Sexual Harassment meta-thread: what I'm seeing

The Coffee Shop
41

EEOC is a bad example. My wife does labor law. Near as I can tell, the EEOC never ever saw a sexual harassment complaint they disliked.

The vast majority of harassment charges filed with the EEOC are dismissed with a “right to sue” letter. And that doesn’t include those charges where filed merely to exhaust the administrative remedy and where the letter is immediately requested.
I can’t tell if you are agreeing with my statement or not. You said “dismissed with a “right to sue” letter”.

I don’t understand the use of the word “dismissed”. I would call it something more like “the EEOC supported the complainant’s claim and issued a “right to sue” letter”.

I interpret the right to sue letter as support. But “dismiss” sounds like lack of support. What am I missing?

42

Lauer’s behavior is just about all creepy/inappropriate, but really- egregious examples of true sexual harassment? Sounds more like he was a crass womanizer. Sure, it’s creepy to give a co-worker a dildo with notes on how he would like it used, and it’s sub-adolescent to be playing “marry/fuck/kill” at work, but does that really and truly amount to sexual harassment, let alone “egregious” sexual harassment?

That’s literally a textbook definition of sexual harassment

Literally?

It meets a colloquial definition of sexual harassment. It likely meets the definition included in most employer anti-harassment policies, and it likely violates those policies. It probably is not actionable sexual harassment, and if that were the only allegation in a complaint, it probably wouldn’t survive summary judgment.

Interesting, I would think either of those things at most any place of employment where a level of professionalism is expected would get someone fire. I’d think the dildo would get you canned pretty much anywhere.

It probably would get you fired, but taken in isolation, none of that conduct would likely survive a summary judgment in a lawsuit alleging sexual harassment.

43

What matters is giving a co-worker a dildo and telling her how he would like it used is straight up harassment.

It doesn’t matter if she likes it? Doesn’t matter if there’s a history that would reasonably give him cause to think she wouldn’t object? Doesn’t matter if he stops when she does object? None of that matters?

Nope

Really? I’ll agree that Vitus is arguing an extreme and highly unlikely scenario, but history and context do matter. And it’s not difficult to come up with a scenario, albeit highly unlikely, where that conduct isn’t harassment.

44

Lauer’s behavior is just about all creepy/inappropriate, but really- egregious examples of true sexual harassment? Sounds more like he was a crass womanizer. Sure, it’s creepy to give a co-worker a dildo with notes on how he would like it used, and it’s sub-adolescent to be playing “marry/fuck/kill” at work, but does that really and truly amount to sexual harassment, let alone “egregious” sexual harassment?

That’s literally a textbook definition of sexual harassment

Literally?

It meets a colloquial definition of sexual harassment. It likely meets the definition included in most employer anti-harassment policies, and it likely violates those policies. It probably is not actionable sexual harassment, and if that were the only allegation in a complaint, it probably wouldn’t survive summary judgment.

Interesting, I would think either of those things at most any place of employment where a level of professionalism is expected would get someone fire. I’d think the dildo would get you canned pretty much anywhere.

It probably would get you fired, but taken in isolation, none of that conduct would likely survive a summary judgment in a lawsuit alleging sexual harassment.

Ah, I guess I wasn’t really making a distinction between the two.

45

Lauer’s behavior is just about all creepy/inappropriate, but really- egregious examples of true sexual harassment? Sounds more like he was a crass womanizer. Sure, it’s creepy to give a co-worker a dildo with notes on how he would like it used, and it’s sub-adolescent to be playing “marry/fuck/kill” at work, but does that really and truly amount to sexual harassment, let alone “egregious” sexual harassment?

That’s literally a textbook definition of sexual harassment

Literally?

It meets a colloquial definition of sexual harassment. It likely meets the definition included in most employer anti-harassment policies, and it likely violates those policies. It probably is not actionable sexual harassment, and if that were the only allegation in a complaint, it probably wouldn’t survive summary judgment.

Interesting, I would think either of those things at most any place of employment where a level of professionalism is expected would get someone fire. I’d think the dildo would get you canned pretty much anywhere.

I agree. That’s why I mentioned that it would likely violate most employer anti-harassment policies.

Those policies usually define harassment (and prohibit harassing conduct) more expansively than what might be actionable under law. One reason is to prevent conduct before it crosses the line. Another is to potentially prevent even unfounded lawsuits, which can be cost prohibitive even when you win. But equally important, an expansive policy can help maintain a professional workplace where employees can be most productive.

But it probably would not be unlawful sexual harassment.

46

Generally agree with all of that.

Don’t really agree with this:

Take Charlie Rose, for instance. Even if one instance of leg-touching is not harassment, the fact that he seemed to make it a regular practice to “give it a try” with any female co-worker he found attractive speaks volumes, and even if these women wouldn’t have much of a case individually (and I’m not saying they would or wouldn’t), the volume of allegations might well add up to a good case if they all (or even just a few) joined a lawsuit together because they paint Rose as a sexual opportunist, a lecherous dude, and a little pervy, and women shouldn’t have to put up with that crap as a matter of course from their bosses and co-workers.

Let’s pretend for a minute that he didn’t walk naked in front of a couple of women, and didn’t phone-stalk a 21 year old. Let’s say he just made passes at a half dozen women he worked with by touching their leg. Does that amount to regular practice? And so what if it does? None of the individuals had to “put up” with something that amounted to sexual harassment, did they? He made passes at six women he worked with over a period of time. That’s it. None of them were harmed, coerced, pressured, or retaliated against. There’s no indication there was some overarching hostile environment created. The passes were a series of isolated incidents, each of which appears well within the bounds of reasonableness. And there were probably a hundred women he worked with over that period of time he didn’t make passes at.

What’s the additional harm created by the fact that he made passes at more than one woman?

47

EEOC is a bad example. My wife does labor law. Near as I can tell, the EEOC never ever saw a sexual harassment complaint they disliked.

The vast majority of harassment charges filed with the EEOC are dismissed with a “right to sue” letter. And that doesn’t include those charges where filed merely to exhaust the administrative remedy and where the letter is immediately requested.
I can’t tell if you are agreeing with my statement or not. You said “dismissed with a “right to sue” letter”.

I don’t understand the use of the word “dismissed”. I would call it something more like “the EEOC supported the complainant’s claim and issued a “right to sue” letter”.

I interpret the right to sue letter as support. But “dismiss” sounds like lack of support. What am I missing?

The “right to sue:” letter is not support of a charge. Rather, it’s proof that the employee exhausted his or her administrative remedy and can now proceed to court.

Before anyone can file an action under Title VII in federal court, he must exhaust his administrative remedy. This means he has to file a charge with the EEOC.

In many and perhaps most cases, the individual already has a lawyer and prefers to pursue the allegations in court. In those situations, the lawyer/individual files the charge with the EEOC but also requests the immediate issuance of a “right to sue” letter. The EEOC then closes the case (dismisses) and issues the letter.

If the letter is not immediately requested, then the EEOC may investigate. If the EEOC finds sufficient merit to the charge, then it may pursue and litigate the case administratively. That’s uncommon. In most cases, the EEOC determines that the case is without merit or that there isn’t sufficiently compelling evidence to invest its resources in pursuing the case. It may also be that the EEOC was not able to properly investigate the case within the necessary time limits. In those cases, the EEOC effectively dismisses, but dismissal is always accompanied by a “right to sue” letter. The individual can then decide whether to pursue the case in federal court, without the EEOC’s support.

48

Generally agree with all of that.

Don’t really agree with this:

Take Charlie Rose, for instance. Even if one instance of leg-touching is not harassment, the fact that he seemed to make it a regular practice to “give it a try” with any female co-worker he found attractive speaks volumes, and even if these women wouldn’t have much of a case individually (and I’m not saying they would or wouldn’t), the volume of allegations might well add up to a good case if they all (or even just a few) joined a lawsuit together because they paint Rose as a sexual opportunist, a lecherous dude, and a little pervy, and women shouldn’t have to put up with that crap as a matter of course from their bosses and co-workers.

Let’s pretend for a minute that he didn’t walk naked in front of a couple of women, and didn’t phone-stalk a 21 year old. Let’s say he just made passes at a half dozen women he worked with by touching their leg. Does that amount to regular practice? And so what if it does? None of the individuals had to “put up” with something that amounted to sexual harassment, did they? He made passes at six women he worked with over a period of time. That’s it. None of them were harmed, coerced, pressured, or retaliated against. There’s no indication there was some overarching hostile environment created. The passes were a series of isolated incidents, each of which appears well within the bounds of reasonableness. And there were probably a hundred women he worked with over that period of time he didn’t make passes at.

What’s the additional harm created by the fact that he made passes at more than one woman?

I’m happy to answer your question, but it’s going to require getting into legal definitions and lawsuit stuff, which you already took me to task for in the First Amendment discussions we all had a couple of weeks ago. Do you want to talk about the legal aspect of it, or do you want to talk about what you and the rest of the male population think should constitute sexual harassment in a general, but non-legal sense?

49

Do you want to talk about the legal aspect of it, or do you want to talk about what you and the rest of the male population think should constitute sexual harassment in a general, but non-legal sense?

Both, how about?

50

The “right to sue:” letter is not support of a charge. Rather, it’s proof that the employee exhausted his or her administrative remedy and can now proceed to court.

Before anyone can file an action under Title VII in federal court, he must exhaust his administrative remedy. This means he has to file a charge with the EEOC.

In many and perhaps most cases, the individual already has a lawyer and prefers to pursue the allegations in court. In those situations, the lawyer/individual files the charge with the EEOC but also requests the immediate issuance of a “right to sue” letter. The EEOC then closes the case (dismisses) and issues the letter.

If the letter is not immediately requested, then the EEOC may investigate. If the EEOC finds sufficient merit to the charge, then it may pursue and litigate the case administratively. That’s uncommon. In most cases, the EEOC determines that the case is without merit or that there isn’t sufficiently compelling evidence to invest its resources in pursuing the case. It may also be that the EEOC was not able to properly investigate the case within the necessary time limits. In those cases, the EEOC effectively dismisses, but dismissal is always accompanied by a “right to sue” letter. The individual can then decide whether to pursue the case in federal court, without the EEOC’s support.
But by definition, doesn’t the right to sue letter include language along the lines of “EEOC has determined that there are grounds for a discrimination claim”? That sounds to me like the EEOC is saying “we have investigated the claim and it has merit”.

You clearly know more about this than me. I’m not arguing, I’m trying to learn.

51

Do you want to talk about the legal aspect of it, or do you want to talk about what you and the rest of the male population think should constitute sexual harassment in a general, but non-legal sense?

Both, how about?

Okay, but first I need clarification. You asked:

What’s the additional harm created by the fact that he made passes at more than one woman?

Are we assuming that none of the other stuff happened and that the extent of his transgressions amounts to six leg touches, or are all of the allegations at play in our analysis? I only ask because in your previous post, you presented me with just that hypothetical.

52

Really? I’ll agree that Vitus is arguing an extreme and highly unlikely scenario, but history and context do matter. And it’s not difficult to come up with a scenario, albeit highly unlikely, where that conduct isn’t harassment. //

For example, what if the week before she gave him a rubber vagina with a funny note attached to it?? Do they both now go down together(not literally) , or is it now just an office prank among co workers??

53

But by definition, doesn’t the right to sue letter include language along the lines of “EEOC has determined that there are grounds for a discrimination claim”? That sounds to me like the EEOC is saying “we have investigated the claim and it has merit”.

You clearly know more about this than me. I’m not arguing, I’m trying to learn.

No, it doesn’t say that. There are many reasons a dismissal may occur. The right to sue letter typically includes a check box indicating why the charge was dismissed and then recites the boiler plate language telling the person they have a right to bring a lawsuit within 90 days of the date the letter is received.

FWIW, even if the EEOC thinks discrimination occurred, the language of the letter doesn’t say that. It says essentially that after investigation, the EEOC has determined that there is “cause to believe” that discrimination occurred. The agency itself never actually makes a formalized determination that discrimination did or did not occur.

54

The “right to sue:” letter is not support of a charge. Rather, it’s proof that the employee exhausted his or her administrative remedy and can now proceed to court.

Before anyone can file an action under Title VII in federal court, he must exhaust his administrative remedy. This means he has to file a charge with the EEOC.

In many and perhaps most cases, the individual already has a lawyer and prefers to pursue the allegations in court. In those situations, the lawyer/individual files the charge with the EEOC but also requests the immediate issuance of a “right to sue” letter. The EEOC then closes the case (dismisses) and issues the letter.

If the letter is not immediately requested, then the EEOC may investigate. If the EEOC finds sufficient merit to the charge, then it may pursue and litigate the case administratively. That’s uncommon. In most cases, the EEOC determines that the case is without merit or that there isn’t sufficiently compelling evidence to invest its resources in pursuing the case. It may also be that the EEOC was not able to properly investigate the case within the necessary time limits. In those cases, the EEOC effectively dismisses, but dismissal is always accompanied by a “right to sue” letter. The individual can then decide whether to pursue the case in federal court, without the EEOC’s support.
But by definition, doesn’t the right to sue letter include language along the lines of “EEOC has determined that there are grounds for a discrimination claim”? That sounds to me like the EEOC is saying “we have investigated the claim and it has merit”.

You clearly know more about this than me. I’m not arguing, I’m trying to learn.

To clarify, there are two types of “right to se” letters.

There is a Dismissal and Notice of Rights, which indicates that the EEOC has not found anything but that the employee can pursue the case in federal court.

There is also a Notice of Determination, where the EEOC has made a determination that there are grounds for the claim, but that the EEOC is not taking up the case, so there is also a corresponding right to sue.

As mentioned above, the EEOC will also issue a right to sue upon request.

In all cases, the employee has exhausted the administrative remedy and can now pursue the case on his or her own. The practical difference is that it may be easier to find an attorney to take the case if a Notice of Determination has been issued than if the case had been dismissed. But that’s not always true.

55

Are we assuming that none of the other stuff happened and that the extent of his transgressions amounts to six leg touches, or are all of the allegations at play in our analysis?

I’m not sure it matters, really. Just because he sexually harassed two or three women does not mean that he harassed every woman he made a pass at.

But for simplicity’s sake, let’s stick with the hypothetical. It’s just the leg touches.

56

Lauer’s behavior is just about all creepy/inappropriate, but really- egregious examples of true sexual harassment? Sounds more like he was a crass womanizer. Sure, it’s creepy to give a co-worker a dildo with notes on how he would like it used, and it’s sub-adolescent to be playing “marry/fuck/kill” at work, but does that really and truly amount to sexual harassment, let alone “egregious” sexual harassment?

That’s literally a textbook definition of sexual harassment

Literally?

It meets a colloquial definition of sexual harassment. It likely meets the definition included in most employer anti-harassment policies, and it likely violates those policies. It probably is not actionable sexual harassment, and if that were the only allegation in a complaint, it probably wouldn’t survive summary judgment.

I completely agree with the first part of your statement and see your point for the second but I think how the company reacted would probably determine whether it survived summary, no?

57

Really? I’ll agree that Vitus is arguing an extreme and highly unlikely scenario, but history and context do matter. And it’s not difficult to come up with a scenario, albeit highly unlikely, where that conduct isn’t harassment. //

For example, what if the week before she gave him a rubber vagina with a funny note attached to it?? Do they both now go down together(not literally) , or is it now just an office prank among co workers??

Consensual conduct is not harassment, even as defined by many employer policies.

But while not harassment, it would probably still be considered unprofessional and inappropriate for the workplace.

Someone else also pointed this out earlier, but what may truly be consensual and welcome conduct can “conveniently” be characterized by one of the parties as unwelcome if the relationship has soured, if there’s poor performance review, or in the event of discipline.

58

Are we assuming that none of the other stuff happened and that the extent of his transgressions amounts to six leg touches, or are all of the allegations at play in our analysis?

I’m not sure it matters, really. Just because he sexually harassed two or three women does not mean that he harassed every woman he made a pass at.

But for simplicity’s sake, let’s stick with the hypothetical. It’s just the leg touches.** **

That does make it easier.

It actually DOES matter if the other stuff happened. If he sexually harassed 2 or 3 women, the leg touches can be spun a different way. I would agree with anyone at all that each individual leg touch wouldn’t give rise to an actionable lawsuit for the woman touched, but taken in aggregation, particularly with evidence that he sexually harassed 2 or 3 other women, I could see a jury taking his employer to task for not reigning him in and allowing him to troll the employee ranks for sexual trysts. There may be no “additional harm,” but if you pile up enough instances of harassment, even if they all have different victims, and if you can demonstrate that CBS knew or should’ve known about them and did nothing, there could definitely be legal liability in favor of one of the leg-touched women for having to be subjected to a sexual advance that could’ve been easily prevented by enforcement of the employer’s anti-harassment policy.

On the contrary, if all you have is a series of six leg touches, each with a different person, I think it becomes harder to establish the severity and pervasiveness necessary to establish a viable legal case. Not saying it’s impossible, but likely much harder for a plaintiff to prevail. That said, it might still violate the employer’s harassment policy (I’d have to know what it said), and if he has a history of doing these things, something more than just a slap on the wrist (maybe termination?) might be warranted.

On the non-legal front, the leg touching seems pretty creepy to me when taken in isolation. I’d need to know what the banter was before that. When I was still in the dating pool, I would not have physically touched a woman on the leg in order to make a pass. It would have had to start with a lot of flirtation and any “touching” would have been much less intimate until I was damn sure she was interested. I don’t know the context of Rose’s leg touches, so I can’t say if all six were just him getting crossed signals or what. But, the leg touch stuff does strike me as a little beyond just making a pass. Just my initial reaction to it.

59

Lauer’s behavior is just about all creepy/inappropriate, but really- egregious examples of true sexual harassment? Sounds more like he was a crass womanizer. Sure, it’s creepy to give a co-worker a dildo with notes on how he would like it used, and it’s sub-adolescent to be playing “marry/fuck/kill” at work, but does that really and truly amount to sexual harassment, let alone “egregious” sexual harassment?

That’s literally a textbook definition of sexual harassment

Literally?

It meets a colloquial definition of sexual harassment. It likely meets the definition included in most employer anti-harassment policies, and it likely violates those policies. It probably is not actionable sexual harassment, and if that were the only allegation in a complaint, it probably wouldn’t survive summary judgment.

I completely agree with the first part of your statement and see your point for the second but I think how the company reacted would probably determine whether it survived summary, no?

Typically, to be actionable as a hostile work environment, the conduct has to be severe and pervasive. I’ve seen cases where actual sexual assault* was considered severe and pervasive, so I have a hard time seeing how a dildo with a note would be.

*employee came up from behind a co-worker, reached around her with both arms and up her blouse, and grabbed her breasts, employee was prosecuted and convicted criminally, yet employer was not liable on summary judgment because the single incident wasn’t severe and pervasive.

60

Lauer’s behavior is just about all creepy/inappropriate, but really- egregious examples of true sexual harassment? Sounds more like he was a crass womanizer. Sure, it’s creepy to give a co-worker a dildo with notes on how he would like it used, and it’s sub-adolescent to be playing “marry/fuck/kill” at work, but does that really and truly amount to sexual harassment, let alone “egregious” sexual harassment?

That’s literally a textbook definition of sexual harassment

Literally?

It meets a colloquial definition of sexual harassment. It likely meets the definition included in most employer anti-harassment policies, and it likely violates those policies. It probably is not actionable sexual harassment, and if that were the only allegation in a complaint, it probably wouldn’t survive summary judgment.

I completely agree with the first part of your statement and see your point for the second but I think how the company reacted would probably determine whether it survived summary, no?

Typically, to be actionable as a hostile work environment, the conduct has to be severe and pervasive. I’ve seen cases where actual sexual assault* was considered severe and pervasive, so I have a hard time seeing how a dildo with a note would be.

*employee came up from behind a co-worker, reached around her with both arms and up her blouse, and grabbed her breasts, employee was prosecuted and convicted criminally, yet employer was not liable on summary judgment because the single incident wasn’t severe and pervasive.

I can just picture HR people’s heads exploding after reading that. Do you know if ge was fired or the outcome of similar situation if not fired?