37 Trial Lawyer • Summer 2022 See Unwanted Conduct 38 vere” means “really bad” and “pervasive” means “really often,” the standard has continued to be less than clear, particularly as it is applied in practical workplace prevention efforts related to sexual harassment. See, e.g., Christian v. Umpqua Bank, 984 F.3d 801, 809-10 (9th Cir. 2020). The Supreme Court has explained, “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations and relationships.” Id. (quoting Oncale v. Sundownner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998)). But, if you, like so many people, are asking yourself when you are allowed to grope your coworkers and when it’s not allowed, that standard is less than helpful. In Oncale, a Supreme Court opinion published less than an month before Gloria Steinem’s “Clinton Question” op ed, Justice Scalia attempted to clarify the severity or pervasiveness constellation (aka the “when you get to grope” standard), saying, “A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field — even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.” Id. Free gropes So, in 1998, conservatives and liberals alike seemed to agree that free gropes were available under sexual harassment law for some elites, like politicians (if we like them) and football coaches, but potentially not for everyone, according to Scalia. It may feel like 1998 was a long time ago for football fans, but today a lot has changed and nothing has changed. The confusing severe or pervasive “free gropes” standard continues to exist in sexual harassment law, and celebrities continue to excuse groping. For example, in a 2017 interview with ABC news, Matt Damon described what he believed to be a “continuum” of harassment from bad harassment like “rape and child molestation or whatever” to maybe-okay harassment like the public groping Al Franken engaged in and “the Louis C.K. thing” (aka masturbating in front of people who worked for him).4 In Damon’s view, unlike rape and child molestation, legal consequences for groping and public masturbation merely encourage men to deny the behavior for fear their “life’s going to get ruined.” In reality, assault and battery have been illegal in common law for centuries.5 In the 1704 opinion Cole v. Turner, the chief justice of the King’s Bench explained, “if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery … but if any of them use violence against the other, to force his way in a rude inordinate manner, it will be battery.”6 Early
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