(Bloomberg Opinion) -- Last week, the Minnesota Supreme Court heard Kenneh v. Homeward Bound, a sexual harassment case that takes aim at the legal requirement that harassment must be “severe and pervasive.” The case hinges on an assistant program supervisor harassed by a janitor. According to her, when he stopped by to fix her desk, he began “talking sexually” and licking his lips. One day he followed her to the vending machine and proposed oral sex. He even pulled up next to her at a gas station—as if he were following her. The court will now decide whether this conduct is “severe and pervasive,” or whether that requirement is outdated.
After #MeToo, men and women largely agree on what sexual harassment is -- and want workplaces to eradicate it: 86% of Americans now endorse a zero-tolerance policy toward harassment. The law is not governed by public opinion, but what Americans believe about sexual harassment does have a direct impact on the law. A crucial question, said the Supreme Court in 1993 in the landmark case Harris v. Forklift Systems, is whether a “reasonable person” would find a work environment hostile. What a reasonable person would believe today is very different from what people believed in the 1990s.
But our legal system remains confused, as reflected in four disproportionately influential cases decided between 1995 and 2000, which have collectively been cited nearly 4,000 times. I call them the feckless four. The feckless four largely ignored the “reasonable person” standard in the first place. Instead, they cherry-picked other language in the Supreme Court’s 1993 ruling, such as whether the harassment is “physically threatening or humiliating” or “severe or pervasive.”
The most influential of the four considered the situation of a 911 dispatcher named Patricia Brooks. She was fielding an emergency call when a male colleague came over and put his hand on her stomach. “Brooks told Selvaggio to stop touching her and then forcefully pushed him away. Perhaps taking this as encouragement,” notes the 2000 court opinion obscurely, he returned later the same evening, trapped Brooks against her desk while she was on another 911 call, and put his hand “underneath her sweater and bra to fondle her bare breast.”
Selvaggio served 120 days in jail for sexual assault. Despite this, the Ninth Circuit Court of Appeals found no harassment, saying that his behavior wasn’t “pervasive” because all the incidents took place on one day. The judge intimated that a single incident might never be “severe” enough to sustain a claim of harassment, even in a case of violent rape. Some lawyers refer to Brooks as the “one free grab” case. The judge who wrote the opinion, which has since been cited more than 1,200 times, was Alex Kozinski, who resigned in 2017 after 15 women accused him of harassment -- including groping.
In Mendoza v. Borden, a 1999 Eleventh Circuit case that has been cited nearly as many times, Red Mendoza alleged sexual harassment by Daniel Page, the highest-ranking executive at her worksite. She testified that he harassed her – leering at, touching, and following her -- at least 12 different times over a period of four months. The employer argued that the behavior did not amount to harassment. The Eleventh Circuit agreed, on the basis that what happened to her was not “physically threatening or humiliating.” The Supreme Court has never said that harassment must be physically threatening or humiliating—it’s listed as a factor that “may” occur—but Mendoza treats this as a requirement.
So does Shepherd v. Comptroller of Public Accounts, a 1999 case cited nearly 600 times, in which, among other allegations, a co-worker patted his lap and told the plaintiff, “Here’s your seat,” announcing, “Your elbows are the same color as your nipples.”
The final member of this hall of shame is the 1995 case Baskerville v. Culligan, decided by Seventh Circuit judge Richard Posner and cited nearly 900 times. Valerie Baskerville was a secretary harassed by a boss who mimed masturbation and whose brilliant witticisms included a public announcement that “All the pretty girls [should] run around naked.”
All four cases miss completely the central #MeToo point: When women show up to work, they are entitled to be treated as colleagues, not sexual opportunities.
There are two ways out of this mess. One is for states to pass statutes clearly defining and banning sexual harassment. But although 39 states and D.C. have passed roughly 150 sexual harassment statutes since the start of 2017, few provide guidance on what constitutes sexual harassment. Instead, most focus on no-brainers like barring the use of public funds to pay sexual-harassment settlements against government officials. An exception is a New York State statute eliminating the “severe or pervasive” requirement.
The other solution is for courts like the Minnesota Supreme Court to abolish the “severe or pervasive” requirement, and stop acting like harassment has to be “physically threatening,” when they hear cases like Kenneh. This makes sense: employment law generally prohibits all discrimination, not just discrimination that is severe, pervasive, or physically threatening.
Indeed, some state and federal courts are noting that older case law needs to be used with caution because what reasonable people believe has changed. Said a federal trial court in the September racial harassment case Artis v. Lyon Shipyard, “the Court is careful not to place undue emphasis on the fact patterns of ‘historical’ cases, as doing so would ignore evolving social norms.” Would that courts would do the same with respect to sexual harassment cases.
Courts should stop citing the feckless four and let juries do their job of determining what’s reasonable in the age of #MeToo. It shouldn’t be hard — if polling data is any guide, most of us already know.
Most agree that touching or groping is harassment (96% of women and 86% of men), as is making sexual comments about someone’s body (86% of women and 70% of men) and sending sexually explicit emails (83% of women; 69% of men).
Zero tolerance does not necessarily mean that harasser should be fired. It means that employers will not tolerate sexual harassment, not that they will always preselect a specific response to it.
At the other end of the spectrum is Nevada’s recent statute, require that sexual harassment be both severe and pervasive. That is truly a step in the wrong direction.
To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Joan C. Williams is a Distinguished Professor of Law at the University of California's Hastings College of the Law and founding director of the Center for WorkLife Law. She is the author of "White Working Class: Overcoming Class Cluelessness in America."
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