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How Do You Like Me Now? The Expansion Of Sexual Harassment

By Jack McCalmon, The McCalmon Group, Inc.

Uber Technologies Inc. CEO Travis Kalanick announced he is taking a leave of absence after a report of findings from an investigative group led by former U.S. Attorney General Eric Holder. Holder's report found a need to institute more controls over the behavior of management.

The investigation was instigated after a former employee accused of the company of promulgating "brazen sexual harassment". Heather Somerville and Joseph Menn "Uber CEO takes leave of absence amid sweeping changes after scandals," (Jun. 13, 2017).

The EEOC defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature."

In 2016, the Equal Employment Opportunity Commission received only 6,758 charges of sexual harassment. The same year, the EEOC resolved fewer than 700 charges of sexual harassment. A merit resolution was a result for only 23 percent of the charges resolved in 2016. For most of the charges (54 percent), the EEOC rendered a "no reasonable cause" finding.

When you consider that Uber has more employees and drivers than the number of sexual harassment complaints filed against employers in the U.S., one could argue we do not have a sexual harassment crisis in this country.

Sexual harassment is a form of illegal sex discrimination. Consequently, of the small number of charges of sexual harassment brought each year, many do not involve males harassing females (as the public often perceives), but involve males charging harassment by females; males charging harassment by other males; and females charging harassment by other females.

Yet bad behavior, including isolated instances of sexist and/or locker room talk, especially by male executives or person's power, has captured the public's opinion about what should be illegal in the workplace.

Under the law of sexual harassment as it stands today, a claimant would have to show that the behavior in question was "unwelcome" and so severe or pervasive that it transformed the workplace into a working nightmare such that any reasonable person could not work there…a hard burden to prove in court.

Yet, going to court is slowly becoming unnecessary, and complainants are going straight to the press. Directors and shareholders forced by advertisers and public opinion take actions leading to settlements and restructuring before petitions are filed or juries are convened.

Not so long ago there was a strong push in this country to outlaw bullying in some states. Several states tried to pass laws doing so, but were unsuccessful. One reason was that opponents successfully argued that equal employment and common law prohibited the most extreme forms of bullying, like harassment, assault and battery, defamation, and intentional infliction of emotional distress, and that management should address bad behavior or misuse of power, rather than the courts or the government.

That initial failure to pass legislation has not stopped some from advocating for prevention of bad behavior in the workplace. Instead, the focus has changed from "outlawing bullying" to "promoting civility" and expanding sexual harassment to include forms of uncivil behavior. In June of 2016, the EEOC Select Task Force on the Study of Harassment in the Workplace stated that despite the numbers, sexual harassment remains a problem because it is not reported and that sexual harassment training was not cutting it alone, but needed to be revamped to include training on "civility".

If you look at the definition of sexual harassment, the word "civility" is missing, however. Even so, the EEOC and others are arguing, in effect, that the definition of sexual harassment is not effective for addressing all forms of abuse of power, including bad and disrespectful behavior…a similar claim made by earlier proponents wanting to outlaw bullying in the workplace.

The U.S. Supreme Court in Oncale v. Sundowner Offshore Services, Inc., Case No. 96-568 (S.Ct. 1998) wrote:

The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.

It appears that "social context" is requiring employers to expand the definition of what is sexual harassment to include bad behavior, especially for those in the C-suite, and employers should take notice.   

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