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After All This Time, Why Don't People Know What Sexual Harassment Means?
(FORTUNE Magazine) – DEAR READERS: It's a very odd state of affairs (no pun intended): Sexual harassment in the workplace has been illegal under federal law since 1977, and in the past two decades has unquestionably gotten far more ink and airplay in the media than all other personnel issues combined. Not to mention all those stern memos you keep getting from the human resources department (well, okay, the lawyers actually write them) about company policy. You would think by now that everyone would have a pretty clear idea of what sexual harassment is and is not. Alas, you would be wrong. A letter in this space in the Oct. 27 issue, from someone who signed herself "Drained," brought forth a torrent of E-mails pretty clearly demonstrating that on this subject, lots of folks are utterly clueless. That doesn't stop anybody from filing a lawsuit, of course: The Equal Employment Opportunity Commission in Washington reports that between 1990 and 1996, formal sexual harassment complaints filed with the agency jumped 150%, to 15,342 in 1996. Says Betsy Plevan, a partner at Proskauer Rose in Manhattan and a leading defender of companies against such claims: "There is still a tremendous amount of confusion--and a few years from now, I have no doubt there still will be." Judith Vladeck, a prominent plaintiffs attorney in this area, suspects that "a lot of the confusion is deliberate. People who are against any kind of feminist advance in the workplace spread these absurd rumors, like, 'Oh, if you even tell someone you like the blouse they're wearing, they can sue you.' It's arrant nonsense, yet people believe it." Well. A certain degree of mystification is understandable for at least three reasons. First, in trying to ward off costly and embarrassing legal actions, many companies set a far higher standard for acceptable behavior in this area than the law requires. Just look at the infamous "Seinfeld case"--you know, where Miller Brewing Co. fired Jerold Mackenzie for showing somebody a page in a dictionary; he sued to get his job back, and a jury (with, let us note, ten women on it) awarded him $26 million. "Where is the line between bad taste and outright harassment? A company can discipline an employee for behavior that does not meet the legal standard for sexual harassment," says Plevan. "Generally, just poor taste or questionable language is not enough to constitute harassment." On this point, lawyers on both sides of the table agree. Says Vladeck: "Where we get into trouble with definitions, in the public mind, is that people hear this phrase 'hostile environment harassment,' and they think it means any kind of annoying behavior--that you can sue someone because they offend you or get on your nerves. But that is not what the law says. Nor should it." The second reason so many people are in the dark about all this is that, as with attempts to define obscenity, harassment may, to some extent, be in the eye of the beholder. What is acceptable or even routine in one community, or one corporate culture, may not be at all okay somewhere else. Women on Wall Street, for instance, have long tolerated an adolescent locker-room mentality that would shock people in more, um, buttoned-down workplaces. Usually juries take this into account, so their decisions don't--and arguably shouldn't--create any uniform standard. And third, even a close look at a fast-growing body of court precedents does not do much to clear things up. On the one hand, you have the Supreme Court's 1993 landmark decision in Harris v. Forklift Systems, which held that an intimidating or abusive environment (Harris' boss used to make her fish coins out of his pants pockets and proposed negotiating her raise at a nearby Holiday Inn) is indeed actionable, even if it does not "seriously affect [an employee's] psychological well-being." On the other hand, just this past summer you have Robinson v. City of Pittsburgh. In this case, the U.S. Court of Appeals for the Third Circuit decided that plaintiffs have no case unless they can show that sexual harassment "affected a tangible condition of employment"--that is, unless plaintiffs have been fired, suspended, or denied a promotion because they wouldn't play the game. Between these two extremes are lots of other cases, and resulting legal standards, that (trust me) you don't even want to hear about. So let's say that all you want is to stay out of trouble here. Believe it or not, it's easy. Here's what you can do: Compliment people on their wardrobes or hair or whatever the heck you like. Ask people out if you want to. (Even more than once is okay.) Don't bother pretending you haven't noticed that, yes, people do bring their hormones to work with them. Here's what you can't do: Threaten anybody with any adverse consequences if they choose not to canoodle with you. Go out of your way to make people feel like mindless objects who exist for your amusement and for no other purpose. Embarrass people by pointing up their sexual features to others. Make such a pest of yourself that it is impossible for anyone to do her (or his) best work in the job that she (or he) is being paid to do. In short, conduct yourself like a decent human being. "When we do sexual harassment training workshops in companies, we ask people to look at different kinds of insensitive or abusive behavior and ask themselves, Is this appropriate for the workplace?" says Betsy Plevan. "Is this something you would want to read about yourself in the Wall Street Journal? Would you want your mother to hear about it? In other words, Are you proud of this?" Adds Vladeck: "Even the most thickheaded people will suddenly 'get it' if you ask them, Would you like someone to treat your daughter this way?" Enough said. |
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