Liability, Not Labels
By Liza Mundy, Staff Writer, Washington Post, June 27, 1998

This is what's clear from yesterday's dual rulings on sexual harassment in the American workplace: Now, more than ever, bosses are going to be agonizing about whether their employees are behaving inappropriately. They'll be worrying about it, studying it, obsessing over it and in an increasing number of cases, paying for it. Still unclear, however, is what sexual harassment actually is.
Surely spanking constitutes sexual harassment?

Absolutely, said a U.S. District Court judge in 1991.

Yesterday's Supreme Court decisions established an important new touchstone for when companies can be held accountable for the actions of their supervisors. But the justices did little to address a vexing question: where is the line between casual workplace comment and actionable sexual offense?

Take spanking.

Surely spanking constitutes sexual harassment?

Absolutely, said a U.S. District Court judge in 1991. In this case, a professor in Kansas State University's College of Agriculture allegedly warned his secretary several times that "he felt like he needed to hit her on the buttocks." When the secretary quit, the professor periodically gave his new secretary the same warning. She failed to take him seriously until he slapped her on the rear "hard enough to make her flesh sting."

"Without provocation or reason, the plaintiff a dignified adult woman was spanked on her rear end!" the judge marveled, writing that the professor's behavior "robbed the plaintiff of her self-esteem at the workplace; she was demeaned, degraded and humiliated . . . this court finds the defendant's behavior wholly unacceptable and sufficiently severe to constitute actionable sexual harassment."

So then spanking is sexual harassment?

Absolutely not, said a different U.S. District Court judge in 1995, ruling in a similar case. Before this judge was the case of a shoe saleswoman who was subjected to a birthday spanking from her male supervisor. That, the judge found, does not qualify as sexual harassment.

Noting that Title 7, the federal civil rights law under which most sexual harassment cases are brought, "does not proscribe such boorish behavior," the judge acknowledged that the spanking, combined with other indignities such as a bear hug, a request for a birthday kiss, and remarks that her age (she was younger than the supervisor) would prevent them from dating, were "unprofessional, crude, and clearly not amusing." Still, the judge found, this behavior did not "raise the incident to the level of creating a hostile environment which is pervasive or severe enough to alter the terms, conditions or privilege of employment."

These two lower court rulings, while several years old, illustrate the confusion that continues to reign throughout much of America in the 12 years since the nation's highest court made clear that sexual harassment is a form of discrimination as illegal as any other, but did not define the offense precisely. This confusion not only in courtrooms but in the minds of most people was exacerbated recently when U.S. District Court Judge Susan Webber Wright ruled that even if President Clinton exposed himself to Paula Jones while he was governor of Arkansas, that extreme act alone was insufficient to constitute sexual harassment.

Many people assume that any stray remark around the water cooler is likely to result in a federal case. That idea is misguided, say Yolanda Wu, a staff attorney with the NOW Legal Defense and Education Fund, and continues to be misguided even with the new rulings.

"It's really a high burden to meet to illustrate sexual harassment," said Wu. "One or two incidents it's going to be very hard to show that it's sexual harassment." The Supreme court ruling "hasn't changed anything about what kinds of conduct constitute sexual harassment," said Eric Schnapper, a Seattle attorney and law professor who represented the plaintiffs in both of yesterday's cases. "All it's about is when the employer is going to be liable."

And so many American men will continue to worry about what, if anything, is permissible to say or do in a workplace anymore: You can't hang up a centerfold, presumably, but what about a Matisse nude? Telling someone they look nice may be okay, but what about saying someone looks hot?

The courts have typically recognized two categories of sexual harassment: the relatively clear-cut category of quid pro quo harassment, in which an employee is required to submit to sexual advances as a condition of employment, and the murkier category of "hostile environment," in which no sexual demands may be made but unwanted sexual comments and conduct are "pervasive or severe" enough to affect a person's job.

"Unless the conduct is quite severe," federal guidelines note, "a single incident or isolated incidents of offensive sexual conduct or remarks generally do not create an abusive environment."

So the average American can still get away with a considerable amount: the federal guidelines suggest that a one-time incident of offensive touching would be more likely to be considered sexual harassment than a one-time incident of offensive language, but even that principle is not absolute.

In fact, multiple incidents of offensive language don't necessarily make for sexual harassment: In 1995, the 7th U.S. Circuit Court of Appeals ruled that a boss who made at least eight obnoxious comments to his secretary grunting "um, um, um" when she wore a leather skirt and saying that his office wasn't hot "until you stepped your foot in here" had not sexually harassed her.

"It is no doubt distasteful to a sensitive woman to have such a silly man as one's boss," the court opined, but silliness doesn't equal sexual harassment. Nor are one-time incidents of offensive touching always considered sexual harassment. The federal guidelines describe a case in which a woman was touched and spoken to offensively while in a moving car; because she could not escape, she was deemed to be harassed, as was another woman who was drugged by her company's owner and raped while unconscious.

In numerous other cases, however, touching has fallen short of the definition: a district court ruled that an employer who allegedly called an employee into his office, locked the door and pressed himself against her so that she could feel his erect penis had not committed sexual harassment.

This sort of confusion is not likely to end any time soon; after all, as Wu of the NOW Legal Defense Fund points out, the Supreme Court, in yesterday's ruling, points out that Title VII is not a "civility code." Not even, sometimes, when it comes to spanking.

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