38 Trial Lawyer • Summer 2022 Unwanted Conduct Continued from p 37 common law in the United States, likewise, recognized battery under both civil and criminal law. In 1900, for example, it was criminal battery for a physician to ask a woman to undress and then ask her to sit on his lap, although she consented at the time, where she later learned it was not necessary to any treatment.7 Other traditional examples of battery included “rude touching” like seizing a breast pocket of a jacket, pushing a hat back and snatching a paper from someone’s hand. SeeW.D. Rollison, Torts: Assault, Battery, Notre Dame Law Review, Vol. 17, Issue 1 at 6 (1941) (note that although this article is titled “torts,” in many of the historical cases the author cites, the touching was charged as a crime). Lack of clarity As it has been for centuries, groping continues to be a crime in Oregon and arguably every other state in the nation.8 It stands to reason, then, that behavior historically seen as criminal, such as “rude touching,” would, as a matter of law, rise to the level of “severe” sexual harassment. Despite criminal prohibitions, though, it is not uncommon for there to continue to be disagreement as to whether free gropes are allowed. As a more practical matter, because of its lack of clarity, the “severe or pervasive” standard serves neither employers nor employees. This is true because if an employer is notified of an allegation of sexual harassment, they have an obligation to “prevent and correct promptly” (Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998)) or “take immediate and appropriate corrective action” (OAR 839-005-0030(5)) to stop the sexual harassment. The “severe or pervasive” standard, however, encourages employers (and the rest of us) to turn a blind eye to most of the sexually harassing behavior we see despite the known harmful effects on employees and workplaces. On the other hand, the duty to respond to sexual harassment becomes immediate once it is triggered, setting employers up for a surprise if their evaluation of “severe or pervasive” is different than someone else’s. For those who primarily handle car crash cases, this is like if the courts created a standard saying “fender benders” are not actionable, “but severe or pervasive” collisions are. Not only does it encourage drivers to be more reckless, it makes it difficult, as a lawyer, to determine what a community will view as a “real collision.” Many of you might say we already have this standard because of the challenges in proving soft tissue injuries, but you have to admit that a “severe or pervasive” liability standard is different and additional to a damages hurdle. The essential trouble with the severe or pervasive standard is it creates the legal fiction of a safe-zone where someone can engage in offensive, unwanted verbal or physical conduct directed at someone because of their gender, but it is not sexual harassment because it isn’t severe or pervasive enough. This leaves us in the space where people we like are never commiting sexual harassment because they are the ones who get the free grope passes. Instead, the law should define sexual harassment as any offensive, unwanted, verbal or physical conduct directed at someone because of their gender. Then, there is room to clarify that sexual harassment is only illegal if it rises to a certain level. The likely reason we do not do this is it would require us to acknowledge that as a society, we are choosing that it is okay for some sexual harassment to go on, especially if we like the sexual harasser.9 In reality, it is possible to generally like someone, think they’re good at their job and still acknowledge they engaged in harassment. Rape culture For most people who have experienced unlawful harassment, the first grope was not the first or last incident of harassment, but might be memorable in a way that eclipses the harassment leading up to it. Likewise, most people who are willing to grope someone without permission at work are demonstrating predatory behavior that does not stop at the one grope or one person. This makes the standard not only confusing, but also dangerous in encouraging employers to ignore problems thatk are likely more insidious than they first appear. I collected the comments at the beginning of this article from friends, clients and my own experience. Each of the comments, like the “severe or pervasive standard,” is an expression of rape culture. Rape culture is an environment where violence against women is normalized and excused, leading to increased risk and perpetration of rape. It may be true that not every sexual harassment experience needs to be the purview of the court, but we should at least consider that verbal and physical conduct tending to normalize gender-based violence is in itself dangerous and unacceptable. Correcting power imbalances As Gloria Steinem argued, sexual harassment law is not meant to prohibit or interfere with consensual sexual conduct or wanted flirtation. But, sexual harassment law, like all discrimination law, is meant to work toward correcting power imbalances. Until the standard is more clear, it will continue to fail at that
RkJQdWJsaXNoZXIy Nzc3ODM=