The Transformation of Sexual-Harassment Law Will Be Double-Faced

Earlier this month, when a majority of Senate Democrats demanded Al Franken’s resignation after multiple allegations of unwanted kissing and groping, Bernie
Sanders called for a “cultural revolution” to combat sexual harassment. The reckoning would affect “not only
high-profile men,” Sanders said, but also harassers “in restaurants, in
offices all over this country where you have bosses that are not famous.”

Putting aside the unfortunate evocation of the Chinese Cultural
Revolution, Sanders’s declaration posed a useful question: How will the
current avalanche of sexual-harassment allegations toppling prominent
men in media and government roll down to more mundane workplaces? As
employers and employees across the country try to apply lessons from #MeToo into quotidian employment contexts, legal norms that govern workplace
sexual harassment may also be poised to undergo epochal transformations.

For more than three decades, we have understood sexual harassment to be
a form of sex discrimination prohibited under Title VII,
the federal anti-discrimination law that governs most employers in this
country. Under that law, an employee who is sexually harassed by a
colleague may sue the employer and receive damages. For this purpose,
the Supreme Court defines sexual harassment as unwelcome physical or
verbal conduct of a sexual nature that may take one of two forms. The
first is “quid pro quo,” in which submission to the conduct is made a
condition of, say, a promotion or continued employment. The second,
which is more common, is “hostile environment,” in which the conduct is
so “severe or pervasive” that a reasonable person would experience it as
creating an abusive workplace.

The legal definition of sexual harassment is more stringent than its use
in ordinary parlance and public discourse. The requirement that the
harassing conduct be “severe or pervasive” to be legally actionable as a
hostile environment has meant, for example, that one incident of groping
or commenting about someone’s breasts would not necessarily be deemed unlawful sexual harassment if an employer were sued over it. But what strikes a reasonable person
as “severe or pervasive” has been evolving, particularly in the seismic
cultural breakthroughs of #MeToo. It also makes sense for employers to
use broader definitions of sexual harassment that enable them to address
workplace misconduct before it becomes severe enough to constitute a
hostile environment for legal purposes.

Amid the abject public apologies and semi-confessions by prominent men,
some of the accused have chafed at the script and contested the
allegations against them. Among them is Harold Ford, Jr.,
the former congressman who was fired from Morgan Stanley, this month,
after allegations of sexual misconduct; he vowed to sue his employer for
improper termination. Most employees are what is known as “at will,”
meaning that they may legally be fired at any time for any reason, or
for no reason at all. But under Title VII even at-will employees cannot
be fired for a discriminatory reason, including their gender. Along with
the expected uptick in firings for sexual harassment, we could see an
increase in wrongful-termination claims by men arguing that their firing
was discriminatory against males, in violation of Title VII, even if the
decision was driven by the desire to eradicate discrimination against
females.

The recent trajectory of Title IX, the federal law that prohibits
schools from discriminating on the basis of sex, may be instructive,
especially because courts’ and agencies’ interpretation of Title IX has
drawn heavily from Title VII case law. In this decade, Title IX has
stood in the public mind mainly as protecting students from sexual
assault and harassment. But our courts have also heard scores of cases
filed by male students against colleges and universities that expelled
them for sexual misconduct, and therefore Title IX has also come to
stand for the idea that schools must give accused students a fair
process. This evolution in Title IX’s meaning came about because courts
perceived many of the expulsion procedures as unfair. Courts chose to
read Title IX’s ban on sex discrimination to demand fair treatment of
the accused, despite the considerable leeway that schools were supposed
to have over student discipline. In a 2016 case, a male student
disciplined for sexual misconduct sued Columbia University under Title
IX, alleging that the investigative process was unfair; the Second
Circuit Court of Appeals held that an institution’s motivation “to favor
the accusing female over the accused male,” in order to shield itself
from lawsuits or criticism for not protecting women from sexual assault,
could be evidence in itself of unlawful sex discrimination against
males.

A few short years ago, it seemed implausible that the meaning of Title
IX would shape-shift to allow successful sex-discrimination claims by
men accused of rape. But, as employers strive to assimilate the logic of
#MeToo into how they deal with allegations of workplace sexual
harassment, a perception that employers might favor accusers over the
accused may raise similar questions about sex discrimination against
males. If the campus cases are at all predictive, we can expect to see stories of employees being
expelled from their workplace within hours of the accusation; not told
the nature of what is alleged, what policy the conduct violates, or who
is alleging it; and refused the time or opportunity to respond to
allegations, with the employer making little attempt to gather the
facts, or deciding with no regard for the weight of the evidence. And,
echoing their successful student counterparts over the past several years, the men will claim in court that the pressure to implement a
“zero tolerance” policy against harassment led employers to act without
sufficient investigation or proper process, motivated by the employees’
male gender.

The contours of this kind of discrimination argument were anticipated in
past Title VII cases. For example, in Sassaman v. Gamache, a 2009 case
in the Second Circuit, a male employee was pressured to resign because
of allegations of sexual harassment. He claimed that the employer failed
to properly investigate the charge against him, and that his supervisor
remarked on men’s propensity to sexually harass women. The court held
that these alleged facts were sufficient to permit a jury to infer
discriminatory intent based on sex stereotyping. Although the court did
not hold that insufficient investigation alone would be enough, it ruled
that, along with evidence that the employer credited the alleged
victim’s story over the accused’s based on the idea that men tend to
harass women, the insufficient investigation did support an inference of
sex discrimination prohibited by Title VII. This may mean that an
employer that, for example, professes generally to believe women who
report sexual harassment over men accused of it may be setting itself up
for Title VII liability.

The coming transformation of sexual-harassment law will be double-faced.
We will see alleged victims’ stories of being harassed at work taken
more seriously, and our legal concepts of sexual harassment will become
broader in response to the extraordinary moment we are living through.
At the same time, lawsuits brought by those fired for sexual harassment
will focus attention on whether the processes that employers use to
investigate allegations are fair.

Among the imperatives of #MeToo is that employers, and, indeed, all
institutions, must take care to implement orderly processes in which
reports of harassment are fairly and impartially investigated, and yield
results that inspire confidence—to the benefit of victims as well as the
accused.

Leave a Reply

Your email address will not be published. Required fields are marked *