By Lawrence P. Schaefer |
We are thankfully in the “home stretch” of the most divisive, contentious and disturbing Presidential campaign in our history. The differences between the candidates are as stark as any choice the electorate has ever had to make in choosing a President. I write not to chime in on this choice, but to convey how the most inflammatory issues in the campaign relate very directly to issues which frequently arise and are being refined in workplace litigation. These issues involve sexual harassment, gender stereotyping and implicit bias, and the glass ceiling which still persists for women in the workplace and throughout our society. I plan to write separate blog posts before the election on each topic, relating these posts directly the controversies in the campaign.
I’ll first address sexual harassment. The federal, state and local laws on this topic continue to evolve, as the legal claim of sexual harassment has been recognized by our courts for less than forty years. Sexual harassment law that has developed in that time does not just protect women, but anyone from being subject to offensive words or actions of a sexual nature in the workplace. Two claims are recognized by our legal system: (1) “quid pro quo” harassment, usually involving conditioning employment or work privileges to acquiescing to sexual advances; and (2) “hostile environment” harassment, which can be established when words, images or conduct create a workplace environment which alters the terms and conditions of employment in a manner that a reasonable person would find objectionable. Both “prongs” of sexual harassment are actionable, can result in significant compensation to the victim(s), and mandated changes to workplace training, policies and procedures.
The recent video of Donald Trump’s comments about women before an “Access Hollywood” appearance, and the litany of women who are stepping forward conveying their own experiences with Mr. Trump which are unfortunately consistent with his comments about the leeway wealth and celebrity provides him to “grab” and kiss women, could be actionable as either quid-pro-quo or hostile environment harassment if this kind of conduct occurred in a workplace environment. Moreover, instances when any individual “grabs” a woman as Mr. Trump describes in this video, or kisses them without consent, would be actionable as a battery, a common law tort which has been recognized in modern civil jurisprudence for hundreds of years, whether this conduct occurs in the workplace or anywhere. Even unsuccessful or threatened attempts to engage in this kind of behavior would be actionable as an assault, with similar remedies.
If actual or threatened grabbing or kissing isn’t at issue, however, the kind of comments Mr. Trump has made could be cited in establishing a sexually hostile work environment in any workplace over which he had authority. This is particularly true when the conduct or statements at issue emanate from the leader or CEO in the workplace, or indeed any individual holding a senior management-level position. Courts have appropriately recognized that “when a CEO speaks, everyone in the organization listens.” Gender-biased or harassing statements or conduct from leaders at this level can have a profound evidentiary impact in litigating these claims, often establishing a hostile work environment even if these comments are infrequently made.
Anyone subject to these kinds of comments or conduct thankfully has recognized legal rights and ample remedies, but effectively enforcing these rights generally requires experienced legal counsel. Schaefer Halleen attorneys have deep experience in this area. While the focus on this issue in the current campaign is often painful to witness, it will hopefully raise awareness of these rights and empower individuals subject to this illegal conduct to seek counsel.
Future posts over the coming weeks will address gender stereotyping, implicit bias, and the persistent glass ceiling as reflected by issues raised in the current campaign.