On November 12, The New York Times published an op-ed by journalism professor Katie Roiphe in which she claimed that the definition of sexual harassment is too broad because it might make "dirty joke[s] in the office ... a crime." Roiphe also claimed that "[f]eminists and liberal pundits" are not telling the truth when they say that "they are not talking about dirty jokes or misguided compliments when they talk about sexual harassment."
In fact, it is Roiphe who is completely distorting sexual harassment law. To be a violation of federal civil rights laws, sexual harassment must be "severe or pervasive" and must not only be subjectively hostile or abusive to the plaintiff but also "objectively hostile or abusive." And the U.S. Supreme Court has explicitly said that "the sporadic use of abusive language, gender-related jokes, and occasional teasing" do not constitute sexual harassment for purposes of federal civil rights laws.
Questions about what Herman Cain did or didn't do after dinners years ago have carried the subject of sexual harassment back into the news.
After all these years, we are again debating the definition of unwanted sexual advances and parsing the question of whether a dirty joke in the office is a crime. Conservatives have mocked the seriousness of sexual harassment; liberal and mainstream pundits have largely reverted to the pieties of the early '90s, with the addition of some bloggy irony about irrelevant old men just not getting it.
Recent conservative parodies of the concept of sexual harassment hinge on a certain weakness or blurriness in the definition. The problem is, as it always was, the capaciousness of the concept, the umbrellalike nature of the charge: sexual harassment includes both demanding sex in exchange for a job or a comment about someone's dress. The words used in workshops -- "uncomfortable," "inappropriate," "hostile" -- are vague, subjective, slippery. Feminists and liberal pundits say, with some indignation, that they are not talking about dirty jokes or misguided compliments when they talk about sexual harassment, but, in fact, they are: sexual harassment, as they've defined it, encompasses a wide and colorful spectrum of behaviors.
Roiphe didn't cite any court cases for the proposition that sexual harassment aims at stopping dirty jokes from being told at the office. Nor could she. The Supreme Court has been very direct to lower courts: Sexual harassment law is not aimed at policing jokes in the workplace and it does not create a "general civility code."
In 1998, a seven-justice majority of the Supreme Court addressed the issue of what constitutes sexual harassment in Faragher v. Boca Raton:
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."
And the lower federal courts have made it clear just how high a bar there is for sexual harassment claims.
In 2010, the U.S. Court of Appeals for the Eighth Circuit held in Alvarez v. Des Moines Bolt Supply, Inc. that "inappropriate comments, including about [the plaintiff's] breasts on several occasions" and a statement by a co-worker that "he was fixing a table so she could 'strip dance on it' " did not constitute sexual harassment. In the same case, the Eighth Circuit noted that it had previously held that comments about a plaintiff's body from two co-workers over a period of weeks and months, repeated attempts by co-workers to proposition a plaintiff, and unwanted touching did not constitute sexual harassment:
The employee in Vajdl alleged that over the course of three months, one co-worker commented about her body frequently, touched the bangs of her hair, wiped water off her pant leg, repeatedly suggested she leave her boyfriend and go on dates with him, telephoned her at home, and offered to buy her a drink and give her a ride home. 484 F.3d at 551-52. A second co-worker repeatedly requested that the employee go on dates with him, and the third co-worker made inappropriate comments about her body over a two-week period. See id. at 551. Our court held that the employee could not "objectively support a claim of harassment so severe or pervasive as to alter a term, condition, or privilege of her employment."
In 2000, the U.S. Court of Appeals for the Sixth Circuit held in Morris v. Oldham County Fiscal Court that dirty jokes, a "truly offensive" sexual advance, and other conduct did not constitute sexual harassment:
(1) several dirty jokes he told in plaintiff's presence; (2) his alleged verbal sexual advance related to plaintiff's evaluation; (3) his one-time reference to plaintiff as "Hot Lips"; and (4) his isolated comments about plaintiff's state of dress. Although Likins's purported sexual advance was truly offensive, it was the only advance that Likins allegedly made. Most of Likins's jokes were not aimed at the plaintiff, and that fact can be relied upon as part of a court's conclusion that a defendant's conduct was not severe enough to create an objectively hostile environment. See Black v. Zaring Homes, 104 F.3d 822, 826 (6th Cir.), cert. denied, 118 S. Ct. 172 (1997). Likins's behavior seems to have consisted of the kind of simple teasing, offhand comments, and isolated incidents that Faragher made clear did not amount to discriminatory changes in the terms and conditions of a plaintiff's employment.
Nor do the "misguided compliments" that Roiphe seems so worried about protecting constitute sexual harassment. In the 1995 case of Baskerville v. Culligan International Company, the U.S. Court of Appeals for the Seventh Circuit held that the following attempts at compliments did not constitute sexual harassment:
1. He would call her "pretty girl," as in "There's always a pretty girl giving me something to sign off on."
2. Once, when she was wearing a leather skirt, he made a grunting sound that sounded like "um um um" as she turned to leave his office.
3. Once when she commented on how hot his office was, he raised his eyebrows and said, "Not until you stepped your foot in here."
4. Once when the announcement "May I have your attention, please" was broadcast over the public-address system, Hall stopped at Baskerville's desk and said, "You know what that means, don't you? All pretty girls run around naked."
5. He once called Baskerville a "tilly," explaining that he uses the term for all women.
6. He once told her that his wife had told him he had "better clean up my act" and "better think of you as Ms. Anita Hill."
7. When asked by Baskerville why he had left the office Christmas Party early, Hall replied that there were so many pretty girls there that he "didn't want to lose control, so I thought I'd better leave."
8. Once when she complained that his office was "smokey" from cigarette smoke, Hall replied, "Oh really? Were we dancing, like in a nightclub?"
9. When she asked him whether he had gotten his wife a Valentine's Day card, he responded that he had not but he should because it was lonely in his hotel room (his wife had not yet moved to Chicago) and all he had for company was his pillow. Then Hall looked ostentatiously at his hand. The gesture was intended to suggest masturbation.
There is a line between what should constitute sexual harassment and what should not, as Roiphe acknowledges in her op-ed. But the legal line is nowhere near where Roiphe is suggesting. The workplace can be boorish, childish, and even "truly offensive," yet not constitute sexual harassment.
Rather than worry that dirty jokes may become less prevalent in the workplace, shouldn't we actually be worried about how willing the courts are to let companies off the hook when adjudicating sexual harassment claims?