Sexual Harassment: If they Like You its Called Flirting

Sexual harassment laws in the United States are completely out of control. Let's face it, men and women are sexual creatures and, as we at The Hanky Panky Report can attest, things happen when they get together. This has been going on througout the world for as long as men and women have been working together. In most of the world, the sexual dynamic between men and women is understood to be part of life and unwanted sexual advances are met with a polite "no, thank you." In this country, they are frequently met with a lawsuit.

No one should be made to feel that their job may be threatened if they don't sleep with the boss. Nonetheless, there are a number of problems with the American system which need to be addressed. First, is the systemic presumption that almost any sexual advance, or sexually themed joke or conversation is offensive and therefore actionable. For example, a female employee recently sued her employer for sexual harassment and won on the grounds that she was exposed to pornographic images which were being viewed by her co-worker on three separate occasions. That's it. There was no allegation that she was every pressured into sex with a superior, that she was ever punished or reprimanded in any way, that she was held back for a promotion or that she was subject to any other form of punitive action. Her entire case was based on the fact that she saw something that was subjectively offensive to her. People are exposed to opinions, ideas and pictures that they find objectionable every day. This is part of life and the mere fact that the opinion, idea or picture is of a sexual nature should not, without more, give rise to a cause of action for sexual harassment.

Our current sexual harassment doctrine is rooted in antiquated Victorian precepts with respect to sexual mores. Society has moved past this moral system and is time the legal system kept pace. Studies show that as many as one quarter of men and 12% of women view pornography at work. Presumably, these figures would be even higher if employees knew they were not being monitored at work. Thus, far from being aberrational, exposure to pornography at the workplace is fairly common in practice. The law should recognize this fact.

Second, there remains rampant gender discrimination pursuant to which females are widely presumed to be (a) incapable of harassing male employees, and (b) offended by the exposure to sexually explicit conversation, materials, or situations in ways that men are not. One need only look to the success of Sex and the City among female viewers, or the thousands of sexually explicity Myspace.com pages posted by women to verify that modern women are quite comfortable in sexually explicit situations. There is no reason why this comfort level should legally vanish the minute women enter the workplace.

Instead of being an instrument to protect the rights of women, sexual harassment laws are too often used as a tool by opportunistic employees to extort costly settlements from their employers. The threat of being sued for sexual harassment has resulted in massive expenditures at corporations who are required to provide impractical and ineffective sexual harassment sensitivity training, experience lost productivity, and bear the cost of settling thousands of tenuous claims. Considering the extraordinary financial incentives among employees to allege sexual harrassment (awards and settlements are frequently in the hundreds of thousands to millions of dollars per case), and the high probability of reaching a settlements due to the bad press corporations fear would otherwise result, extreme precautionary measures such as installing video cameras may well be sensible and even advisable. As the saying goes, you're not paranoid if they really are out to get you.

A recent case decided by the New Jersey Supreme Court offers some hope that we may at last have seen the limits to which the law will accommodate the often absurd and baseless claims alleging sexual harassment. The Court today issued a ruling in a case in which two female students at the Princeton Theological Seminary sued the seminary for sexual harassment after a resident of the seminary (who was not an employee or student) asked the two out on dates in 1999 and 2000. The girls informed the seminary of the man's conduct and requested the school stop it. In response, the seminary advised the women that it had no legal authority stop the man's behavior since he was not affiliated with the seminary (he simply rented a publicly available apartment from the seminary) and advised the women to contact the police, if necessary. Three years later, the women sued the seminary claiming that it should have taken more action to ensure the man did not ask them out again. The New Jersey Supreme Court ruled for the seminary, holding that the women "cannot rely on the prospect of a money damages award from the Seminary to replace their own obligation to simply tell (the man) that they had no interest in him romantically or even as a casual acquaintance."

It is sad that our state's court system was needlessly burdened for five years with such a frivolous lawsuit. It is high time that the law formally recognize what we should all inherently know to be true - that sex happens, it is a natural (and typically enjoyable) part of life, and it is neither just, nor efficient to expect our schools, employers, or our states to "protect" our citizens from normal social encounters with our fellow human beings simply because some citizens lack appropriate social skills and feel uncomfortable with their own sexuality or because they feel that every sexually themed conversation presents an opportunity to cash in.