Monday, December 4, 2017
Sandra Sperino & Suja Thomas, Boss Grab Your Breasts? That's Not (Legally) Harassment
There remains a sense among Americans that the country’s legal system is well equipped to handle the harassment cases that will likely be brought as more women come forward with accusations, including against celebrities like Matt Lauer and Garrison Keillor. The country has laws protecting people against harassment in the workplace and courts in which those laws are supposed to be enforced. Several high-profile lawsuits — including Gretchen Carlson’s suit against the former Fox News chairman Roger Ailes, which was settled for $20 million — have reinforced this impression.But this notion is misleading. 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. How did we get here?
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.
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 early and mid-1990s, the federal courts wrestled with the meaning of the “severe or pervasive” standard, and judges during that period created a very high bar for plaintiffs to meet. Unlike typical workers, these judges had lifelong job security and powerful positions. They also did not have the benefit of deliberating with a large group of people with different experiences as a jury does. These early cases have cast a long shadow, and today, some judges appear to simply be following the standards set by earlier courts. These standards have not aged well.