Lawyer Monthly Magazine - November 2019 Edition

By exposing sexual harassment for what it is—an abuse of power through the perversion of intimacy—you may be able to bridge the chasm between the hostile work environment claim that allows for the Faragher-Ellerth affirmative defense and the quid pro quo claim that imposes strict liability. Current events have pointedly demonstrated that the aspirations of the Faragher- Ellerth regime have proved to be ephemeral and the time to renounce the judicial demur against employer strict liability for workplace sexual harassment is long overdue. As posited by Catharine MacKinnon in her 1979 groundbreaking book, The Sexual Harassment of Working Women: A Case of Sex Discrimination, workplace sexual harassment can be combated legally only by recognizing it for what it is: the most destructive type of unlawful employment discrimination. Discrimination, of course, can only exist if the discriminator has power over the discriminated. Thus, sexual harassment is most cogently understood in terms of the power imbalance, not the sexual intent, between those involved. It is that power imbalance, channeled as sexual animus, which has allowed sex, or gender stereotypes as proxies for sex, to impede the advancement of women in the workplace. Having accepted this argument, it is a small logical leap to the position that all sexually hostile work environments are based on a power imbalance that tacitly enforces a pernicious quid pro quo favoring men over women. The current facts on the ground dictate that the price of entry for women in general business society is objectification. Unfortunately, that ante is upped to oppressive sexualization (aka hostile work environment harassment) in certain industries, and outright quid pro quo harassment in others. But the gender disparity is always there, as can easily be proven by the well- documented and persistent wage differential between men and women. Thus, the argument can (and should) be pressed by employee rights advocates that the overwhelming prevalence of workplace sexual harassment in American society has rendered the Faragher-Ellerth analysis somewhat obsolete. Given apocalyptic workplace sexism that the #MeToo movement has exposed, what type of sexual harassment can honestly be said to exist in corporate America that is not axiomatically based on a gender-entrenched power imbalance that allows men to sexualize women in the workplace almost at will, thereby depriving women of the equal employment opportunities that are guaranteed them by statute? Exposing this unfortunate current reality to judges and juries will better position you to discern facts supporting tacit quid pro quo harassment and retaliation claims where, at first blush, only garden variety he said/she said or hostile work environment claims could be seen. an employer’s effort to create such procedures, it would affect Congress’ intention to promote conciliation rather than litigation in the Title VII context and the EEOC’s policy of encouraging the development of grievance procedures”) (internal citations omitted). As the theory goes, employers will be rewarded for implementing anti-harassment policies and procedures that protected employees, and the prevalence of sexual harassment or assault in the workplace will, therefore diminish over time. As the #MeToo movement has proven, however, that theory never mirrored reality. Whenever Possible, Frame the Sexual Harassment/Assault Alleged as Warranting Strict Liability. Professional Excellence By Parisis G. Filippatos & Danielle M. Patterson, Phillips & Associates 71 NOV 2019 | WWW.LAWYER-MONTHLY.COM Thus, sexual harassment is most cogently understood in terms of the power imbalance, not the sexual intent, between those involved.