Workplace Sexual Harassment is bad, mmkay? (Splinter from Brad Wardell thread)

No actual Brad updates, but this news story reminded me of Brad and his misadventures.

Some Brad-like situations:

Maybe we're wrong about this case and the courts won't have any clue about harassment, as seems to be the case here (admittedly from reading a Yahoo news story on the case).

Yea, well, the Michigan State Supreme Court seems a little more diversified than the Iowa State Supreme Court. It's possible things may go differently in cases like these.

MI:


IA:

You mean to say that a bunch of dudes might not understand sexual harassment from the perspective of a female employee? NONSENSE.

Hmm. Looks like if it was brought in MI, it could result in a 4-3 split...

I will say this, as the father of two daughters: you can be an old white guy and sensitive to things like this. ;)

I will say this as someone who has learned it through a less than optimal path: being sensitive to it, while often a great thing, is not the same as being in their shoes. Empathy can be rooted in a lot of worthwhile and valuable things, but as the more interesting aspects of the #1 reason thread have shown, there's no real substitute for having [group in question] be more nearly represented in issues that affect them.
I realize you weren't saying this to imply that the one replaces the other, but I just wanted to put that out there.

True, in the same way that having good friends who are Black and seeing what they go through isn't the same as being Black and facing it yourself.

BTW, if you want to follow their reasoning in the ruling and the Federal case law they cited, here it is:

http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20121221/11-1857.pdf

The Iowa Supreme Court is an odd group (I live in Iowa.) Conservatives tried to get a few of the Justices tossed because of the ruling of the Court that legalized same sex marriages in Iowa (one of the last states for which you would expect such a ruling.) They were successful in getting 3 of the Justices replaced. But the Iowa SC isn't as ideologically split as some courts, for a variety of reasons: here's a good article on them:

http://thegazette.com/2012/07/15/patterns-emerging-in-iowa-supreme-court-decisions/

FWIW

And I wonder if this thread belongs in one of the political forums at this point. ;)

The lady in question didn't bring a harassment case, because she didn't feel harassed. Basically, this comes down to whether the guy is allowed to fire someone because his wife views her as a threat and demands it. This story actually reminds me a lot of the Sarah/Hagar story from Genesis, in that the wife gets to banish women she doesn't want around. Granted in this case there's no actual sexual relationship. But the feeling of threat and the demand to control who her husband interacts with feels similar to me.

Bottom line to me is that you can clearly fire someone because your wife doesn't like the person. Does it become impermissible if the reason for the dislike is a sense of romantic threat? She clearly wasn't fired because they don't view women as equally competent or reliable, which is the standard protected reason. Mike's Verdict: Not every dick move is a Federal employment violation.

Would she have been fired if she was an attractive man? No. So it does seem to me discriminatory. By analogy, you can fire someone because your wife doesn't like that person, but you can't fire a black person because your wife doesn't like black people.

She wasn't fired because she was attractive woman, though, which would be primarily about her membership in a protected class, she was fired because she was an emotional threat, which is not primarily about any class she's in. She had been growing closer to the owner, they were talking about personal things, etc. And the wife clearly has no problem with women in general, since the rest of the employees are women.

There was a personal relationship between the two of them, and it made the owner's wife uncomfortable. I just don't see how this can be construed to be about membership in a protected class, just because the owner's being straight means only a woman could be a romantic threat. Do you have to be bisexual to fire people your partner is threatened by? It may be that you shouldn't be able to fire someone just because your wife feels threatened, but the US has pretty narrow rules about what's not allowed, and I think you really have to twist to make this one fit. Being totally lame is not prohibited by law.

She and the owner were exchanging text messages about personal matters. That does seem like a terrible reason to fire someone, but at that point it's beyond her being a woman per se. Employment in the US is precarious, and being friendly to your boss can get you fired. The protected class carve-outs are narrow, because Congress didn't want to make it harder in general to fire people, and this is what seems to me the intended result.

Scalia out.

That makes no sense to me. In most sexual harassment cases the employer is only harassing a few members of the opposite sex. Can a male employer really say that he is not harassing an employee because she is a woman, he is harassing her because she is sexually attractive and the male employer just happens to be exclusively attracted to women? I don't know about US labour law, but that kind of reasoning does not fly here.

Firing employees because of their sexual desirability or lack thereof is textbook sexual harassment. It shouldn't matter whether the harassment is motivated by the employer or his wife.

Maybe you're talking about a different case than the one I'm talking about? I'm talking about a case that's a wrongful termination, not a harassment case.

Agree with it or not, if you read the opinion you can see the thought process they court used and the Federal Court rulings the used to determine this was not a discrimination based on her being female. Some excerpts:

There's a lot more but it's worth reading the decision to understand their logic, even if you don't agree with it. I need to read it again, frankly, because the first time I read it I was biased in my mindset that of course this was a B.S. ruling. I need to read it again from a pure legal POV (not as a lawyer but someone trying to understand legal logic.)

Wrongful termination can be a form of sexual harassment, "sleep with me or you're fired" being the obvious example. In this case, the woman was fired based on her perceived sexual desirability, which seems to me clear sexual harassment and wrongful dismissal.

Well, she's not claiming harassment, so I find it weird to base your reasoning on a harassment argument. And you can't just assert she was fired over desirability, that's not at all uncontested. The point is that having any personal relationship at all a legal reason to fire someone. The burden is on her to prove that it wasn't the texts about family life that caused her to be fired, it was her gender. If you assume the conclusion, then you can get to an award, but it's silly to just take it as read that it's about her attractiveness per se. You'd at minimum need to prove she was substantially more attractive than any of the other employees.

I (vehemently) disagree with the bolded bit but agree with the rest.

I think she is claiming a form of sexual harassment. If the employer had cut her hours or cut her pay because the employee was too attractive, that would certainly be a kind of sexual harassment in my view. So the fact that the employer decided to fire her instead -- which is the ultimate punishment in the employment context -- can't serve to take the situation out of sexual harassment.

And indeed the court makes it obvious that the employee was being sexually harassed.

Then she was terminated because Dr. Knight's wife objected both to the texts and to "flirting" between Dr. Knight and the employee. So, the employer sends the employee sexual-charged texts and oral communications, and the employee is terminated for it. She was effectively terminated because the employer didn't think he could "help himself", and "he feared he would try to have an affair with her down the road if he did not fire her" (never mind that it doesn't seem as if the employee returned his feelings).

On the findings that the court makes, it's clear that she was terminated because Dr. Knight desired her sexually, and this distressed Ms. Knight, leading to the termination.

The court asks "whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction," and answers that yes, she may be terminated. To deny that this is sexist reasoning seems insane to me. It means a person may be legally terminated solely due to their sexual attractiveness. Who do you think is most likely to be the terminated for this reason? Who do you think is most likely to say "employee X" is so hot, I just can't help myself"?

The court also makes a particularly lame response to the issue of hostile work environments:

The court reasons that firing an attractive employee cannot constitute sexual harassment, because the hostile work environment has yet to arise. But a workplace where women are fired for being attractive is nearly definitionally a hostile work environment. Imagine the position that the other (all-female) staff members are now put in. You're boss is flirting with you. If you don't flirt back, your boss won't like you. If you do flirt back, you're liable to get fired if his wife finds out. That seems to me an incredibly hostile work environment. So the policy animating anti-discrimination laws would fully support a remedy for the woman in this case.

Huh, huh. You said "oral."

I think what mike is saying is that she didn't make a claim of sexual harassment. You're doing this pages-long analysis of, and criticizing the court for failing to uphold, a claim that this plaintiff never made in the first place. She never said the workplace was hostile or that she was fired for failing to fulfill a quid pro quo. Her claim is (apparently -- I didn't read any of the source materials, just this thread) not sexual harassment, but rather gender discrimination, which is a totally different thing.

I am not an expert in that area, but my understanding is that the claim there has to be "I was fired (or not promoted, or whatever) because I am a woman." If I am fired for some other reason, that doesn't count -- even if that reason is unique to women. For example, if I decide to keep showing up to court in a skirt, I will get fired. That would be legal. It doesn't matter that I am only forbidden to wear skirts because I'm a man. I would not be fired "because I am a man," even though I might want to put it that way in a lawsuit. I would be fired because I wore a skirt. Similarly, this person isn't being fired because she's a woman. The defendant hires lots of women. She's being fired because the defendant's wife doesn't like her.

Would she have had a better claim for sexual harassment? I don't know because I'm not n expert there, but her lawyer presumably is and he or she thought No. And I can imagined hat No is probably right. This woman didn't feel harassed. The comments were apparently not unwelcome. Although you're clutching your pearls a little bit about what he said to her, the fact is that lots of workplace relationships include some sexual banter or discussion of sex lives, even between supervisor and supervisee, and that's fine as long as nobody is made uncomfortable by it and nobody's advancement depends on it. A hostile environment has to be a pervasive thing. This is an isolated incident with this one person, and it isn't even something you would normally think of as sexual harassment. She's. fired because her boss's wife is paranoid and her boss is a milquetoast. Those things aren't against federal law.

I find it confusing, because in my jurisdiction a claim of discrimination encompasses a claim of sexual harassment: sexual harassment is a form of sex discrimination because it denies women equality of opportunity in employment because of their sex. On the facts in the Iowa case, a finding of discrimination would easily be made out on the facts by showing harassment. I'm perfectly willing to accept that US Courts have narrowly construed sexual discrimination to exclude sexual harassment, but in my opinion that is A. wrong and B. stupid.

I understand the reasoning. I just think it is obviously wrong. It is the same kind of reasoning that would allow an employer to fire women for being pregnant: the employer would say you are being fire for being pregnant, not for being a woman, even though only women ever get pregnant.

Further, your reasoning would make it impossible to prove any kind of discrimination whether there is differential treatment among members of a group. Say a racist employer fires half his black employees. Could he really point to the remaining black employees as proof that he didn't discriminate? If discrimination requires that every member of the protected group be treated identically, then a finding of discrimination is practically never going to be possible.

I also don't see why you should stop at "She's being fired because the defendant's wife doesn't like her" without looking at the actual context of the relationship. Why doesn't the defendant's wife like the employee? Because the employer, by his own admission, is sexually attracted to the female employee and doesn't believe he can "help himself". It's not enough to say that the employer (or his wife) doesn't "like" the employee. You have to ask why.

The reason probably has to do with the summary nature of the proceeding. By proceeding summarily they would have saved a lot of time and money. Summary proceedings are usually not available where there are a lot of contested facts, so she would have proceeded on her theory of the case that involved the fewest disputed facts.

How am I clutching my pearls? I literally quoted the judgement. Dr. Knight made inappropriate comments to his employee. His employee did not respond in kind. When his wife found out, she made Dr. Knight terminate the employee. That's a good deal worse than being made "uncomfortable". If it was just some bantering, I'd say no big deal. It wasn't just bantering: she lost her job because of it. That's pretty much the ultimate in workplace prejudice, even worse than limited advancement.

Again, you need to look at the whole context. Why is his wife paranoid? She views the employee as sexual competition. If the employee had been a man, there would not have been paranoia. The employee suffered real prejudice (lost her job) directly as a result of her sex. Denying that this is sexual discrimination is folly.

Right to work states, you so crazy.

Sorry, what does this discussion have to do with unions?

IIRC Right to Work is discussed as Union Busting commonly, but also contains the rules that allow for firing people for no reason.

I'd personally lean towards this being "for a bad reason", since the problem was the doctor, not the employee.

It's not a coincidence fucked-up stories like this come out of worker hostile states. It's right to work, so the only way you can fight back against clearly stupid firings is to find some way to turn it into a protected class violation.

God forbid "you can only be fired for cause or maybe profitability" be the criteria.

The whole context includes an office full of women and replacement by a woman, though. If we're going to niggle at details, she wasn't termed for being a woman but for being a woman who became both physically and over time through a growing "connection" (text messages, personal exchanges, etc) attractive to the boss for which he developed a sincere concern about his personal life.

As Elyscape pointed out, that's "at will".

This thread, which as far as I can tell is filled with exactly zero MRA types, illustrates that the protected class argument isn't as pat as you might consider it. This particular case is complicated by the nature of the direct supervisory role of one person who also happens to be the owner of the company, but doesn't seem to immediately jump to "nine old white men who hate wimminz and unionz".

Fraternization is against the policy of many companies, union and non-union, private and public, in every state; and even fewer companies allow fraternizing within a reporting relationship. Hand-waving this particular case into the gender discrimination slot is rather too simple given all the other facts of the case, many of which we internet experts aren't privy to.

How would you as a married man deal with it if, in running your own start-up, you found yourself having a serious crush on one of your married employees who seemed to enjoy your company in return? Do you think collective bargaining would somehow solve this problem for you at least by creating a legal foundation you could rely on?

Collective bargaining or other forms of effective worker protection regulation would be effective if they force the married man to handle his emotions like an adult and not act as a thrall to his libido. It's exactly because people don't frame this as a worker's rights issue that we end up with the particular prejudices of state courts as the focal point of the argument when they shouldn't matter as much as they seem to.

What "other facets"? The Iowa court explains exactly what facts it relied on in reaching its decision. To the extent that there are other facts, those facts are irrelevant to the court's outcome. So there really aren't any other "facets" to consider.

Collective bargaining would solve the problem for the employee, not the employer, because there would be a greivance process through which the employee could protect her rights. I have exactly zero sympathy for the employer here. No one in the history of time has ever been forced to have an affair against his or her will. Firing the employee is classic victim blaming behavior - this dude apparently couldn't keep his libido in check, and it is the employee who ends suffering for it. That is fucked up, sexist, and pretty much indefensible in my view.

I have no goddamn idea, do I look like a small business owner or labor law expert to you? Who cares?

Just noting that in at-will employment states, you can fire anyone for any reason, so the only method for employees to fight it is the "protected class" out. And she lost, because that's hard in messy cases like this.

Basically.

Using your higher brain function and controlling yourself isn't an option?

This is a legally distinct thing, but in my experience, it's one and the same. Right to work states serve to erode protections to the point of effectively being at will hire/fire. With no union and no backing, workers are on their own if the employer decides it's abuse time.

The same god damn thing you would do as an adult in any situation like that, maybe?

Just as a side note, if you fire a valued employee of over ten years for no good reason and give them only one month's severance pay, you are scum.

I don't disagree. My point is not that Doc made the right choice or best choice or the adult choice or the moral choice. My question was getting to whether, well to get to how you framed it, there is a worker's rights issue here: in particular, is there a "worker's right" in the case of a consensual adult relationship that may lead to negative outcomes in the parties' personal lives and potentially bleed into the office? If so, what is that right and how may it be properly handled in advance? This was what led me to ask how could union leadership on clear workers rights issues in the past (child labor, overtime, protected classes, etc) be considered in the same ballpark? I'm definitely not asserting it's a simply lolbertarian GTFO topic.

I don't know who you're quoting with repeated reference to "facets". You're right to say that the court saw all the facts of the case and so made this decision; but I think you're going a bit far to say they discussed and delineated their thinking on every single fact that arose. They summarized the relevant highlights in the decision. Nevertheless, a number of us then sit here and say even though the court saw the facts and even though the court made this decision they must be ignoring something or they must be old white males or something else. How do you admit their superior knowledge of the case (superior to ours) but then presume you would have decided differently?

I also have no sympathy for the employer, and I'm not taking his side, and it is fucked up. But you know this wasn't some drunk almost-sex at an out-of-town convention that a series of wink wink nudge nudge decisions led up to with a "whoops my penis almost fell into you!"; this was a developed connection between consenting adults over time. I don't think any reasonable person would connect that so some kind of surge of libido the way you imply as if the guy just went nuts and couldn't control himself. You're practically putting this in the same category as date rape.

It is also a bit of a stretch to say that not being able to keep one's libido in check is "sexist" because the implication is that only men could do such a thing! I also tried to point out in my hypothetical to JM that the "problem" is one of how to properly act not one of how to screw* the employee, so my apologies if that was unclear.

*accidental humor

Apparently quite a few of us. And in my mind the question is more important than SOMEONE WAS FIRED LOL RIGHT TO WORK STATES!!!11!

It certainly is, but as a fellow human being I'm not sure any of us have the ability to control ourselves indefinitely. I don't think taking the coward's way out is a good choice either. What would be the most moral as well as legal way to resolve it? No one here seems to have any reasonable ideas besides bemoaning the anti-union sentiment in the state and exhorting the dude for not just "dealing with it". He "dealt with it" for over a year and a half and it wasn't working. OK, so now what?

(By the way if I haven't said it enough, term'ing the employee was not in my view a good choice. It was stupid, fucked up, and wrong.)

I don't care what the employer's problem is with having the hots for his subordinate. In the same way it's part of his responsibilities to not break the law or be a horrible person by filling the neighborhood kiddie pool with raw sewage, it's part of his responsibilities to not do fucked up shit in relation to a subordinate he has a crush on. The specifics of how to avoid it is his problem.

I was going to give a snarky reply, but I can't tell what the hell you're talking about here. Which worker, the wife or the fired woman? Which relationship?