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View Full Version : Sexual Harassment - fuzzy boundries


trumptman
09-09-2007, 09:44 AM
MSNBC (http://allday.msnbc.msn.com/archive/2007/09/07/348617.aspx)

Wikipedia - Sexual Harassment (http://en.wikipedia.org/wiki/Sexual_harassment)

Sexualized environments (aka environmental harassment)

Sexualized environments are environments where obscenities, sexual joking, sexually explicit graffiti, viewing Internet pornography, sexually degrading posters and objects, etc., are common. None of these behaviors or objects may necessarily be directed at anyone in particular. However, they can create an offensive environment, and one that is consistent with “hostile environment sexual harassment." For example, in the case of Morse v. Future Reality Ltd. in the United Kingdom(1996), the female complainant was awarded compensation after her superiors ignored her complaint that her office mates spent much time studying sexually explicit images downloaded from the Internet, and creating a “general atmosphere of obscenity” in the office. EOC: Sexual Harassment: case decisions Sexualized environments have also been shown to create atmospheres that encourage more serious and direct sexual harassment. For example, when obscenities are common in the workplace, women are 3 times more likely to be treated as sex objects, and be directly sexually harassed than in environments where profanity is not tolerated. And when sexual joking is common, sexual harassment is 3 to 7 times more likely. (Boland, 2002)

This is an example of a type of strange double standard that I would like to bring up and discuss here that shows basically how no matter what, certain parties are bound to lose in the area of sexual harassment.

The video, when you watch it blurs at the inappropriate time but to put it bluntly, if the woman wasn't crossing her legs while sitting, you would have no choice but to see her underwear.

At schools we get into this with camisole tops, and out in public I'm sure we've all encountered the low cut jeans with the g-string riding out the back.

Now here is where the confusion and double standard comes to play. We are told as a society it is wrong to judge, limit or tell women they cannot wear clothing such as this. The woman in this video clearly has a lawyer at the ready to likely "settle" for something from Southwest Airlines.

Is it never possible for a woman to create a sexualized environment that is inappropriate with her clothing, and that the rest of us, who don't desire to be subjected to it, have a right to limit?

To me the best way to illustrate the double standard is to show what I, as a man, would be subject to as an employee if I simply posted a picture, poster or sent an email of any female in the same clothing in my work environment/cubicle. (Assume an office environment because clearly someone would go ballistic in a school)

In other words, if I took a picture of this girl sitting with her legs, not sprawled, and simply uncrossed and her underwear showing for the world to see, and had it posted in my office, sent it via an email, used it as the butt of a sexual joke, etc. I have no doubt it would be construed as creating a hostile and sexualized work environment. Why is the woman sitting there in the exact same clothes not considered the same thing ?

I say this as someone who, regardless of what you may believe or have been socialized to believe, does not have some ridiculous urge every 60 seconds, does not think of women in only one capacity nor do I desire to see them presented as such even when it is their own choice. It is entirely possible to be a man and not desire a sexualized work environment.

Thoughts?

Nick

trumptman
09-09-2007, 12:19 PM
After reading the elements of the claim and the defenses available, are you still so sure that your conduct would constitute harassment? And for the second example of the woman working in a short skirt, that probably doesn't do it either (without more facts).



Agreed.

Well, while I've not specifically tried out the measures to see if I would be reprimanded, I have been told that theses actions are harassing in various district-wide trainings we receive each year related to sexual harassment and mandated child abuse reporting.

I've also had my father-in-law be "retired" due to an email that was claimed to be sent department-wide instead of to the person he intended. A woman took offense, filed a sexual harassment claim and he was "retired" at 71. He isn't tech savvy enough to know whether what he sent was sent to all by him, or forwarded by others, etc.

I've never encountered a female who was reprimanded for provocative dress that creates a sexualized workplace. The claim, much like how feminist critique is often labeled as misogyny, is turned into how the man has a problem with his sexual impulses and desires, and not the woman with her attire.

If you can call up any case history where such a suit occurred, regardless of the decision, it would make some interesting reading.

Thanks for sharing the legal background on this, but remember you are still a person too Shawn. We don't mind knowing your thoughts and opinions on the matter.

Nick

trumptman
09-10-2007, 10:11 AM
Okay I read that example again and missed the part about taking a picture of her, posting it for all to see, and making sexual jokes about it. That's treading on dangerous territory there, but regardless of whether it's actionable under Title VII you have to admit that there are better ways to go about the problem. If the woman is simply violating the dress code, then instruct her to wear something more work-appropriate.



Under Title VII?

Dunno. It would depend on what the facts of the case are.

I think you still missed what I was getting at. I wasn't talking about literally attempting to deal with the attire of someone in this manner. I was simply noting that putting up posters of cracking jokes about someone dressed in a similar manner would likely be seen as sexualizing the workplace.

Example: Say I had a poster of the girl from that video on my cubicle wall. When I asked about it, I inform other people how much I like the poster because the girl has "hot legs." Other women, women note dressed at all like the woman in the poster, could file a harassment claim saying that the poster created a sexualized environment.

Now the second point is that perhaps not the exact girl from the video, but another woman could arrive to the job site in that exact same clothing. She could be wearing the skirt (or lack thereof) and while we may consider it unprofessional, I don't think I've read of an instance where anyone can claim she has created a sexualized environment and is thus, harassing other people who don't want to see women objectified, or have such blatant sexuality on display at their place of work.

Nick

trumptman
09-11-2007, 09:08 AM
Maybe, but "sexualizing the workplace" isn't the standard for proving hostile work environment sexual discrimination, is it?

I suppose it would depend on what your definition of "hostile" is which of course we don't find out until we get to court. Since employers don't care to go to court, they simply suppress the speech.

They could, but they'd easily lose.

Remember the standard + what plaintiffs have to do before filing a complaint...

I am remembering the standard. I'm not sure what the + plaintiffs part means. Do you mean file a complaint?

Anyway the real problem is that severe and pervasive are pretty vague and left up to clarification by the judge or court which can be a crap shoot. This can cause dismissal without going to court, or to prevent or forestall the possibility of going to court. It can lead to excessive workplace censoring of speech and email. Lastly as you know, ehem, your favorite area, one item can be used to corroborate another and thus establish, at least in the view of the plaintiff, intent. So perhaps defendant wasn't ogling plaintiff in the lunchroom, but plaintiff felt as if it was ogling, and since defendant will ogle a poster, clearly he or she will ogle her.

Because that's not enough under the standard.

Attire certainly goes towards the main issue of whether an employer created or allowed a hostile work environment, but I can't think of a situation where clothing alone is dispositive on the issue.

I've not read where the clothing of the woman has ever been used to establish, either in isolation but pervasively, or as part of corroborating as a pattern, a woman as a harasser. I said I was open to reading such a case because I don't think they have occurred. I have however read where a poster, email of pictures, etc. have been used to establish a harassment claim. It can become pervasive and severe if say, everyone sees it, comments on it, and does nothing about it even if it is just one instance of one poster.

Nick

Edit: Score! (http://www.law.ucla.edu/volokh/harass/breadth.htm#VAGUE)