An employee makes lewd jokes, a supervisor talks about the date he had last night, a recently fired woman says her former boss used to leer at her.
Which one is sexual harassment?
It all depends. Today’s workplace is largely rid of overt touching and threats, but more nuanced behavior, such as a tone of voice, an e-mail or a tasteless joke, could be construed as harassment. Or it could be a harmless remark that is taken the wrong way.
While sexual harassment claims have been on the decline , 3,571 complaints were filed in California during fiscal year 2003-04, down from 4,231 the year earlier , the numbers remain higher than just after the 1991 Senate confirmation hearings of U.S. Supreme Court Justice Clarence Thomas, when he was accused of sexually harassing law professor Anita Hill.
In California, a steady influx of sexual harassment claims has prompted legislative action. Starting on Jan. 1, businesses with 50 or more employees must provide their supervisors with two hours of sexual harassment training every two years. In order to comply with the new law, California businesses have been hiring lawyers and consultants who specialize in sexual harassment training.
“Traditionally, people thought of sexual harassment as the boss chasing the secretary around the desk, that type of sexual advance,” said former Fresno-area Assemblywoman Sarah Reyes, who authored the bill that became law. “What we’re now seeing is that sexual harassers are changing their motive of how to harass people. They may not go and rub up on someone but they’re using jokes, statements, to still do the harassment and get away with it.”
Drawing The Line
One reason why sexual harassment claims have not declined further is more women are willing to file a claim than they were a decade ago.
“We have been consistently getting sexual harassment complaints,” said Santos Albarran, outreach manager at the Los Angeles office of the federal Equal Employment Opportunity Commission. “A lot of people forget they’re at work, they’re working for a company, and there are policies they have to adhere to, laws that prevent that type of behavior. Some people don’t know where to draw the line.”
But the claims have changed. Few cases involve groping, overt sexual comments or inappropriate touching. In most cases, the harassment centers on routine office banter that may not seem offensive on the surface. Inappropriate jokes heard over the cubicle, discreet comments in the hallway or discussions about each other’s sex lives often escalate into sexual harassment claims.
“Now, it’s less tacky behavior and more misunderstandings,” said Monica Ballard, president of Santa Monica-based Parallax Education, which trains employers on how to prevent sexual harassment.
The claims become more complicated with the increased use of e-mails and the Internet that allow employees to send out jokes or keep pornography on their computers.
Cultural differences also affect the offense of a comment , including pop culture.
“Our culture has become more sexualized,” said Diane Kimberlin, a partner at Littler Mendelson. “When you cross the threshold of the workplace, you’re supposed to be an asexual being. But people aren’t that way.”
To that point, the California Supreme Court is expected to hear a case in the coming months in which a former assistant on the show “Friends” sued Warner Bros. Television Productions Inc. claiming she was subjected to the television writers’ personal sex stories. The writers maintain that they needed to talk about their personal experiences to craft jokes for the sexually oriented show.
Many claims turn out to lack merit. Almost half of all sexual harassment claims are not pursued by the EEOC because they have “no reasonable cause.” A decade ago, 31 percent fell in that category. Albarran said those numbers prove the agency has gotten better at recognizing early on whether a case is worth investigating. But they also indicate that many people make false claims.
A rising type of claim is one in which someone accuses another of sexual harassment after their relationship has soured. “There’s this bantering back and forth and it’s perfectly wanted and welcome and then something changes about the work relationship, or somebody gets out of bed on the wrong side, and now all of a sudden it’s offensive,” Ballard said.
In many cases, sexual harassment claims show up in wrongful termination lawsuits filed by a fired employee. “It’s a very loaded term , sexual harassment,” said Michael Shaw, assistant state director for the California chapter of the National Federation of Independent Business. “When it’s attached to anything, it automatically creates an impression about the individual involved or the business involved and it puts people on the defensive. That certainly is an enticement to settle.”
Indeed, few cases end up in court because harassment frequently comes down to one person’s word against another’s.
In a recent case filed by the EEOC, a former female employee of News Corp.’s Fox News Network alleges that she and other female employees were subjected to vulgar descriptions of women’s body parts and demeaning comments by a vice president at the company. An attorney for the company called it a “minor incident of swearing.”
“That’s what makes these cases so hard to prove,” said Nancy Bornn, a plaintiff’s lawyer at Bornn & Surls. “It’s not as blatant as it used to be.”
If no one complains about an alleged instance of sexual harassment, a supervisor often assumes he or she doesn’t have to say anything. Reyes said that in many cases, only the human resources department receives instruction on what to do with sexual harassment complaints.
That’s why the new law specifies the importance of training supervisors. Reyes said companies often fail to train the right people.
“When people say they’re doing training, who have they been training?” she said. “Most companies will only train upper management and will only train people in the office, not the people on the line. Those are the people with the contact, who are on the floor all day long and can see these problems.”
Ballard said most of her clients already provide more sexual harassment training to their supervisors than what the law requires. But not all small businesses have training in place. Shaw said some of the owners of companies with 50 to 75 employees take a risk that sexual harassment would never occur in their workplace.
Amanda Bronstad writes for the
Los Angeles Business Journal.