Huge court win for #MeToo

In Minarsky v. Susquehanna County, 2018 WL 3234243 (3d Cir. July 3, 2018), the Third Circuit reversed summary judgment for the employer because a jury could find that the sexual harassment victim was reasonable in not reporting the harassment for four years.  In a footnote that will be cited for years to come, the Court said:

This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. It has come to light, years later, that people in positions of power and celebrity have exploited their authority to make unwanted sexual advances. In many such instances, the harasser wielded control over the harassed individual’s employment or work environment. In nearly all of the instances, the victims asserted a plausible fear of serious adverse consequences had they spoken up at the time that the conduct occurred. While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable. That is, there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead, they anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims choose not to report the harassment.

Recent news articles report that studies have shown that not only is sex-based harassment in the workplace pervasive, but also the failure to report is widespread. Nearly one-third of American women have experienced unwanted sexual advances from male coworkers, and nearly a quarter of American women have experienced such advances from men who had influence over the conditions of their employment, according to an ABC News/Washington Post poll from October of 2017. Most all of the women who experienced harassment report that the male harassers faced no consequences. ABC News/Washington Post, Unwanted Sexual Advances: Not Just a Hollywood Story (Oct. 17, 2017), www.langerresearch.com/wp-content/uploads/…

Additionally, three out of four women who have been harassed fail to report it. A 2016 Equal Employment Opportunity Commission (EEOC) Select Task Force study found that approximately 75 percent of those who experienced harassment never reported it or filed a complaint, but instead would “avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior.” EEOC Select Task Force, Harassment in the Workplace, at v (June 2016), www.eeoc.gov/eeoc/task_force/harassment/upload/… Those employees who faced harassing behavior did not report this experience “because they fear[ed] disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.” Id.; see also Stefanie Johnson, et al., Why We Fail to Report Sexual Harassment, Harvard Business Review (Oct. 4, 2016), hbr.org/2016/10/why-we-fail-to-report-sexual-harassment (women do not report harassment because of retaliation fears, the bystander effect, and male-dominated work environments).

Forms of sexual harassment at work

Ken Cooper recently outlined what he called the “six levels” of sexual harassment. His summary is useful and worth walking through. But he omits an important feature of sexual harassment present in many, many cases: implicit or explicit threats of retaliation if the victim reports the harassment. Let’s take a look at Cooper’s six levels and then add what he left out.

Level 1 according to Cooper is “Aesthetic Appreciation.” This includes the seemingly non-aggressive compliment about a woman’s (or man’s) physical or sexual features. It’s a lifted eyebrow, wink, wolfish smile or a sexual joke. Individually, such comments merely sound rude. But, they can be offensive, too, particularly when they’re constant over time.

Level 2 is “Active Mental Groping.” “Mental Groping” is undressing someone with your eyes. It’s staring at certain body parts. It’s the more vicious, crude or insulting joke or innuendo. There’s been no physical contact yet, but it almost feels the same.

Level 3 is “Social Touching.” “Social Touching” is physical contact that carefully stays within the bounds of semi-acceptable behavior. It’s the unnecessary hand on the shoulder, on the small of the back or around the waist. It’s giving someone — usually a female lower on the corporate ladder — an unasked-for backrub or hug.

Level 4 is “Foreplay Harassment.” “Foreplay harassment” is where the touching starts to push the boundaries. The offender escalates the touching into more sensitive areas. The hand moves farther down the small of the back or is wrapped around the waist onto the stomach. A hand is draped over the shoulder. A woman is ushered around by the top of her arm, allowing the offender’s hand to brush up against her breast. This behavior also occurs when the offender stands closely behind someone who’s seated so she’s eye-to-zipper should she swivel around. It’s bar-level pickup lines said jokingly, but actually aimed at asking for sexual favors.

Level 5 is “Sexual Abuse.” “Sexual abuse” is touching of a sexual nature, such as pinching, grabbing or brushing up against sexual areas of the body.

Level 6 is “Ultimate Threat.” “Ultimate Threat” is not the right label; Cooper should call it “Ultimate Act.” “Ultimate Act” means a physical sexual assault, or the threat of assault unless there is compliance.

What Cooper leaves out are implicit or explicit threats of retaliation. All workplace sexual harassment is coercive, communicates expectations about compliance and the threat of consequences if the victim takes a stand. Sometimes the harasser is sufficiently powerful that he or she can make a phone call and end a career. Sometimes the harasser can take other actions to make his victim’s life miserable. Examples would be a bad performance review or changing her job duties. In this way, workplace sexual harassment is inherently extortionate.

We are Pittsburgh sexual harassment lawyers who can help people who have been sexually harassed at work. Call us at 412-258-2250 or email cal@lambertonlaw.com.

 

Sexual harassment ABC’s

Researchers identify at least three different forms of sexual harassment.  “Gender hostility” refers to derogatory comments or actions that invoke sex or gender, rather than explicit requests for sex.  Sexist hostility is specific to gender (for example, someone makes a joke about women in a meeting.  Sexual hostility has a sexual component (for example, someone asks about a co-worker’s sexual activities.  “Unwanted sexual attention” includes unwelcome attempts to initiate sexual or romantic relations (for example, someone repeatedly asks a co-worker out on dates, sends them sexual texts, or touches them in sexually inappropriate ways.  “Sexual coercion” involves many of the same behaviors as the unwanted sexual attention, but comes with a threat of consequences — such as being fired or refused a promotion — for not cooperating.