Matt Lauer: On November 29, 2017, NBC News fired Matt Lauer after a colleague alleged he engaged in inappropriate sexual behavior toward her which lasted for several months. This allegation was followed by accusations from five other women that Lauer sexually harassed them in the workplace.
Representative John Conyers, Jr: On December 4, 2017, 88-year old Representative John Conyers, Jr., of Michigan, the longest-serving member of the House of Representatives, resigned amid accusations of sexual harassment by several female employees. Several of his former aides alleged that he demanded sexual favors from them or touched them inappropriately.
Harvey Weinstein: Almost daily, new allegations of sexual misconduct emerge against the mogul movie producer Harvey Weinstein, who has reportedly fled to Europe for sexual addiction rehabilitation.
Sexual harassment in the workplace is not confined to Hollywood, major media outlets, or the legislature. Statistics show that “[a]pproximately 15,000 sexual harassment cases…are brought to the Equal Employment Opportunity Commission (EEOC) each year.” A telephone poll of 782 workers revealed that 31% of the women workers claimed to have been sexually harassed at work. It is quite likely, though, that even these appalling statistics do not accurately represent the number of people who are sexually harassed at work. According to the EEOC’s June 2016 Select Task Force on the Study of Harassment in the Workplace: “Common workplace-based responses by those who experience sex-based harassment are to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior. The least common response to harassment is to take some formal action–either to report the harassment internally or file a formal legal complaint. Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct. Employees who experience harassment fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.”
Failure to report a harassment claim due to fear of disbelief of the claim and inaction on the claim likely stems from a cultural environment present in the workplace which ignores and even accepts (whether implicitly or explicitly) sexual harassment. Unfortunately, the legal genesis for the burgeoning cultural acceptance of sexual harassment in the workplace may be attributed to the Supreme Court. In 1998, the Supreme Court held in Oncale v. Sundowner Offshore Services, Inc., that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. While that holding is laudable, the Supreme Court attempted to prevent its holding from expanding into a “general civility code,” which Title VII does not permit:
We have emphasized…that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’…In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing…and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.
It is precisely this “social context” that has seemingly fueled the acceptance of sexual harassment in the workplace. Kyle Godfrey-Ryan, one of Charlie Rose’s accusers, said that “Rose walked around one of his New York City homes nude in front of her at least a dozen times.” Godfrey-Ryan also alleged that Rose “called her several times to discuss his fantasies of her swimming naked in his Bellport pool as he watched her from his bedroom.” Godfrey-Ryan claimed to have informed Rose’s producer about his phone calls. “I explained how he inappropriately spoke to me during those times.” Rose’s producer “would just shrug and just say, ‘That’s just Charlie being Charlie.’” Another of Rose’s accusers claimed that while she was working for Rose in his Manhattan apartment, he called out her name while he was showering. When she did not respond, Rose emerged from the shower wearing only a towel and said to her, “‘Didn’t you hear me calling you?’” When she reported his behavior to someone in the office, a male colleague approached her, laughing, and said, “‘Oh, you got the shower trick.’”
Describing the social context that is pervasive in Hollywood, George Clooney stated, “[I]n some ways, a lecherous guy with money picking up younger girls is unfortunately not a news story in our society.” Matt Damon commented, “We vouch for each other all the time…We know this stuff goes on in the world. I did five or six movies with Harvey [Weinstein]. I never saw this.” However, “[t]he ‘not seeing’ is a common theme in actors’ responses to this scandal.” Three women who accused Matt Lauer of sexually harassing them “complained to NBC about Lauer’s behavior in the past–and the network didn’t do anything.” Nor did government leaders respond immediately to the claims that Representative John Conyers, Jr., sexually harassed his former aides: “Democratic leaders at first circled protectively around Conyers, but as the number of accounts grew, members of his party began calling for his departure.”
The social context present in many workplaces not only creates an atmosphere that is conducive to sexual harassment, but it also keeps any attempts at prevention training from succeeding. For example, “employees who already believed that their employers tolerated sexual harassment took that cynicism into training sessions and were less motivated to learn from it.” “Institutional cultural change is needed. If workplace environments are influencing employees’ attitudes toward training and/or its actual effectiveness, then employers need to pay more attention to the cultural environment of their organization.”
When determining whether harassment claims are actionable, courts are directed to consider the “totality of the circumstances,” including the nature and frequency of the offensive encounters. The conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive.” The key question is, though, who is a “reasonable person”? The Sixth Circuit held in Highlander v K.F.C. Management Co. that a court must “adopt the perspective of a reasonable person’s reaction to a similar environment under similar or like circumstances to determine if the defendant’s conduct would have interfered with the work performance and would have seriously affected the psychological well-being of that characterized individual.” Is that “reasonable person’s” reaction under similar circumstances a work colleague who is so familiar with Rose’s sexual misbehavior that he believes a woman being asked by Charlie Rose to come into the shower with him is nothing unusual? Is that “reasonable person” a work colleague who has become so numbed by the pervasiveness of wealthy men picking up younger women in Hollywood that he simply does not “see” Harvey Weinstein sexually harassing actresses who are working on his films? Is that “reasonable person” the nation’s government leaders who do not force Representative John Conyers, Jr.’s resignation from office until a particular number of women have accused him of sexual harassment?
In 1991, the Ninth Circuit held in Ellison v. Brady that “a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” The Ninth Circuit explained the rationale behind its “reasonable woman” standard: “We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.” The Ninth Circuit made clear in Ellison, though, that “where male employees allege that co-workers engage in conduct which creates a hostile environment, the appropriate victim’s perspective would be that of a reasonable man.” The Ninth Circuit continues to this date to adopt the reasonable woman or man standard, depending on the gender of the plaintiff.
In Ellison, the Ninth Circuit stated that, “analyzing harassment from the perspective of the victim requires “among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women.” Further, “[a]dopting the victim’s perspective ensures that courts will not ‘sustain ingrained notions of reasonable behavior fashioned by the offenders.’ Congress did not enact Title VII to codify prevailing sexist prejudices.”
The Ninth Circuit appropriately assessed the severity of the harasser’s conduct from the perspective of the reasonable victim, rather than from the perspective of the organizational and social context from which it arose–which often ignores and even accepts that behavior.
Adopting the Ninth Circuit’s standard across the country just might curb the precipitous tide of sexual harassment that is occurring in Hollywood, major media outlets, the national legislature, and in the most common of workplaces.
Written by Valerie A. LeFevere
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