Sex Harassment and Reasonable People

TIM BAKER

March 13, 1993|By TIM BAKER

"You've done a great job on this deal,'' he told her. ''Thank you,'' she said. ''The client is very pleased with the result, and so am I.'' She smiled. He handed her the file. She rose to leave his office. ''And by the way,'' he added, ''you look lovely in that sweater.'' ''Thank you.''

He is 40. His wife died of cancer and left him with two small children. A year ago he started dating again. But no one seemed right. Then the firm assigned this woman to work with him. She is 30. He's fallen in love with her. But he hasn't said a word. For months he's kept their relationship strictly professional.

Now, however, he wants to ask her out. His voice wavers. He hasn't felt this nervous since high school. ''Oh, uh, I was wondering if, uh, maybe you'd like to go out to dinner with me Saturday night?''

Scenario No. 1: ''Oh, I'd love to.'' On their second date he kisses her goodnight. They'll be married in June.

Scenario No. 2: She sues him for sex harassment.

She'll lose -- I think. She ought to lose anyway. Shouldn't she? He hasn't sexually harassed her. Or has he?

The law of sex harassment is ''rapidly expanding,'' as one federal appeals court has noted. Here the man's defense isn't clear-cut. You see, he's the woman's supervisor. She knows his evaluation of her will affect her advancement in the firm. But suppose she doesn't want to go out with him?

This guy probably doesn't realize it, but he's created an unpleasant dilemma for the woman. And if he doesn't watch it, he's going to create a serious legal problem for himself and his firm.

The courts will apply the Equal Employment Opportunity Commission's definition of sex harassment in the workplace. It's ''any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.'' Such conduct is illegal in any of the following circumstances:

* When ''submission to such conduct is made either explicitly or implicitly a term or condition of . . . employment.''

* When ''submission to or rejection of such conduct . . . is used as a basis for employment decisions . . . ''

* When ''such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.''

In this case the man will claim that his conduct wasn't offensive. He merely asked the woman for a date.He's probably OK. But what about the sweater? Did you wince when he mentioned it?

His comment is probably not enough to sink him. But what if he's made other comments about her clothing? ''I'll bet you look great in short skirts.''

This guy had better make an emergency visit to the legal department.

Or suppose he's so lovesick he can't take ''no'' for an answer? He begs her to go out with him. Writes her a long letter. It will be introduced into evidence against him. The judge will frown. A court could award her up to $300,000 in compensatory and punitive damages.

Wait a minute. Let's be reasonable about this.

The law will be reasonable, all right. Here's how more and more courts determine whether someone's conduct has created an ''offensive working environment.'' They will adopt the perspective of a reasonable member of the victim's gender. So in this case they'll use ''a reasonable woman'' test.

Would this man's conduct offend ''a reasonable woman?'' If it does, the courts can require that he be reprimanded, transferred or fired.

But suppose ''a reasonable man'' would not consider this guy's conduct offensive and wouldn't realize that it might bother a reasonable woman?

Too bad.

Why not use a gender-neutral ''reasonable person'' test? Because, a federal appeals court recently explained, it tends to be ''male-biased'' and ''systematically ignores the experiences of women.''

A ''reasonable person'' is male- biased?! The court's tacit premise here must be that ''reasonable man'' is an oxymoron. That all men are insensitive brutes. That we all condone the mistreatment of women. That we haven't listened at all. That we haven't learned a thing.

The same court also ruled that the ''reasonable woman'' test creates an escalating standard. ''Conduct considered harmless by many today may be considered discriminatory in the future. . . . As the views of reasonable women change, so too does the [legal] standard of acceptable behavior.'' For men!

Most of the court cases so far involve outrages and indignities that a reasonable cement block ought to know are offensive -- male supervisors extorting sexual favors from female employees, men making repeated lewd comments, pinching, patting, leering. Federal sex-harassment laws intend to banish this kind of conduct from the workplace. Good riddance.

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