Could the headline possibly be true?
Boss Grab Your Breasts? That’s Not (Legally) Harassment
The op-ed was written by two lawprofs, Sandra Sperino and Suja Thomas, so one would certainly expect it to be accurate, but since the authors don’t write the headlines, it’s hard to say whether they endorse it. Then again, the headline writer didn’t pull it out of nowhere.
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.
No cite for the proposition, of course, but it could be true, right? Except it’s not.* So what’s the deal?
In the 1986 case Meritor Savings Bank v. Vinson, the Supreme Court held that Title VII of the Civil Rights Act prohibits harassment in the workplace based on sex, race, color, religion or national origin. Today, Meritor is viewed as a landmark case that officially recognized sexual harassment as an impermissible form of discrimination.
But in issuing its judgment, the Supreme Court used the words “severe or pervasive” to describe the level of seriousness that conduct must reach before meeting the legal definition of harassment. Those words are not found in Title VII. Instead they are a judicial interpretation of the statute — and have had lasting consequences.
Note the word “but” used to begin the second-quoted paragraph, as if the the qualification of “severe or pervasive” is a bad thing. Note also that the authors write “those words are not found in Title VII.” Nor are a lot of words, like discrimination against people for sexual orientation or identity. But without those words, would the authors contend that any conduct, no matter how petty or trivial, no matter how benign or unintentional, should violate Title VII? This is what courts do, distinguish between claims that are actionable or not. De minimis non curat lex.
Some conduct is clearly so serious that it always counts as harassment. For example, a supervisor raping an employee has consistently been viewed as “severe” enough to meet the bar. Supervisors who have subjected workers to sexual epithets and taunting every day for a long enough period meet the standard for “pervasive.” Other conduct, by contrast, is never going to meet the threshold — say, if a supervisor asks an employee out on a date once and does not treat her differently after she declines.
In the middle, however, some judges see an area of uncertainty. And in such cases, courts often err on the side of dismissal.
That courts err is why we have appellate courts, but whether they “often err on the side of dismissal” is a very different question. What is sadly missing from this challenge to the standard of “severe or pervasive” is what Title VII does. It prohibits employment discrimination. When a woman believes herself to be harassed on the basis of sex, she’s not suing her harasser. She’s suing her employer for failing to protect her from a hostile work environment.
The question, therefore, is what constitutes a hostile work environment? what does the employer know such that it can address the issues? What level of offense gives rise to damages? Even the authors concede that not every unwanted act is compensable for a woman, no matter how horrifying it may be. There is a vast middle ground here, and human beings, being what they are, manage to find every permutation of it.
There are easy ways to start fixing this problem when it comes to sexual harassment. Congress can amend Title VII to ensure the courts interpret its language broadly. It can also legislatively dismantle the court-created doctrines that are gutting harassment law. And judges must reject interpretations of “severe or pervasive” derived from cases that were wrongly decided.
The easy ways to “fix this problem” would be to change the law so that conduct need not be objectively “severe or pervasive,” but whatever a woman says it is. But there’s a downside to this easy fix.
The lesson isn’t “don’t rape, don’t harass,” but that this is a minefield decent men don’t care to traverse. Who needs the risk and drama?
If an employer’s liability under Title VII is whatever trivial conduct evokes feelings of discomfort by a woman in the workplace, then either men or women must go, as people (being people) say and do things that are objectively harmless but subjectively offensive to someone, whether because of their personal sensitivity or their desire to seek out things to be offended about, and the employer takes the hit.
Women complain of a plethora of problems in the workforce, from failure to hire to failure to promote, from under-representation in well-paid positions to the glass ceiling. Is this the minefield they want to die on?
Businesses exist to make money, not to provide women with jobs and paychecks together with a workplace that pleases their every whim. If women are subject to employment discrimination now, what are the chances that demanding untenable liability from employers will make them more desirable employees in the future?
*In real law, the issues are addressed less simplistically. In an example randomly plucked from a google search, from the denial of summary judgment in Delsasso v. 1249 Wine Bar, by Judge Robert Chatigny of the District of Connecticut:
See Hand v. New York City Hous. Pres. & Dev. Div. of Code Enf’t, 605 F. App’x 42, 43 (2d Cir.
2015) (summary judgment not appropriate when plaintiff’s supervisor “felt her breast and repeatedly invaded her personal space”); Barrows v. Seneca Foods Corp., 512 F. App’x 115, 119 (2d Cir. 2013) (summary judgment not appropriate when supervisor “touched [plaintiff]’s intimate body parts many times”).
In Mendez-Nouel, the record included two instances of touching (in addition to “workplace banter”), the more significant of which involved plaintiff’s supervisor “touch[ing] his lower back for four to five seconds.” 542 F. App’x 12, 13 (2d Cir. 2013). In Quinn v. Green Tree Credit Corp., the only allegation of touching was that plaintiff’s supervisor once touched her breast
with some papers. 159 F.3d 759, 768 (2d Cir. 1998); see also Redd, 678 F.3d at 180 (describing and distinguishing Quinn). In Mormol v. Costco Wholesale Corp., the alleged episodes of
harassment did not include touching and “were few and occurred over a short span of time.” 364 F.3d 54, 59 (2d Cir. 2004).