Sexual harassment of women at work has been a pet issue for feminist since the 1970’s. Once they burst into traditionally male jobs, women found the behavior of men distasteful. Women complained of depression, alcoholism and even suicide because they could not cope with the atmosphere of the masculine workplace. It is true that some of these women were in truly wretched situations and deserved some legal justice; however, extreme cases make bad law.
The term “sexual harassment” was coined in 1975 by a woman named Lin Farley.
After a “consciousness raising” seminar, where women talked about men making sexist remarks to them, making sexual comments and asking them out, Farley invented the term and took the issue nationwide. She wrote a book, gave countless interviews and also produced a video that companies and the government sometimes showed to their employees. The outcry of feminists did lead to legal change – in the form of sexual harassment jurisprudence. Understand that, at the federal level, it is judge-made law. While The Civil Rights Act is relied to get into court, there are no statues at the federal level about sexual harassment. States may have passed laws about sexual harassment (SH), but I did not do any research on that.
SH claims are based on Title VII in the 1964 Civil Rights Act. Obviously, the context at the time was preventing racial harassment at work. The first Supreme Court case about racial harassment at work, Rogers v. EEOC
, laid the groundwork for sexual harassment law to come into being. In the case, Justice Goldberg stated Title VII should be afforded a liberal interpretation to effectuate Congress’ intent to prevent racial discrimination and harassment. In the case, a doctor segregated Hispanic patients from the rest of his patients. Courts were initially skeptical of extending Title VII to sexual harassment, because obviously Congress’ intent with the Civil Rights Act was helping minorities. That is, until the Meritor
decision in 1986.
Meritor Savings Bank v. Vinson
held that discriminatory sexual harassment that creates a hostile work environment for the complainant violates Title VII. In one stroke, the Supreme Court opened the floodgates for lawsuits. Many more cases helped flesh out the approach the legal system takes about SH. Unfortunately, the courts in America have relied on radical feminist Catherine MacKinnon as their source about sexual harassment at work.
A picture of the bitch MacKinnon:
Generally speaking, there are two avenues by which a woman could sue her employer. She could either allege a quid pro quo situation or a hostile work environment. I will consider both of these situations separately.
Quid pro quo is simply a situation where a woman provides sex for benefits, continued employment, etc. There really isn’t much to say about this situation, but the hostile work environment is a doozy.
A hostile work environment refers to a pattern of behavior, over the course of time or one outrageous incident, that is sexual in nature, uncomfortable, etc. It depends purely on the perception of the plaintiff. Successful lawsuits have included one male who was repeatedly referred to as a “fairy” and told to be manlier, a woman whose boss repeatedly told her to wear more makeup, and a woman who was asked, in an interview, if she was married or expecting to have children in the future.
Let’s step through the elements that must be proved at trial. First, the plaintiff must allege they belong to a protected class. This prong is always met as the plaintiff will allege they were targeted because of their gender. Second, the plaintiff must prove the advances or actions were unwelcome. One crazy feminist in the UCLA Law Review argued the burden of proof should be shifted to the defendant, who will then have to prove that his or her advances were indeed welcome. Third, is that the harassment was based on sex. This prong has resulted in some bizarre cases making issues out of whether the alleged harasser was straight, gay or bisexual.
Fourth is that the harassment violated a term of the employment. I can’t imagine a plaintiff unable to prove that the harassment wasn’t a violation of their contract; thumbing through the legal textbook I have, I didn’t see any cases working this issue. Fifth, is the doctrine of respondeat superior applies. I won’t go into the various theories of legal liability for an employer, but for the purposes of this writeup, understand that just because a person can meet the legal burden to prove harassment, it does not mean that the employer will necessarily be held liable by a court.
The second prong about unwelcome advances is the most problematic of all the elements. In Ellison v. Brady
(a 9th Circuit case, mind you) apparently took a “reasonable woman” standard for plaintiffs – i.e. courts will judge a case by whether a reasonable woman would have been offended or hurt by the advances or situation. The case approvingly cited research from radical feminist Barbara Ehrenrich and coughed up the gem of a statement, “[W]e believe a sex-blind reasonable person tend to be male-biased and tends to systemically ignore the experiences of women. “ The practical effect is that women – who are far more sensitive and likely to be offended – are the yardstick by which this court wants to judge advances, actions and situations.
While the Supreme Court did not endorse this view, and this point is unclear legally at this juncture, but the Court suggests they support an objective person standard, as opposed to an aggrieved woman standard. Given the two women Obama tossed onto the Court, I would strongly suspect they would endorse the Brady
approach. The nomination of Kagan was a good move by Obama because she had no case law to analyze; Sotomayor is just a garden-variety feminist who literally is a complete, predictable bore.
In any event, this area of law is a feminist trainwreck. The text I consulted writing this repeatedly emphasizes that sexual harassment isn’t about sex, it’s about power and exclusion. While maybe some sadistic fuck may do it for that reason, usually it is about some thirsty-ass simp with no game stepping to a woman, and the woman is worried because he a huge turn-off and may be a reflection of her true sexual market value.
As I said out the gate, some of these situations are fucked up and the woman deserves a day in court. However, many of the women – and some men – are just over-sensitive plaintiffs. When I was reading the book Emotional Vampires, the author pointed out that people with Histrionic Personality Disorder are far more likely to file these sorts of suits. I didn’t find any stats about the issue, but I wonder how many women are serial lawsuit-filers? Would be an interesting study, one I think feminists would hate.
Extreme cases make bad law, period – and that what the jurisprudential development of SH law is. Bad law. The practical effect of all this nonsense is that women are given an upper hand in the workplace. Several cases I reviewed repeatedly stated “we by no means are privileging women over men in our decision.” Really – you just come out and say it?
I am going to write a review of the cases I read and discuss what legal defenses worked and effective ways to deal with a sexual harassment charge in court.