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October 22, 2004


Thanks for an insightful post. It seems to me that the general point that can be distilled from your comments is that is it not fair to anyone that the reason one subordinate might be preferred above another would be sexual. Such sexually preferential treatment demeans both the giver and the receiver, comprising the open-market value of the mentoring recomendation.

In the pedegogical realm, I've had to stick by the teachings of one of the crazier professors I've experiences, a queer Foucauldian, who basically stated: a teacher can't sleep with a student because it would be unfair to the others.

And that's the double-bind of the student (or subordinate) who outs the sexual harasser: not the victimization but the unjust, ultimately arbitrary preference.

Excellent post, Hilzoy.

Very many years ago I became team leader of a small group of technical communicators. I had more-or-less fallen into this role - the company I was working for was in a state of flux, I just happened to be the most senior and most experienced person in the group, and therefore got handed the role without any real preparation or support. (Excuses, excuses.) We didn't do badly, but I became conscious, after a while, that one of my team was acting oddly and avoiding me out of hours. We'd got on fine before, and I wondered if the problem was that I was now in charge.

No. Turned out the problem was that I have a habit of telling jokes in meetings. I was doing it because we were all under a lot of stress, and I wanted to lighten the atmosphere a bit, and the jokes were - as far as I was concerned - harmless: I'd told the same kind of jokes in front of the same people before I was team leader, and no one had minded.

Only, I hadn't realised - I'd had no preparation for it - that a mildly offensive joke from a peer is very different from a mildly offensive joke from a superior. I stress mildly: I was telling sexist jokes that I thought were funny, and back when I was the other person's peer, well, the reaction was a laugh and an equally sexist joke from the other direction, as it were.

Not once I was team leader. Then the reaction was silence and avoidance. Finally we talked and figured out what the problem was, and ever since, in a working environment, I have been damn careful about what jokes I make. I still kick myself (gently) when I think about it, because the moment I put myself into the other person's shoes, I could see that jokes feel very different coming down (at however slight an angle) than they do from peer-to-peer.

And the same is true for other interactions. Sexual harassment is the most gross betrayal of trust: but frankly, the moment a person is in a position of responsibility over someone else - even a temporary team leader post - they no longer have the freedom to behave towards their subordinates as if they were their peers. It just doesn't work like that, and someone in a position of responsibility who behaves as if it did isn't being friendly: they're harassing.

I just thought it a little unbelievable that O'Reilly used the word "boobs" other than as a reference to the Loyal Opposition. Reading the complaint, though, made me feel unclean. And showers have lost their appeal, for the nonce.

I never liked O'Reilly; now he disgusts me.

Jackmormon: it is of course unfair to other subordinates when rewards are given out on the basis of sexual anything. But I meant to say: it's also unfair to present the person who is harassed with the choice: either sit through this or risk your career. And it's even more unfair to criticize that person, who has had to deal with an incredibly difficult situation, for not having been willing to torpedo her career rather than endure a situation she did not seek out, and should not have been subjected to.

The reason not to sleep with your students isn't just that it's unfair to the others. (I leave aside the assumption that sleeping with the professor is always a benefit of some sort, which is by no means clear.) It's that a professor has absolutely no way of knowing that his or her advances are welcome. (In my experience the professors who think they can make this call correctly tend to be the ones I think are least likely to do so.) When a professor thinks that what's going on is a nice little dalliance, he or she might be right, but then again he or she might be wrong. If s/he's wrong, then some poor student is being asked to pretend to enjoy sex (or whatever) and doing it out of fear. And that's something that no professor should inflict on a student, ever, and not just because of the unfairness to the others.

Re: "felafel", I believe he mixed up the word, and intended to use "loofah". Which sounds, incredible, even more nasty. Those things are rough.

Ugh. Now I need to go wash out my head.

Oh, and IMO, an excellent post on a tough subject.

Cohen's commentary is repellant. Its a variation on the argument that women who are alluring to sexual predators are somehow responsible for sexual aggression, unless they thump the aggressors with something powerful enough to penetrate their thick trogladyte skulls so that they figure out the advances are unwelcome. Anything less allegeldy makes them complicit.

Also stinky are two devices Cohen uses as cover for his crap -- one is his pandering that "he is assuming her allegations are true, but...."; the other is that allegedly he was prompted to write this point of view by a female staffer. Sure.

Also, I think Cohen is simply echoing a meme that Fox has deliberately spun out as part of their public relations strategy. My sense is that there is truth to the allegations (O'Reilly's recent comments about his "bad behavior" suggest the other shoe will drop soon), and Fox is trying to minimize harm to their star by trying to shape the "context" of his bad behavior; i.e., anything less than his accuser turning a flamethrower on O'Reilly is "consent."

Amen to the entire post. The article was really disgusting. The whole "the oldest trick in the world", ugh...

Two things in it stood out as particularly baffling and revolting to me - first, the reference to human resources. He seems to suggest that sexual harassment is something to be handled within a company, without going to court? or one can't go to court with "a clear conscience" unless they have first complained to human resources? I don't know what conclusion he draws there, but I got the idea what bothers Cohen most is that this came out at all. Poor, poor O'Reilly...

The second thing is at the end, "a female colleague told me to write this"...ugh... in support of his thesis that a case like this would "victimise women". Again, not sure what conclusion should be drawn other than he thinks that: a) women are a single living organism so just quote one that shares your opinion and you've exhausted all the possible opinions; and b) a victim of sexual harassment cannot draw attention to that because that makes her (and ALL women, again) into helpless victims. What a twisted way of thinking about the law! Maybe he thinks the best way of handling it would have been if she had just quit her job after the first instances of O'Reilly being a jerk - how would that have made her *not* even more of a victim?

I too think that, if the allegations are true (and I don't quite see what advantage she'd have in making this all up) then she probably thought she could put up with that crap because she wanted to keep her job. Jeez, what an unprincipled woman! It's clear she is the sleazy one in this affair, since she cared so much for her profession to want to keep it! It really boggles the mind...

Also, reading from the pages on the Smoking Gun, the allegation is that while O'Reilly was the one who did the harassment, there was a climate that favoured it - "a sexually hostile enviroment perpetrated by defendant Bill O'Reilly and other supervisors, managers, officers, employees and/or agents of defendant Westwood One" (the producers).

If that's also true, then it's not that hard to see why going to "human resources" would not have helped much. (Again, I never knew complaining to human resources was a substitute or prerequisite for going to court anyway.)

Maybe she should have gone to court earlier. Maybe there were valid reasons why she put up with this until she eventually went to court. In any case, I don't see why the fact she got to keep her job and make money would be enough to disqualify her complaints or feel pity for O'Reilly. If anything, kudos to her for putting up with all that for so long! O'Reilly comes off even worse for that.

I have a feeling that, if this was a different case that didn't involve a work environment, Cohen wouldn't feel pity for the abuser and wouldn't heap scorn on the abused if she went to court only after months of "putting up with it". But this is about work, and he's just rehashing the crap about harassment being a weapon in the hands of women to advance in their career. Because yeah, thousands of offices are full of women who made their progress just like that, it's that easy. Bleh.

Jesurgislac: even if you did tell sexist jokes in front of people in your team, that's *very* different from subjecting a subordinate to a stream of sexual fantasies over the phone and continue even after she tells you they're not appreciated! I don't think anyone would do that to a peer co-worker either, that'd be harassment in the very same way as a boss to a subordinate. The basic difference between harassment and non-harassment is not the kind of power relationships between the two people. It's the absence or presence of consensuality, of a mutual sexual interest. That's what changes the context of an act. If the interest is not there on the other side and you continue to act the same way regardless, then you are harassing someone. Even if the relationship was overturned and they were your boss, you'd still be the harasser. It's got nothing to do with limits to freedom that come with a higher position.

Well, let's take a look at Faragher:

So, in Harris, we explained that in order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. 510 U.S., at 21—22. We directed courts to determine whether an environment is sufficiently hostile or abusive by “looking at all the circumstances,” including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id., at 23. Most recently, we explained that Title VII does not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” Oncale, 523 U.S., at ____ (slip op., at 6). A recurring point in these opinions is that “simple teasing,” id., at ___ (slip op., at 7), offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment.”

These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a “general civility code.” Id., at ___ (slip op., at 6). Properly applied, they will filter out complaints attacking “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992) (hereinafter Lindemann & Kadue) (footnotes omitted). We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment, and the Courts of Appeals have heeded this view. See, e.g., Carrero v. New York City Housing Auth., 890 F.2d 569, 577—578 (CA2 1989); Moylan v. Maries County, 792 F.2d 746, 749—750 (CA8 1986); See also 1 Lindemann & Grossman 805—807, n. 290 (collecting cases granting summary judgment for employers because the alleged harassment was not actionably severe or pervasive).

* * * * * * *

Although Title VII seeks “to make persons whole for injuries suffered on account of unlawful employment discrimination,” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975), its “primary objective,” like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm. Id., at 417. As long ago as 1980, the Equal Employment Opportunity Commission (EEOC), charged with the enforcement of Title VII, 42 U.S.C. § 2000e—4, adopted regulations advising employers to “take all steps necessary to prevent sexual harassment from occurring, such as . . . informing employees of their right to raise and how to raise the issue of harassment.” 29 CFR § 1604.11(f) (1997), and in 1990 the Commission issued a policy statement enjoining employers to establish a complaint procedure “designed to encourage victims of harassment to come forward [without requiring] a victim to complain first to the offending supervisor.” EEOC Policy Guidance on Sexual Harassment, 8 FEP Manual 405:6699 (Mar. 19, 1990) (internal quotation marks omitted). It would therefore implement clear statutory policy and complement the Government’s Title VII enforcement efforts to recognize the employer’s affirmative obligation to prevent violations and give credit here to employers who make reasonable efforts to discharge their duty. Indeed, a theory of vicarious liability for misuse of supervisory power would be at odds with the statutory policy if it failed to provide employers with some such incentive.

The requirement to show that the employee has failed in a coordinate duty to avoid or mitigate harm reflects an equally obvious policy imported from the general theory of damages, that a victim has a duty “to use such means as are reasonable under the circumstances to avoid or minimize the damages” that result from violations of the statute. Ford Motor Co. v. EEOC, 458 U.S. 219, 231, n. 15 (1982) (quoting C. McCormick, Law of Damages 127 (1935) (internal quotation marks omitted). An employer may, for example, have provided a proven, effective mechanism for reporting and resolving complaints of sexual harassment, available to the employee without undue risk or expense. If the plaintiff unreasonably failed to avail herself of the employer’s preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so. If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.

In order to accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Burlington Industries, Inc. v. Ellerth, ante, p. __, also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. See Burlington, ante, at 17.

Cohen is the adulterer that wants to complain about your values and morals.

Thanks for the ammunition.

Well Said!

This is really interesting--thank you! It really is no mystery why this woman did not go to human resources. I'm sure many people who have ever gone to their human resources department for anything have learned that HR usually wants to smooth over a problem or satisfy the company. Only an idiot would believe that they are on the side of the employee. If Mackris already felt unsafe and uncomfortable there, the last people she would believe would be the HR department.

Great post, Hilzoy. Almost added "as usual," but this one's even better.

The parade of Richard Cohen's nonsense that's been launched throughout the blogosphere would cause any responsible op-ed editor to re-evaluate Cohen's utility to the Washington Post. To see so *much* nonsense collected, rather than spread out over the years, is (or ought to be) damning.

Shorter everybody:

Guys using the "she asked for it" defense, in any of its forms, fucking suck.

"Posted by hilzoy"

Perhaps at the top, please?

Otherwise: excellent post as always. Don't think I have more to say just now.

Oh, except that I'd like to see all newspapers institute a sunset policy of five years on all columnists, and if the paper wishes to have a columnist come back, make them take at least a two year sabbatical before giving them a new five year contract. Exceptions can be considered on a case-by-case basis.

This policy should be retroactive in most cases.

I have a little list, I have a little list.

"On Second Thought, I'll Have The Kibbeh from Crooked Timber"

Is it just me, or does this post seem to not actually exist at Crooked Timber?

Oh, whoops, that's because this was May, 2006, not 2008. Silly me.

The Crooked Timber post at its new URL, in case anyone cares.

Please don't take this as an attempt to minimize the rest of an excellent post, but I don't like lima beans, either. Never have. And, um - YUCK! (Had to get that off my chest. Thanks.)

Why on earth did Cohen see fit to even write this awful mess?

I suspect there are dry boney items dangling in his closet.

OT: Shrimplate, is your handle a Repo Man reference? Just curious.

Nevermind. I got the answer from your blog. Man, I'm good.

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