Legislating morality, or at least grabbing headlines by pretending to want to legislate morality, is a cherished legislative pastime, both on the left and the right. Courts, constrained by the strictures of due process, engage in the more prosaic, solemn task of applying the language of statutes actually enacted to an actual plaintiff and an actual defendant. Nowhere is the tension between moralistic political posturing on the one hand and the strictures of due process on the other more in evidence than in the area of sexual harassment. Two recent judicial attempts at explication de sex reflect the point. A New York attorney carried on a consensual sexual relationship with his secretary for six years. The affair ended, and the attorney sought to reconcile with his estranged wife. At his wife’s insistence, he fired the secretary. The secretary sued under a New York law proscribing employment discrimination based on sex.
Result at trial?
Judgment for the spurned (and unemployed) inamorata. “Just as if [the wife] had decreed that her husband have no black or Jewish employees because of their race or ethnicity,” the trial court reasoned, “defendant’s acquiescence to [his wife’s] demand that he not employ the plaintiff because of her past sexual behavior evidences an illegal discriminatory motive.”
Result on appeal?
Reversed. Judgment for defendant-attorney. There is a distinction, the appellate court ruled, between “sex” as in the activity and “sex” as in gender.
“Although surely antithetical to good business practices,” the court stated, “discrimination against an employee on the basis of a failed voluntarily sexual relationship does not of itself constitute discrimination because of sex.”
In an unrelated case, a federal appeals court ruled that a homosexual employee subjected to harassment from co-workers because of his sexual orientation was not entitled to relief under federal civil rights statutes. The court in that case expressed sympathy for the plaintiff’s unfortunate experience, but could not find a remedy for him in the applicable statute.
“We hold no brief for harassment because of sexual orientation,” the court commiserated, “but we are called upon here to construe a statute … not to make a moral judgment,” and we regard it as settled law that … Title VII [the anti-sexual harassment law] does not proscribe harassment simply because of sexual orientation.”
Title VII of the 1964 Civil Rights Act, as do many state laws, prohibits discrimination based on gender. It prohibits gender-based discrimination in compensation, hiring, promotion, training, termination, and “all other terms, conditions and privileges of employment.”
The two most important categories of sexual harassment are quid pro quo harassment and hostile work environment harassment.
Quid pro quo sexual harassment means unwelcome sexual advances, requests for sexual favors or verbal or physical contact of a sexual nature, where submission to the conduct is either explicitly or implicitly made a condition of employment or submission to or rejection of the conduct is used as the basis for an employment decision.
he legal secretary lost her job — and her remedy — because of the ending of the conduct by the employer. The best advice to anyone romantically entangled with a superior at work is to either get a promotion or look for another job. Doing neither leaves the subordinate personally and professionally vulnerable.
The second major category of sexual harassment involves a hostile work environment. Hostile work environment is defined as verbal or physical conduct “of a sexual nature” that has the purpose or effect of unreasonably interfering with an individual’s work performance or of creating an intimidating, hostile or offensive working environment.
That sounds like the second case, except that the statute only contemplates a remedy for harassment “on the basis of sex.” Under that formulation, the plaintiff’s case is even more removed from the intent of the statute than was that of the legal secretary.
What does it profit a man to gain victory in a sexual harassment suit, but lose the respect of his employees? The Gore-esque defenses asserted in each of the above cases (as in “no controlling legal authority”) beg the question of where each employer went wrong in allowing the particular problem to arise.
As the EEOC has phrased it, “prevention is the best tool for elimination of sexual harassment.” A harassment suit can destroy a small firm, and will, in any sized firm, grip the front office in distracting concerns about trial strategy, legal fees, pride, morale and reputation.
Forms containing written anti-harassment policies are slightly less available to business owners these days than are pre-paid phone cards. The challenge is to be disciplined and consistent in enforcing the guidelines announced to employees (and holding management to the same rules). Think of the effort as akin to following fire code regulations or setting the burglar alarm at the close of the day.
Remember, if you announce a policy against office romances and non-gender-based harassment, you have created an expectation among employees and indeed a right to expect that neither will be tolerated. If you announce the policy and do not enforce it, you are worse off than if you had remained silent.**
© Maryland Gazette. Reprinted with permission.