Monday, May 25, 2015

To Sue Or Not To Sue... for Sexual Harassment

Most of us have heard similar stories.

A male manager says something grossly offensive to a female employee at a meeting. The humiliated woman files suit. She wins her lawsuit and receives a generous payout.

But then, she can no longer get a job in her business. No one wants to hire her; she has become radioactive. She has joined the ranks of the unemployable.

The moral of the story: litigation should not be used as an instrument for social engineering.

Today’s working women have had their consciousness raised. They are intensely aware of a large variety of actions that constitute harassment. They are not only more conscious; they are more sensitive to even minor abuse. Having been empowered by the legal profession they believe that their grievances should be heard in court.

At times they win their lawsuits. At times, they lose. On other occasions they submit their complaints to arbitration.

In all cases they insist that male sexual harassment creates a hostile workplace environment. Unfortunately, the men who are targeted by their grievances believe that their behavior—which may or may not be innocent--has been criminalized, thus creating a hostile workplace environment.

Why have more women around if their presence makes men more wary of lawsuits?

For lawyers, lawsuits are business. Lawyers make a living from them. The more lawsuits, the higher their fees. It is in their interest to define harassment as broadly as possible, the better to gin up their own fees.

At times, harassment verges on criminal assault. At times, what is perceived as harassment was intended as a jest.

Telling a woman that she must offer sexual favors or miss out on a promotion feels like extortion. Harassing a woman with repeated phone calls and text messages requesting sexual favors or even a date verges on stalking.

And yet, commenting on a woman’s appearance does not feel to most men like a criminal act or a civil tort. If a woman puts a great deal of time and effort into looking her best, a man knows that he should offer her a compliment or two. If a woman wears a low-cut top or unbuttons one extra button on her blouse, most men are going to notice, even to ogle. Is it harassment or instinct?

Ideally, interactions between men and women—inside and outside the workplace-- should be regulated by codes of gentlemanly and ladylike behavior. Today, they are being policed by lawyers.

In the end, no one seems to win.

Ellen Chang writes for Main Street:

Even though the law protects victims of sexual harassment, the threat of facing a reprisal remains at the forefront for many employees, said Sam Cleaver, an attorney who represents victims of sexual harassment in Los Angeles. Many women are concerned that filing a lawsuit hinders their ability to get another job, especially if they work in an insular industry.

“If you complain, you can be retaliated against – do you want to have a great lawsuit or a great job?” he said.

Moreover, the processes of discovery and cross examination at trial can be demeaning and embarrassing:

Women who are executives or in an upper management position are less likely to bring a sexual harassment lawsuit, because these cases are personal and having your life critiqued by juries and lawyers is tough, she said.

There’s more to it than passing new laws and regulations. For laws to be effective, they must make intuitive sense. Isn’t that the guiding principle of the common law?

People have to understand intuitively what constitutes sexual harassment and what does not. If new definitions expand the scope to the point where it comprises actions that do not feel like harassment, the tactic will not diminish the incidence of sexual harassment. Men will be reduced to testing boundaries to see what they can get away with.

The Post explains:

Sexual harassment cases in the workplace range from minor jokes and a slightly hostile workplace to overt touching, “which is nothing less than a sexual battery,” said Peter Ticktin, a senior partner at Ticktin Law Group in Deerfield Beach, Fla.

Minor jokes?  The broader the definition the less sense it makes. The less sense it makes the more men will feel that they are being harassed by lawyers and HR.

But, some women like bawdy humor, because it makes them feel like one of the guys. And yet, how’s a man to know whether one woman or another likes or does not like such humor. What happens if there are several women in a group and some like certain jokes and others do not?

Overly familiar touching can certainly be an assault, but it must depend on who is touching whom where, and on whether the touch is intentional or not.

If you turn too many different male behaviors into criminal actions, you will cause people to disrespect the law.

The situation is confusing. Women want to be treated as equals. Presumably, this implies that they want to be treated as men are treated. And yet, they require special treatment because certain gestures and even jokes, when addressed to a woman become aggressive.

In truth, one does well not to tell vulgar and obscene jokes to women. In the distant past gentlemen never used foul language around women. And ladies prided themselves on their modesty.

Surely, this was a good idea. Unfortunately, feminists have rejected the code of gentlemanly and ladylike behavior as sexist oppression.

The have created a strange dissonance. On the one hand women want to be treated as professionals. They insist that their sexuality be kept out of any professional equation. On the other hand, second-wave feminism has insisted on the open and honest discussion of female sexuality. The culture of female modesty lost out to a culture defined by The Hite Report, Fear of Flying and The Vagina Monologues.

If feminists fill the media with frank discussions of female anatomy they are not very well placed to condemn men who use vulgar language.

At the least, men will find the culture confusing and threatening.


Ares Olympus said...

re: Ideally, interactions between men and women—inside and outside the workplace-- should be regulated by codes of gentlemanly and ladylike behavior. Today, they are being policed by lawyers.

Since I've never known anyone personally who has ever filed a lawsuit for sexual harrassment, I'm not in a position to judge if Lawyers now the first line of defense for policing gender propriety.

Perhaps lawsuits happen more in big cities where everyone knows someone who won big or lost big in a lawsuit? Perhaps suing is contagious?

Myself, I try to consider the difference between assertiveness and aggression, and the line is often unclear, but as well we might consider whether "codes of gentlemanly and ladylike behavior" allow assertive behavior or not.

I also wonder about how communication skills are learned, and I see a problem (like in Minnesota Nice passive-aggressiveness) is that if you're only assertive as a "last straw" on gross violations of personal boundaries or respect, then there's no room for escalating assertiveness, and its all aggression when it comes out.

It would be nice if Lawyers had the integrity to offer their clients a check list of "escalating responses" to transgressions and see if their client really has some responsibility for failing to speak up before an offense got to the point of needing the law.

Really, it's hard for me to see anyone who would see a lawyer as a proper response to anything. It looks more like someone who can't handle themselves, and need to blame others for their own problems.

Perhaps the popularity of divorce lawyers helps get "weak people" into the door of lawsuits as the solution to their problems, whether their own, or seeing parents fight through lawyers?

It would seem fun to trace it back, and divorce seems the only "gateway drug" I know that makes lawyers the sort of people you'd want to talk to.

n.n said...

The juxtaposition of harassment and abortion is comical. The idea of offering special consideration to women (a la traditional "women first") only made sense before the Feminists' normalization of pro-choice (e.g. selective-child) policy that has rationalized sacrificial rites (and the casual death of nearly one hundred million human lives in America alone) and promoted debasement of human life in pursuit of gender equivalence, corporate ambition, and democratic leverage without accountability. While most women and men know personal boundaries intuitively, the effort to carry out injustice in the name of justice has been serially counterproductive to the positive progress of human nature. Unfortunately, these counterfactual and actually hypocritical doctrines are common in "liberal" societies.

That said, pro-choice as a doctrine is not supported on principle by women or men as a class; although, a majority of women, especially young women, seem to prefer it. While selective or arbitrary/trans behaviors are a popular fad in order to follow secular profits, most women and men are not ignorant of the hazards created through holding unprincipled positions, including denigration of individual dignity (e.g. class diversity) and debasement of human life (e.g. elective abortion).

So, is gender prejudice a common problem, or have exceptional cases been exploited through extrapolation and inference in order to create that perception? Notwithstanding the transgressions committed behind a veil of legal privacy (e.g. abortion industry), the women and men in my experience have been well behaved (i.e. moral), and have done a reasonable job of reconciling individual dignity (as well as intrinsic value).

Dennis said...

I believe that it was English jurisprudent that stated, "The only good law is one that people will pat attention to." (SIC) One might want to add that any law that creates a "damned if you do and damned if you don't" situation create and even larger disrespect for the law and the legal system. It creates a situation where revenge and pay back becomes the norm. There are a thousand ways to destroy a person without ever breaking a law especially in todays environment.
Sadly, the most dangerous people in making the law a dysfunctional profession are lawyers who seem not to recognize the limits of the law to govern people's behavior. Nor do they seem to understand the limit of words to govern behavior. NOTE: There is NO perfect law and nor should anyone try to create one.
When one makes almost everyone a criminal under the law then one creates a condition where there are no criminals. I know for some people saying this may stress one's ability to extrapolate where ideas ultimately end up especially in a human context. It is one of the reasons why some really bad people become mythical.
Rape, sexual harassment, et al need to be clearly defined and not be an example of "the meaning of is" on any current day of the activist or radical feminist machinations. Winning a battle and losing the war is still losing.
Despite the drivel that men don't create teams, strange considering hunting groups, armies, sports teams, et al and the hierarchical structure we utilize, we create a team in almost every environment in which we are involved. We make jokes about each other,giving as much as we take. It is how we create a cohesive unit capable of handling the exigencies of life. Each person has their strengths, weaknesses and competitive advantage that is put to good use improving the group.
One of the reasons one learns about management is not to try and change the working environment right away, especially with a well functioning group.
This is where most women go wrong in that they instantly want to change the work environment to meet their desires instead of fitting in and then make small changes. In many cases if one is not being insulted then one is an outsider. Most men are quite easy to get along with if one takes only the slightest effort to understand the camaraderie that is prevalent. We will test your ability to stand tall and be a part of the group, especially if our lives depend upon it. The women who understand this have little trouble dealing with men. It is about time that a number of women learned that it is NOT "about what women want." It is about what makes a highly functioning group able to use the skills and abilities of each member to its fullest. Leadership is constantly changing and i.e. not always driven from the top.

Sam L. said...

Feminists MUST have it both ways.

Brian Graber said...

Sexual harassment is a problem in the American workplace that will not go away.

Emily Smith said...

Stuart, this was a great post about when to sue for sexual harassment. My cousin has been dealing with sexual harassment at work and is thinking of suing. I will have to show her this article. She will probably find it very eye opening.
Emily Smith |