harassment in the workplace. As women and employees of all genders, it is important and empowering to know your rights. No, you do not have to put up with it, and you should not put up with it.

If you think you have been sexually harassed, you probably have.

Many women in the workplace question whether conduct they see and experience regularly in the workplace is really sexual harassment. Many even doubt or have trouble believing what they see or hear or experience. “Is my boss really looking down my shirt, or am I just self-conscious?” “Did the senior partner really ask me about my personal life? Is he really coming on to me? Or is he drunk or not feeling well or just awkward?” “My co-worker has brushed up against my backside more than once. Did I really feel what I thought, or am I just imagining things?” “If I ignore it, will it go away?” “Is this just something I have to go through and put up with to advance in my career?” “Would I get fired if I complained? Would it be worth it? Should I complain? To whom?”

While it is true that there are those who make false claims, and while it is true that inadvertent or unintentional acts can be taken out of proportion, probabilities are if you think you were sexually harassed at work, you likely were. The question then becomes, at what point does sexual harassment become unlawful? It is important that persons believing they have been subject to sexual harassment seek competent legal advice. Most good employment lawyers offer free consultations.

Courts have narrowed sexual harassment laws in favor of employers.

California employees are protected from inappropriate sexual harassment in the workplace by the Fair Employment and Housing Act, known as the FEHA. The FEHA was enacted and modeled after Title VII of the federal Civil Rights Act of 1964. While Title VII and the FEHA are similar in many ways, in most instances California’s FEHA offers employees greater protections and considers what is set forth in Title VII to be the “floor” of protections in the workplace. Among other things, the FEHA provides that it is an unlawful employment practice to harass, discriminate or retaliate against an employee in compensation or in the terms and conditions of employment on the basis of sex. [See, Cal. Gov. Code § 12940(a), (h), (j).]

Statutes such as the FEHA and Title VII are enacted by the Legislature or Congress. The statutes themselves do not define what is or is not considered, for instance, “harassment based on sex.” Instead, the parameters of what is considered “unlawful” sexual harassment are ultimately defined by appellate courts. The most significant appellate court decision defining the general parameters of what is or is not “unlawful” sexual harassment was issued by the United States Supreme Court in a 1986 case called Meritor Savings Bank v. Vinson. Ironically, what has become the prevailing standard for determining what is or is not unlawful sexual harassment was further endorsed by Justice Sandra Day O’Connor, the country’s first female Supreme Court justice, in a 1993 Supreme Court case called Harris v. Forklift Systems. Like Justice Rehnquist did in 1986, Justice O’Connor wrote that sexual harassment must be either “severe” or “pervasive” to be actionable in a court of law. The “severe or pervasive” test is an objective, not a subjective test. In other words, the focus is on the workplace and not the victim! Neither the words “severe” nor “pervasive” appear anywhere in the statutory language of Title VII or the FEHA. Nevertheless, ever since the Vinson decision and the 1993 Harris v. Forklift Systems decision, state and federal courts of appeal have issued opinions of what is or is not considered “severe” or “pervasive” in the context of sexual harassment. These appellate court decisions become woven into the fabric of American sexual harassment jurisprudence as they are followed by other appellate courts and trial courts across the land.

One has to question the practice of appellate court opinions defining what is or is not actionable sexual harassment. Most appellate court justices are white males. Regardless of gender, appellate court justices come from predominantly privileged socioeconomic backgrounds out of step with the real world, real workplace view and experience of ordinary Americans. For example, how appropriate is it for such a jurist to determine whether one, two, three or six propositions by a boss clad only in a bathrobe, or whether one, two, three or six pinches of the buttocks or breast is “severe or pervasive”? It is shocking to read appellate opinions describing outrageous, downright lewd conduct that the courts went on to deem not actionable. Another judge-made “test” is the “same actor” defense, which is nonsense. Then you have the problem of the trial courts weeding out cases on summary judgment using just such tests. Whether something is “severe” or “pervasive” is a question of fact for the jury to decide, not the judge. Nevertheless, employment defense lawyers seize on such questions in fervent attempts to have sexually harassed employees’ cases dismissed before they even get to the jury. These are just a few of the many reasons why it is important for those who believe they have been unlawfully sexually harassed to consult with experienced plaintiff’s employment lawyers and to hire such lawyers if and when it is determined one has a legally viable claim.

Women do not have to and should not put up with or just tolerate sexual harassment.

Recently I attended a sexual harassment workshop organized by an association of women attorneys. This is an association of which I am member and strong supporter. The workshop was calendared before the Weinstein scandal hit the news. I was one of only two men in the audience. The rest of the attendees and the workshop facilitators and organizers were women. Predominantly, these were women attorneys, many partners big law firms or founders of their own firms. Some were even employment defense attorneys. The attendees were organized into tables. The facilitators read off a series of vignettes involving instances of sexual harassment in the workplace. After round-tabling the issues, representatives from each table got up to discuss how their table of women would handle each situation. As a man and an attorney for victims of sexual harassment, I was astounded at what I heard. Without exception, each table of women attorneys responded to each vignette with techniques they would use to deftly or politely change the subject or leave the room or look for other, non-confrontational ways to avoid making an issue of the offending conduct. These were, without exception, intelligent and powerful women. The workshop was designed to empower and educate. Indeed, the very organization was founded on the premise of empowering and educating and advancing the interests and opportunities of professional woman in the workplace. This workshop was not a demonstration of power or change. Instead, it was an example of how ingrained tolerance or looking the other way for the sake of one’s career is in even the most supposedly educated, assertive, empowered and confident of workplaces. Have we really come a long way, baby?

The most powerful tool women have to combat sexual harassment in the workplace is their voice. Women have to create a culture and environment of zero tolerance. Women do that by speaking up and supporting others when they speak up. If you experience something inappropriate, call it out and report it. If you see something inappropriate, call it out and report it. Go outside of HR. HR is there to protect management from pesky little employees such as you. HR is the greatest farce management has pulled on the workplace. You are the human resources they are managing, just as the facilities manager keeps the building from falling down. Are their dangers in speaking out? Of course, especially in the short term as workplaces still struggle to enter the 21st Century. It is your civil right to have a workplace free from sexual harassment. The struggle of women seeking to be free from sexual harassment in the workplace is a civil rights struggle. There have been and always will be victims and sacrifices on the road to equality and civil rights. Look at the women’s suffrage movement. Look to people like Rosa Parks and Betty Dukes and Lilly Ledbetter. Look at Roe v. Wade and the men and woman who fought for the equality of same sex marriages. None of these struggles were quick or easy. Every struggle was worth it. You are worth it.

So what can victims of sexual harassment in the workplace, primarily women, do? First, consult with an employment lawyer to learn your rights and to discuss the facts of your particular situation. Most trustworthy attorneys will give free consultations. If they do not, look elsewhere. It is best to proceed having been informed, and being informed is being empowered. Most experts believe workplace sexual harassment prevention starts at the top. That executives and management from the president or owner of the company on down through management must take personal ownership of the policy that sexual harassment will not be tolerated in the workplace. There is strength in numbers. When women and other co-workers band together to support victims of sexual harassment in their workplace, management listens. Companies are less likely to retaliate against or fire entire groups of complainers than they are individual complainants. The culture of silence or looking the other way out of fear for one’s job has got to go away. It is counterproductive and perpetuates the wrongdoing, no matter what it is.

Changing the subject and avoiding confrontation does not change the climate. It just perpetuates a bad situation and emboldens the perpetrators. Women have the power to effectively eliminate sexual harassment in the workplace. Use it.

To learn more, contact the San Diego employment law office of Christopher Hayes.