exual harassment on the job can have a number of serious consequences, both for the person facing harassment and for coworkers who experience it secondhand and become demoralized or intimidated at work.
Sometimes the connection between sexual harassment and the injuries it causes is simple and direct: A worker is fired for refusing to go along with the sexual demands of a coworker or supervisor. Usually the company (or individual manager) uses some other pretext for the firing, but the reasons are often quite transparent.
Sometimes the firing technically occurs because of some other event, but it is still clearly related to sexual harassment. For example, if a company downgrades an employee’s job and assignments because of a harassment incident and then fires him or her for complaining about the demotion, that injury is legally caused by sexual harassment.
If an employee is temporarily unable to work as a result of the harassment and management uses that as an excuse to fire him or her, that is also considered legally related to the harassment.
While working as a writers’ assistant for the popular television sitcom “Friends,” Amaani Lyle says she got a close-up of the show’s writers in action: making sex-related jokes, discussing blow job story lines, discussing the actresses’ sexuality, writing sex-related words on scripts, and pantomiming masturbation. After four months, Lyle was fired for her poor typing skills and for her failure to accurately record important jokes and dialogue in her notes.
She sued Warner Bros. Television Production and three individual comedy writers under California’s Fair Employment and Housing Act for harassment based on race and gender.
The case itself had impeccable timing—first wending its way through the courts during the season finale of the popular “Friends,” a show about ageless 20/30-somethings coming of age. And it coincided with initial tabloid reports of actor Brad Pitt canoodling with Angelina Jolie—a woman not his wife. (His wife, of course, was Jennifer Aniston, one of the stars on “Friends.”)
And on the legal front, it attracted briefs from writers, employer groups, and unions, pitting the television industry and free speech advocates against some women’s rights advocates.
The Los Angeles County Superior Court initially dismissed Lyle’s complaint as frivolous. But the appellate court held that the case presented triable issues of fact regarding sexual harassment. It also noted that the court could consider the nature of the defendants’ work in determining if their conduct amounted to true harassment—thus fostering The Creative Necessity Defense.
The California Supreme Court agreed, reasoning that while sexual language may constitute harassment, the “Friends” writers’ language did not reach that level, as it was not aimed directly at Lyle or at other women because of their gender. In reaching its unanimous decision, the court famously noted: “The FEHA is ‘not a civility code’ and is not designed to rid the workplace of vulgarity,” nor does it “outlaw sexually coarse and vulgar language that merely offends.” (Lyle v. Warner Brothers Television Production, 38 Cal. 4th 264 (2006).) And the court reiterated that a harassing remark must be “objectively and subjectively offensive, one that a reasonable person would find hostile or abusive.”
An employee who resists sexual advances or objects to obscene humor in the office may suffer work-related consequences including:
- being denied a promotion
- being demoted, or
- suffering various economic losses.
That employee may also suffer harm to his or her standing within the company, which could jeopardize future pay increases and opportunities for promotion.
A loss of wages usually entails a loss of other job benefits as well, such as pension contributions, medical benefits, overtime pay, bonuses, sick pay, shift differential pay, vacation pay, and participation in any company profit-sharing plan.
Sometimes. a company responds to an employee’s complaint of sexual harassment by transferring that person somewhere else in the company and leaving the harasser unpunished. This forced reassignment is another form of job-connected injury, and it may be compounded if it results in a loss of pay or benefits or reduced opportunities for advancement.
Sometimes the sexual harassment is so severe that the employee quits. If the situation was intolerable and the employee was justified in quitting, sexual harassment caused him or her to be constructively discharged—that is, forced to leave. While often difficult to prove, courts treat this as an illegal firing.
EXAMPLE: A woman who worked for a film editing company received frequent threats as well as blatant sexual solicitations from the owner of the company, which culminated when he posed the ultimatum: “F*&! me, or you’re fired.” The owner told the woman he was leaving for a brief business trip, but his parting words were, “I’ll see you when I get back.” A federal court hearing the case ruled that the sexual ultimatum, combined with the explicit threat, made her working conditions so intolerable that a reasonable person in her position would be compelled to resign—the very definition of a constructive discharge. (Stockett v. Tolin, 791 F. Supp. 1536 (S.D. Fla. 1992).)
Employees are frequently fired or penalized for reporting sexual harassment or otherwise trying to stop it. Such workplace reprimands are called retaliation. In such cases, the injury is legally considered to be a direct result of the sexual harassment.
In addition to job-connected losses, a sexually harassed worker often suffers serious and costly personal injuries ranging from stress-related illnesses to serious physical and emotional problems.
Sexual harassment also causes a great many other types of physical, mental, and emotional injuries. Some of these injuries are stress related, but others are caused by physical pranks or violent acts directed at the harassed worker.
A few years after sexual harassment against women came out of workplace closets across America, a new whisper emerged: “I’ve been harassed, too. And I’m a man.” At first, many people—particularly women—took a dim view of this development. Sexual harassment on the job, after all, had been diagnosed as a social ill stemming from an abuse of power, and men had long dominated the powerful positions in most workplaces. It was harder to sympathize with the harassed man than to see him as the poor lunk who failed to duck as the pendulum was swinging.
The popular press and the silver screen seemed titillated by the thought of the role reversal. Michael Crichton was inspired to pen yet another novel on the theme, Disclosure. Still, when the book surfaced inevitably in a film version, even the threat of a besuited Demi Moore pinning a hapless male underling against her mahogany desk seemed less scary than, say, being passed over for a promotion.
The reality is, of course, that abusive behavior in the workplace is not limited by stereotypes of bad boys and good girls. Sexual harassment on the job is not about sex; it’s about unwanted, abusive behavior—usually repeated and often in the face of requests to cut it out. Women as well as men dish out the discriminatory behavior that is sexual harassment, and they’ll do it to harass men they want to intimidate, humiliate, or drive out of their workplaces.
Some believe it’s worse than we fear: that nearly as many men as women are harassed on the job, but few of them are willing or able to speak up about it—as if that extra chromosome reared up and got caught in their collective throats.
Recent statistics show a steady increase in the percent of claims that men have filed with the EEOC—up from 7.5% in 1991 to more than 16% in 2011.
The exciting development is that gender may not matter in the eyes of the law. Many judges who have considered sexual harassment issues recently—including the U.S. Supreme Court justices, who took on a blockbusting number of four such cases during the 1998 term—have edged toward making them gender neutral. For example, most have stopped taking up space in their decisions over whether incidents of alleged harassment should best be viewed from the eyes of a reasonable woman or a reasonable man.
For a growing number of courts these days, the vantage point is common sense, the guiding premise that most workers, men and women, simply want to come to work and do their jobs.