In light of the recent allegation of sexual harassment made by some women against a prominent individual in the Detroit Arab-American community, I would like to make some observations.  By way of information, I wrote a book on a church conflict that involved some of these same issues. I am familiar with the law in such cases. 

The term ‘sexual harassment’ was first used in 1975.  Until then, women did not even know how to describe what had happened to them. Women who raised issues were often accused of being oversensitive, or of misreading a playful comment. Even the term ‘sexual harassment’ appears to cause some resistance. Research shows that women, who had been asked if they have experienced that problem, often said no. However, when asked if they had ever experienced “the sexual transformation of a professional relationship,” they were quick to come up with examples. 

By the 1980s, the Equal Employment Opportunity Commission issued guidelines for how to interpret Title VII of the Civil Rights Act of 1964, which banned discrimination by gender.  These guidelines were grounded in Supreme Court rulings and administrative law. 

They defined two types of offense. [Rape, pedophilia, and other such crimes are unequivocally illegal and are in a separate category]. The first is called quid pro quo (“this for that”).  It means that a benefit (getting a job, or promotion) is conditioned upon compliance with a sexual demand.   

The second type of offense is called hostile environment.  Here, an employer creates a condition that makes it difficult for an employee to function, or perform.  Hostile environment confuses many people who question whether an action was actually an offense.  Part of the confusion is that the courts have said (to put it crudely) that asking is not in itself an offense. In other words, asking your secretary for a “date” may be foolish, but it is not against the law so long as the secretary can refuse and there is no pressure, or retaliation.  This point does not address wisdom but what the courts consider an abuse sufficient to produce a liability ruling. 

The court established a “reasonable woman” standard for juries: “Conduct which a reasonable woman would consider sufficiently severe, or persuasive” to create an abusive environment, or affect the conditions of employment. (The phrase was later modified to “reasonable person”).  

Most organizations make a major effort to educate their employees on what constitutes an offense. A federal civil service brochure lists the following: “Staring, leering, touching, sexual jokes, sexual gestures, hugging, sexual remarks, written sexual jokes, grabbing, propositions, displays of pictures, patting.”  The University of Michigan lists as “examples of sexual harassment:” Pressure for sexual favors; unwelcome touching of body, hair, or clothing; sexual innuendos, jokes, or comments; disparaging remarks to a person about gender or body; sexual graffiti or pictures; asking about a person’s sexual fantasies or sexual activities; making sexual gestures with hands or through body movements:  A major religious denomination listed as “misconduct” such things as “suggestive jokes, language or glances that are disturbing or provocative, a hug or embrace that becomes too familiar.” 

Offenses range from improper comments (harassment), to coercion (malfeasance).  Regarding whether lower-order offenses produce liability, the court will look for a pattern of offense and at damage done. What might be a lesser offense if committed once, may rise to a higher level if  it is 1) done multiple times  2) done with different people 3) repeated over time and 4) causes an individual to leave the job or even to underperform.  

At times responsibility for an offense rests on the individual but other times it rests on the organization itself. Courts will ask whether there are clear and unequivocal policies in place that define and prohibit specific offenses; whether there is an educational process to make sure employees know the policies; and whether there is a clear process in place, whereby an individual can file a complaint with an independent official within the institution.  If an issue is brought to higher authorities, did they take proper action to stop the conduct?  For example did they express strong disapproval, reprimand the harasser, or put him on probation and inform him that repetition can result in suspension, or termination?  If these are not in place, the institution itself can be held liable for the offenses of an employee.  If an issue is taken to a higher official and there is no appropriate response, this can be considered evidence of culpability; Authorities are responsible if they “knew or should have known,” and failed to act. 

Two final points:  

First, while the law is gender neutral, this is primarily a male offense.  The courts have noted that “many women share common concerns, which men do not necessarily share” so that “conduct that many men consider unobjectionable may offend many women.” Women fear sexual violence, which few men fear.  They may see persistent, unwelcome action by a powerful figure as a threat. Males in higher positions often misread concerns about the behavior of their subordinates.  They often end up paying for their mistakes. 

Second, sexual harassment grows primarily from power relationships within organizations:  A more powerful official causes harm to a less powerful person.   She may feel that her job, or her career prospects, or the needs of her family are at risk.  She may absorb the sense of dehumanization and shame for the sake of other priorities.  g