Sexual Harassment: Are We Now Too Sensitive?
Are fears of sexual-harassment lawsuits stifling Westchester businesses?
When the human resources department at Richard Michaels’s* job told him that he’d been accused of sexual harassment, he was confused. The representative told Michaels, a manager at his company, that one of the employees he oversaw alleged that he had kissed her. Experts agree that forcible touching of employees by managers is a serious matter, morally dubious, and legally actionable on almost every jurisdictional level, including the federal. Michaels even knew that the accusation was true. He had, in fact, kissed the woman. Yet he felt sure that he had done nothing wrong.
A few weeks before the employee lodged the harassment complaint, she’d gotten married, inviting her entire department, including Michaels, to the wedding. After the ceremony, like everyone else on the receiving line, Michaels shook the hand of his coworker’s new husband and congratulated the coworker by kissing her on the cheek. Unlike everyone else on the line, though, he discovered she had made his kiss into a claim of sexual harassment.
Really? A kiss on the cheek at a wedding constitutes sexual harassment? Employment lawyer Terri Solomon, of New York City, thinks it, and a small but significant portion of such complaints, are ridiculous. “It just wastes everybody’s time,” she says. “There are too many complaints that are meritless.”
Those concerned with meritless suits point to a growing list of cases, some famous, some infamous, and some intriguing but important ones that never make the headlines. Among them:
*A six-year-old boy at a Boston-area school was suspended under his school’s sexual-harassment policy when he was accused of placing two fingers under a classmate’s waistband, after she touched him. The boy claimed he had only touched the girl’s T-shirt. Charges were not filed against the boy, as Massachusetts’s juvenile criminal laws do not apply to those under seven.
*A municipal worker in Murfreesboro, Tennessee, was so upset by a work of art that partially showed a woman’s breasts that the city hung in a public vestibule that she submitted a sexual-harassment claim. The city took the painting down, but the artist, Maxine Henderson, sued it for a First Amendment violation and won.
*Carl Sassaman sued his employer at the Dutchess County Board of Elections in 2008 for sexual harassment. Sassaman claimed that, when the Board fired him after a female colleague complained that he had sexually harassed her, the Board was, in fact, sexually harassing him because the firing amounted to anti-male biases. The case was recently dismissed after several appeals.
Yorktown resident *Harry Karagozian, 87, was charged with forcible touching—a misdemeanor; he was accused of allegedly pinching a five-year-old girl at an A&P supermarket. Karagozian denied the charges, saying that he had bent down to pick up a coin when the little girl standing in front of him fell backwards. According to Karagozian, he gave the girl a nudge to keep her upright. He had also said that the police never asked his side of the story. The case was nullified.
So, how did we get here? How could a firing or a pinch or a kiss on the receiving line become the proverbial federal case?
The history of sexual harassment begins with the enacting of the Civil Rights Act of 1964. Title VII of that bill outlawed discrimination in employment on the basis of race, color, religion, national origin, and sex. At the time, most felt that the prohibition related to decisions in hiring, firing, and promoting. In the years following the passage of the Civil Rights Act, however, the women’s movement began to take hold, and many leading the movement wanted to find a way to deal legally with other issues that women frequently faced at work, including “quid pro quo” harassment, in which a supervisor conditions some work benefit on an employee’s performing sexual favors (or punishment on failing to do so). Feminist legal scholars began arguing quid pro quo harassment was discriminatory (and thus violated Title VII) because it placed a barrier to advancement on one gender and not the other.
Abigail Saguy, a sociologist at UCLA and author of What Is Sexual Harassment?: From Capitol Hill to the Sorbonne (University of California Press), argues that, “If you’re being propositioned and if you’re being sexually coerced, and if you’re constantly being made to feel unsafe and uncomfortable, you can’t say that you have the same opportunity to succeed as your male colleague, who isn’t having to deal with all that stuff.”
In 1976, more than a decade after the Civil Rights Act, a U. S. district court agreed. By 1980, the Equal Employment Opportunity Commission, which Congress established to enforce Title VII, adopted guidelines interpreting sexual harassment as a form of sex discrimination in violation of the Civil Rights Act. Its definition of sexual harassment included quid pro quo harassment, but it also stressed that conduct that created a “hostile environment” could constitute sexual harassment if the conduct was unwelcome and bad enough (either in severity or pervasiveness) that a reasonable person would find it had made advancement more difficult for those suffering it. This form of harassment could include touching, display of pornography, and even comments.
In many ways, the new interpretations codified a principle. “Very few people will disagree with you when you say it’s important to have a workplace that’s free of sexual harassment,” says Tejash Sanchala, an employment lawyer in White Plains who has represented complainants and respondents in a number of sexual-harassment cases. Sanchala admits, though, that people don’t always like the way a principle is put into practice. “There’s differences in how you interpret a scenario, because it’s not black or white,” he says.
Indeed, many argue that, for all its good intent, the hostile environment definition, largely still intact today, is dangerously broad. For a sexual-harassment claim, “all you need to prove is that the environment in your workplace is sufficiently unpleasant,” says David Bernstein, a professor of law at George Mason University in Virginia and author of You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws. “Even if no one has done anything to you based on your sex, the fact that you feel uncomfortable means that you may have a valid claim.”
Bernstein and others say there is a long list of cases in which discomfort—and not disadvantage—was the basis for the claim. In one of the most famous of these, a woman successfully sued her manager and employer when the manager told her about a situation from the popular TV sitcom Seinfeld that punned on the word “clitoris.” The employee recovered damages even though she herself asked the manager to explain the joke.
Chappaqua resident Walter Olson, a senior fellow at the Manhattan Institute and author of The Excuse Factory: How Employment Law Is Paralyzing the American Workplace, is taken aback that workers can basically sue because they are “offended by what was just on TV for everyone, including kids, to watch.” Quite a paradox, he notes. “We protect and cherish and uphold the right to speak frankly about politics and religion and sex. And yet, all of a sudden, when you reach the threshold of the workplace, the government clamps down on conversation.”
Bernstein and Olson, among others, argue that cases like the Seinfeld case help demonstrate how the law enables someone simply to sue for being subjected to things they don’t like. And it often seems that one of the things Americans like least is sex. “People feel that their discomfort about sexuality is privileged,” says Marty Klein, a psychologist and licensed marriage and family therapist in Palo Alto, California, adding that many feel that their sexual discomfort “has to be taken care of in a different way than their discomfort about other things.”
Many companies have every reason to fear sexual discomfort, given how much it could cost them. Employers “worry about liability,” Olson notes. It can be very expensive. A complainant today gets, on average, $250,000 if he or she wins a trial, and the defendant company has to pay lawyers’ fees. It’s difficult to know how many cases go to trial, but Sanchala, the lawyer from White Plains, reports that “the overwhelming majority of the cases” are resolved before that stage. Still, more than 12,000 sexual-harassment complaints are lodged every year on the federal level alone. Complaints also can be lodged on state, county, and city levels, and many workers simply choose civil suits.
As a result, some companies have adopted highly stringent policies. Some companies, for example, prohibit supervisors from having closed-door meetings with employees of the opposite sex. “That doesn’t make any sense,” says Sanchala, “if you’re discussing something sensitive.” Terri Solomon says many supervisors fear traveling or even having a business lunch with members of the opposite sex. “They don’t want to be accused of sex harassment,” she says. There’s an irony here, of course, as the inability to meet privately with the boss or travel on pitches can be a discriminatory denial of opportunity. “People are possibly reverting to sex discrimination and not giving equal opportunity,” Solomon says.
Much of companies’ sex-fear shows itself in policies toward dating. In the 1990s, many companies instituted zero-tolerance policies on inter-office dating, in which any two employees who had a romantic liaison were automatically terminated. The intention was to prevent quasi-consensual relationships between supervisors and their employees (in which employees consented but only because of the power dynamic). There were also concerns about how co-workers who break up might treat each other. Although such policies have become less common, Philip S. Deming, a human-resources consultant outside Philadelphia who often investigates harassment claims, says that the policies that attempt to control workers’ consensual sexual relationships are both unfair and ineffective. “Every workplace has romances,” says Deming. “It’s a reality.” Besides, he notes, “I always question whether it makes sense to have a non-fraternization policy; it forces employees to lie.”
After all, one study of Canadian workers, found that 45 percent of workers had had an office romance that they had tried to hide (although only 22 percent of workers said their office had a policy against inter-office dating); 81 percent of Canadians age 18 to 24 had had a workplace romance openly. In the U.S., 41 percent of workers age 25 to 40 have had an office romance, and, although 72 percent of offices said they had a formal policy on the books forbidding dating (either among all workers, or just between supervisors and subordinates), 55 percent of HR managers reported that a wedding was the most likely outcome of many of these relationships. Plus most experts agree that workers’ unwillingness to admit to breaking the rules make these statistics deceptively low.
Andrew Marks, a lawyer who lives in White Plains, says that this fear has extended even to friendships that could be misconstrued as something else, and he says that it has impacted the way he interacts with the people in his office. “I don’t comment,” he says simply, noteven in a friendly way. “To most people, work colleagues are your friends until they don’t want to be your friends anymore and they sue you.
People are confused as to what their workplace relationships are.”
And sexually uptight. “There are a lot of people who are uncomfortable with sex or who are angry about sex or who hate sex, and they have harnessed public policy both in the government and outside the government in an attempt to restrict the sexual choices that everybody has,” says Marty Klein, the psychologist from Palo Alto. He adds that the goal of some Americans is to remove—and censor if necessary—sex as much as possible, not just from the office but from the public sphere in general.
He points out just how far outside the office it can go. The issue, for instance, frequently comes up at schools. One recent New York Times article noted that many schools “wary in a litigious era about sexual harassment or improper touching…have banned hugging or imposed a three-second rule” that limits hugging between students to just three seconds.
Westchester is certainly no stranger to the problem of sexual hyper-sensitivities where children are concerned. In 2007, Jeffrey Kirby, a middle-school biology and anatomy teacher at the PEARLS Hawthorne School in Yonkers, was disciplined after parents complained that he asked students to draw and label the male genitalia as part of a state-mandated curriculum. (Kirby has sued the school district in federal court. The case is pending.)
“I think that it’s very clear that when grown-ups pass regulations designed to prevent children from being sexual with each other or designed to prevent children from exploring their own bodies,” says Klein, “that’s not about what’s good for children. It’s to avoid dealing with their own anxiety about sex.”
Klein points to the recent phenomenon of “sexting” (in which teenagers send sexual images of themselves to friends and lovers via cellphone) as an example of sexual paranoia run amok. Some sexters have been charged with distributing child pornography for sending around pictures of their own bodies. The charges could result in jail time, and legal analysts say that the youths might have to register as sex offenders. Adults have even been caught up in this: one vice principal in Virginia lost his job and paid $150,000 in legal costs to fight the child porn charges levied against him when the principal of his school told him to retain a single image of a topless (but mostly-covered) student recovered during an investigation into sexting. “That’s not about being helpful to the kids,” Klein says.
“I think we like to say, ‘Kids today…’ and blame them,” says Martha Kempner, vice president for Information and Communications for the Sexuality Information and Education Council of the United States. “But the truth of the matter is, we gave them all of those messages. We are the marketers. We are the program writers. We are the educators. We’re the policy makers.”
It is difficult to quantify Americans’ sexual attitudes and behaviors. The last large-scale study, Sex in America, which took place in the early 1990s, had to rely on private grants after Jesse Helms got its Congressional funding cut. “In some circles, sex research isn’t considered legitimate research,” Kempner says.
Ironically, as our society becomes more “open,” we, in some sense, may have grown more prudish. The percentage of adults who have had more than 21 sexual partners is much higher for those who came of age in the ‘60s than for those who came of age during the AIDS crisis of the 1980s and 1990s. Americans, on average, have sex about half as often as the French, and, while nude beaches are a common sight in many European countries (in Holland, since 1986, public roads have been one of the few places where people can’t strip down), they are decidedly not in the U. S.
And yet the teen birth rate in the Netherlands is less than 10 percent of what it is in the United States, a difference that activists blame on America’s reluctance to teach about contraception. Amy Levine, a certified sexuality educator in New York and founder of sexedsolutions.com, says teens in America often lose their virginity in furtive, unplanned, regretted encounters. Scandinavian teens, on the other hand, lose their virginity most often in the home, Levine reports, and she says Scandinavian parents not only know what’s going on but embrace it. “You wake up in the morning and you all have breakfast together.”
“I think that the introduction of HIV gave a platform for some to blame sex and turn sex into something very dangerous and very evil,” says Kempner.
However, Levine opines that American culture has evolved—a bit. “Thirty, forty years ago, conversations about sex weren’t happening,” she says.
And perhaps that accounts for the number of sexual harassment complaints—which some argue aren’t filed as often as they should be. “I think sexual harassment is very underreported,” says Anne Golden, partner for Outten and Golden LLC. In fact, while the number of claims has risen to more than 20,000 on the federal level alone, various surveys suggest that anywhere from 40 to 80 percent of working women have experienced harassment. “Many, many women are afraid to report it,” Golden says, adding that, if women are afraid to file legitimate complaints, they’re really uninterested in specious ones. “I have seen, I think, two in my twenty-four years of representing employees.”
Richard Michaels eventually left his job after his coworker’s complaint, but he never forgot about it. “Years after this thing arose, he was still really shaken,” says Solomon of Michaels.
The sentiment seems to be common. Walter Olson says that sexual harassment “is an area of law that lawyers often compare with divorce law, as far as how personal and horrible a process it is to be dragged through. “Often, people that you’ve known and liked for years and years turn into enemies and never talk to each other again. It’s like workplace divorce.” Does it have to be like that? Solomon doesn’t think so. “So many of these cases can be avoided,” she says. Solomon says it’s important to get rid of the sexist jokes, the unprompted touching, the naughty screensavers, although she concedes that “you’re never going to totally eradicate comments in the workplace that make people feel offended.”
She has a recommendation, though, for those who want to avoid lawsuits: apologize. “Then people move on,” she says, “because their feelings are respected, and everybody makes mistakes.”
Freelancer Ben Brody is a senior at Yale and editor of the Yale Daily News Magazine. He is originally from Tuckahoe.