Sex in the time of the Supreme Court
by Michael Maiello
Sexual Harassment's back. And the Supreme Court's got it. No, I'm not talking about Clarence Thomas, though I'm sure our two female justices and female staff members prefer to keep their soft drinks away from him. The latest harassment case in front of the courts involves a supervisor who tells a female employee to sleep with him, or lose his job. But, he never fires her, and she never sleeps with him. The Supreme Court is under pressure to unify interpretation of harassment laws, hopefully to end the string of appeals every case brings with it.
There are two issues. One, if he never carried out the threat, is it harassment? Two, she's suing the company, not him personally. Does a supervisor act for the company?
The first issue clearly goes to the plaintiff. It doesn't matter if the threat was carried out, it was made. It was made by a man with the power to carry out the threat. It probably made work a bit tough for the plaintiff. So the guy is wrong. Wrong, wrong, wrong. Of course, this is a he said she said kind of argument. If it happened, he's wrong, wrong wrong. If it didn't, she's wrong, wrong, wrong. If she's got the evidence to bring it to trial, she should.
But the second issue is stickier. The company is question has a sexual harassment policy on its books. They claim to enforce their policy as it is stated. But they lack mind control over their employees, and that includes supervisors. So the company is saying, "Uh uh, you got the wrong defendant. If this happened, we're not liable, he is."
I can see both sides of this. If the company has a coherent and rational policy, and if they are enforcing it, the woman's case against the company should be dropped. If the company dropped the ball, and the plaintiff can prove it, the company is wrong, wrong, wrong.
The woman in question still has a case, even if she has to drop suit against the company. Her crusade for justice should be against the man who harassed her. So unless she proves some sort of corporate negligence (and lower courts have denied this claim), I think the legal and social implications are less if the suit against the company is dropped and the plaintiff is allowed to seek justice from the individual who wronged her.
If it's not, I see a bad future for the American work place. I've already worked for a company which forbade employees from dating colleagues they outranked. If you're a department manager, you couldn't date a cashier. A store manager couldn't date a department manager. A cashier could date another cashier, and a department manager in books could date a department manager in the video department, but neither could date an associate in the music department. To do so risked termination.
Everyone ignored the rule. No one was fired. People dated whoever they wanted to, broke up, and said nasty things about each other, forgave each other, became friends. started dating other people, just like in real life.
Now the company in question tended to ignore their own policy because it hired a lot of young people, and young people like to go on dates, and have sex, and break up, and make up, and no one was willing to forgo those rights just to keep a job which paid under $6 an hour. Also, the company is question probably never thought they could get sued over a relationship which had gone bad in one of their stores.
Once that precedent is set, all that would change. People would get fired for leading normal sex lives against company policy. Of course, consensual sex is different than sexual harassment. But we have to consider the corporate response, which is to try and eliminate the problem simply.
A corporation doesn't want to spend a lot of time on these issues. They will simply say, "you can't sleep with your coworkers, or we'll fire you." Or they will publish variations on that theme, and since they're legally liable, they will enforce their rules. This would certainly protect them from sexual harassment claims, because they'd be able to immediately terminate people before the claims came up.
"But sir, I didn't harass her, I just asked her out."
"Yes, and dating employees is against the rules anyway, so even if she misinterpreted the situation, you're fired."
Sexual harassment went unchecked for too long. So of course the reaction has been fierce since the issue really hit the national spotlight during the Clarence Thomas hearings. Threatening people in order to get sex is wrong. We all know that.
But we have to be careful to preserve normal consensual sexual interaction in our society. Because sex is an okay thing. It's not wrong, wrong, wrong. Because no corporation pays its employees enough that it can ask them to give up a healthy sex life. So I hope whatever ruling the Supreme Court hands down addresses that issue -- people have the right to consensual copulation. Maybe we can get that amended into the Constitution.
Michael Maiello is moving out to the left coast in order to accept a non-paying internship at a rather left-leaning magazine, which is, of course, part of the leftist liberal elite media.
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