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.