HEADS SHE WINS, TAILS HE LOSES

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Sexual Harassment Stories

A report from the field illustrates both the need and danger of regulations.

http://online.wsj.com/article/SB10001424052970203804204577017862365156578.html?mod=djemBestOfTheWeb_h

By JAMES TARANTO

Yesterday's column, exploring the allegation that unnamed women made unspecified allegations against a unidentified presidential candidate--OK, it was Herman Cain--prompted this email from a reader who asks to join the crowd and remain anonymous:

I have been through two such episodes in my career, although in neither case was the allegation made against me. Both of these events, at different companies, occurred in the late 1990s.

In the first incident, we were in a team meeting. One female member came late. The seats were all taken. Our CEO says to her that as there are no chairs, she is welcome to sit in his lap. She leaves the room and brings in a chair. Later in the same meeting, he compliments her on her dress and says something to the effect that the dress probably looks even better off of her. What a card!

She goes to file an action against him and the chief operating officer says basically: Everyone knows he's a jackass. Get over it.

Rather than get over it, she gets an attorney. There is a brief investigation, our board has a Saturday morning phone conference, and by Saturday afternoon we are looking for a new CEO and a new COO.

In the second incident, I had hired a new manager. One of his staff had wanted the job, but she was never on my list of candidates (which I had told her up front). She welcomed him by refusing to do every assignment he gave her. He and I met with the head of human resources and developed her "performance improvement plan," or PIP, as we call them. He went through the plan with her. She left the meeting, went to HR and said he called her a whore and fondled himself during the session.

Everyone knew it was a bunch of BS. He was (and is) as straight an arrow as you could find. The investigation--bringing in every female in the office and asking if he had ever made them uncomfortable or said anything untoward--ripped him apart. He was cleared, and the accuser left before she got fired. But he never got over it and lost his touch with staff. He was much less trusting and still hurts from this.

These two stories neatly illustrate both the necessity for sexual harassment laws and the injustice of the way they are currently applied.

From the facts we have available, it's possible that the company in the first case could have defended itself and its executives successfully had it gone to court. "For sexual harassment to be actionable," Justice William Rehnquist wrote in the landmark case of Meritor Savings Bank v. Vinson (1986), "it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment" (omitting internal quotation marks). Two comments in one meeting might have fallen short of the quantitative standard of pervasiveness.


Still, it was undoubtedly wise of the board to fire the pair. The comments surely met the qualitative standard (severity), and it's quite possible that other incidents would come to light in the discovery process to show that the problem was pervasive. Further, the COO's dismissive response put the company at risk of liability under the Equal Employment Opportunity Commission guidelines that Rehnquist quoted in Meritor:

The employer will be liable if it has actual knowledge of the harassment or if, considering all the facts of the case, the victim in question had no reasonably available avenue for making his or her complaint known to appropriate management officials.

In this case, the system worked. The threat of a lawsuit gave the board an incentive to take swift and harsh action against executives who had engaged in and condoned conduct that was repugnant, grossly unprofessional and possibly violative of the complainant's legal rights.


In the second case, however, the accused man was innocent. The system also "worked" in that he was not fired or formally punished. But the investigation itself was agonizing enough to create what could be described (though in colloquial rather than legal terms) as a hostile environment. And while the accuser ended up leaving the company, in a just world she would have been summarily fired for making an accusation that executives knew to be false.


The fallen nature of man is gender-neutral. Some men are pigs, and some women are liars. Current sexual harassment law deals justly and effectively with the former at the cost of allowing the latter to do great harm to innocent men. The presence of both sexes in the workplace makes necessary some combination of laws, policies and customs to regulate sexual behavior on the job. But the principle of heads-she-wins-tails-he-loses does violence to both justice and equality.