Just finished meeting with a corporate client. Their legal counsel wanted some advice on a few cases, mostly boring but one harassment suit stood out since they had dismissed their internal complaint since the complainant had said it was non-sexual in nature, at least on its face, and yes the complainant was a woman.
I showed it to a colleague of mine and she said she was not surprised, that women are often not believed about abusive, demeaning but ultimately non-sexually motivated treatment.
We all understand the challenges women faced and continue to face in reporting sexual harassment, I did wonder if maybe the efforts to combat that have affected how people treat non-sexual misconduct. I recalled an actress on one of the Star Trek shows said that she got fed up of the harassment meeted out to her by a producer and apparently everyone lost interest in her protests once they learnt that the sexual element was missing.
A word about the title, its fairly imprecise, but I do want to have a discussion on this without seeming to unncessarily reduce the suffering of sexual harrasement victims.
This is an interesting topic, but I’d like some clarification. Are you talking about harassment that is gender-based but not sexual in content?
Is it possible for you to reveal (in a general way) what the complaint was and how it was female-based but not sexual in content?
For example, a guy dismisses his female colleague’s problem-solving idea with, “That’s a really stupid idea. Everyone knows girls can’t do science.”
Whereas, sexual harassment would be, “That’s a really stupid idea. Did those luscious boobs get in the way when you looked through that microscope?”
And just general harassment, which might be inflicted on anyone, could be, “That’s a really stupid idea. Did you get your degree from sending in all your cereal boxtops?”
I am curious about this aspect also. History is full of bosses being jerks, regardless of the gender of any parties. ISTM that we do not have the same depth of legislation in place, with books full of case law, covering general jerk-ish behavior in the workplace? Whereas, we have regulations underpinning sexual harassment claims?
The U.S. Equal Employment Opportunity Commission defines harassment as “unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history).” You can make a case for harassment even if it’s not of a sexual nature and whoever dismissed the internal complaint really dropped the ball on this one.
I think Hollywood is its own little world and it’s hard to extrapolate general trends by looking at what’s going on there. The majority of the harassment/bullying issues I deal with at work are of a non-sexual nature. But every work environment is different, my company is about 70% women so that might be one reason we don’t have many sexual harassment problems (that we’re aware of at least).
Actually, the above is an example of sexual harassment. It’s not sexual in nature, but making offensive comments about a gender in general counts as sexual harassment.
Being an asshole isn’t illegal. A lot of times an employee will make a complaint about harassment but it doesn’t meet the legal definition of harassment (see above). I have some managers in my area who are assholes but they aren’t assholes to anyone on the basis of them belonging to a protected class. They’re equal opportunity assholes. That isn’t to say these managers have never faced consequences for their behavior, it’s just that they weren’t technically harassing anyone. On the flip side, I’ve had employees make a complaint that their manager is bullying/harassing them but it turns out the manager is just asking them to do their job.
What is your example of sexual harassment that is non-sexual in nature?
@Odesio I’m guessing you are in HR? My hat is off to you. My late husband was in HR and fortunately he was the most even-tempered of men. I would not do well in that field!
This is one of those situations were I can either admit to making an error or double down on my mistake. Harassment based on sex isn’t the same as sexual harassment. My bad.
Like with many things, I think it depends largely on where you work. For the most part, management and employees behave like adults at my company. While I’ve heard some ridiculous statements from employees, “How was I supposed to know I had to come into work every day on time?”, for the most part they’re a good bunch.
If some is a jerk to woman more than men, it is actionable, even without a sexual component:
The Supreme Court has held that “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” Id. Moreover, plaintiffs do not need to prove that Harvey had a specific intent to discriminate against women or to target them “as women,” as the district court put it, whether sexually or otherwise. “Title VII is not a fault-based tort scheme. Title VII is aimed at the consequences or effects of an employment practice and not at the . . . motivation of co-workers or employers.” Ellison v. Brady,924 F.2d 872, 880 (9th Cir. 1991) (internal quotations omitted). There we held that conduct may be “unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment.” Id.
The district court erred in holding that the “because of . . . sex” element of the action requires that the behavior be either “of a sexual nature” or motivated by “sexual animus.” The district court recognized that plaintiffs “presented substantial evidence that Harvey is rude, overbearing, obnoxious, loud, vulgar, and generally unpleasant” but nonetheless held that because “there is no evidence that any of the exchanges between Harvey and Plaintiffs were motivated by lust” or by “sexual animus toward women as women,” his conduct was not discriminatory.
In applying this sexual animus test, the district court seemed to find it significant that Harvey did not seek “to drive [women] out of the organization so that their positions could be filled by men.” He noted that the workplace was a teacher’s union, in which women were traditionally not a minority. However, a pattern of abuse in the workplace directed at women, whether or not it is motivated by “lust” or by a desire to drive women out of the organization, can violate Title VII. Indeed, this case illustrates an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men. There is no logical reason why such a motive is any less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.
2. Applying the differential effects standard
Whatever the motive, the ultimate question under Oncale is whether Harvey’s behavior affected women more adversely than it affected men. Plaintiffs allege that Harvey’s treatment of women employees was “more abusive” and that he treated “his female subordinates worse” by “subjecting the women to more severe, more frequent, more physically threatening abuse.” Defendants deny this allegation. These charges and their denials make a triable question of fact.
"Sexual harassment’ can include non-sexual behavior , such as making offensive but non-sexual comments about women in general to a woman - for example, that women can’t drive or can’t be trusted or can’t supervise men and so on.
Sexual harassment is seen as a form of sex discrimination - typically, a person who is making say, unwanted sexual advances is making those advances based on the victim’s sex and is therefore discriminating against the person based on sex. For example, a person who only makes unwanted sexual advances toward women is discriminating against women. And what that means is that a person who treats women and men in the same horrible way is not guilty of sexual discrimination ( of which sexual harassment is only a subset) - there have been court decisions which held
Title VII does not cover the “equal opportunity” or “bisexual” harasser, then, because such a person is not discriminating on the basis of sex. He is not treating one sex better (or worse) than the other; he is treating both sexes the same (albeit badly)
At an EEOC conference they talked about a case involving a male employee who was being harassed by his female supervisor. The employee had a penchant for wearing a lot of jewelry and the supervisor thought this was odd frequently making sarcastic comments about what he was wearing, referred to him as her “office boy,” and told him if he wanted a promotion he needed to dress like a normal man. The harassment wasn’t of a sexual nature, but the unwanted behavior was based on the sex of the employee and created an atmosphere that was hostile. (Price Waterhouse v. Hopkins wasn’t a harassment case, but it helped establish that gender stereotyping could lead to some Title VII violations.)
Ok, that helps. So, if the behavior/comments are gender-related, then it’s sexual harassment, even if there is no overt sexual content, propositioning, flirting, flashing, or other things related to body parts or intimate physical contact.
Yikes, makes me glad I’m retired. These waters are deep and full of hidden rocks.
There could also be situations where an employer mistreats both women and men based on some other protected class (such as race or religion), but that when women file complaints about that misconduct, they’re not taken as seriously as similar complaints by men.
I see your point; but if the person in question only does this to people of certain genders and doesn’t do it to those of other genders, then it seems to me at least that it would still be harassment based on the gender, even if the harasser is careful never to say anything specifically gender-related.
This topic is almost too complicated, nuanced, and subtle to discuss.
I have gleaned from this thread that any negative stuff related to someone’s gender* is considered “sexual” harassment, even if there is no overt “sexual” (i.e, related to bedroom activities, sexual organs, etc.) content.
*I don’t even want to get into original biological gender, LGBT, asexual identification, pronoun use, etc. You have to be a very brave soul indeed to get into the HR field today.
Remember when the Nobel laureate Brit said he didn’t want women in his lab because 'they’re distractingly hot, they fall in love with you and when you criticize them, they cry?"
Prompting an avalanche of comedic tweets by female scientists posing in their sexy work clothes (“who can resist a woman with her own dedicated air supply?”)
