Sexual Harassment:
The Market Theory Finally at Work

Uncharacteristically, I learned of the news of Matt Lauer’s termination from NBC as it happened. That is, I’m not watching much network television these days. Not many facts were reported, but the ominous prediction that there could be more accusers, like all the others recently accused, was a foreboding not to un-flinch. To not let our guards down. The following days last week brought ugly claims about a man whom those of us who grew up on television believed we knew and perhaps liked pretty well. I am not a fan per se, but Lauer was a guy you felt you could count on. Which is silly, because he’s a TV personality. But as I said, I almost grew up on television. And I had somehow missed the few spots Lauer did that in retrospect, fit his new, darker persona. His wife of 20 years has flown home to the Netherlands after initially standing by him. Tammy Wynette is now in my head.

When Harvey Weinstein, Roy Moore, and Louis C.K. were accused, I believed I had a thread of news I could blog about while making worthwhile observations about the law covering workplace harassment. The contrasting ways they and their surrogates treated their accusers are starting points both for a discussion about why this outing phenomena is building into such a crescendo, and about how companies should and should not respond to internal complaints. But when Kevin Spacey, Al Franken, John Conyers, and Matt Lauer were accused, I realized that instead, this is a sweeping cultural moment that transcends the glib reflex of employment law bloggers and HR consultants to shoe-horn these developments into tidy bits of advice about harassment training, sound policies, and thorough investigations of complaints. In our (distant?) memories, are still Bill O’Reilly, Roger Ailes, Bill Cosby, and Donald Trump. After apologizing for his comments on the Access Hollywood Tapes during the campaign, and after Melania was interviewed and said she accepted her husband’s apologies and believes him to be a different man, now apparently the tapes are Fake News. Whatevs, Dude.

I just can’t reduce this stuff down to some bullet point takeaways about workplace harassment. I think what I’m reacting to more than anything is the sense that the workplace harassment policies that my colleagues and I have written for employers and the countless harassment training sessions we’ve given over the decades may have amounted to window-dressing, or “checking the boxes” to guard against corporate liability. But maybe not much more. And that is just surreal. Because as employment lawyers, it’s a pretty big slice of what we do. Together with investigating and defending claims. I am reeling just a bit at the thought that we haven’t done a tinker’s damn to protect our clients or their employees. The Market hasn’t helped us. Until now.

Our country almost didn’t have a law against sex harassment in the workplace. Well, for starters, we almost didn’t have Title VII at all. President Johnson saw it as one of his cornerstone pieces for “The Great Society.” Senator Barry Goldwater opposed it. When Dr. King called him on it, and suggested that Goldwater was a-okay with discrimination in the workplace, the senator defended his opposition with the now familiar trope that the “market” would cure discrimination by weeding-out businesses who engaged in socially bad behavior, including workplace discrimination. Goldwater’s idea was that government had no business regulating where business could regulate itself. And, although Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” (42 U.S.C. § 2000e–2(a)(1)), the prohibition against discrimination based on “sex” was added to Title VII at the last minute on the floor of the House of Representatives. 110 Cong. Rec. 2577–2584 (1964). The principal argument in opposition to the amendment was that sex discrimination was sufficiently different from other types of discrimination that it ought to receive separate legislative treatment. This argument was defeated, the bill quickly passed as amended, and we were initially left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on “sex.”

So, there is no language in Title VII that says “Thou shall not commit sex harassment.” That’s judge-made law that had to evolve over the years. It wasn’t until 1980, sixteen years after the law passed, that the Equal Employment Opportunity Commission issued its Guidelines under Title VII declaring that sexual harassment, as therein defined, is a form of sex discrimination prohibited by Title VII. The United States Supreme Court first issued an opinion endorsing the theory in 1986. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986) (In defining “sexual harassment,” the Guidelines first describe the kinds of workplace conduct that may be actionable under Title VII. These include “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” 29 CFR § 1604.11(a) (1985).). That’s twenty-two years after “sex” almost didn’t make it into the statute that LBJ and MLK pushed for and that Barry Goldwater believed was unnecessary. I went off to college that year. I wasn’t sure I was going to law school and didn’t even know what employment law was.

It is 2017. Fifty-three years since Title VII was passed. And women are bringing forth accusations against harassers, sexual abusers, men who have assaulted them, supervisors, mentors, and colleagues that are years and decades old. Companies are finally acting. Quickly. Boldly. Seemingly with an eye on advertisers, revenue streams, customers, etc. Consider it a Market Correction. A bubble that has burst. No position of power, not even the passage of time—the statute of limitations, if you like—can keep the facts from daylight. Because no longer is it about proving one’s case beyond a reasonable doubt (criminal standard) or by a preponderance of the evidence (civil standard). It’s about being heard and being believed and consequences. It’s about common sense that it takes guts to expose oneself by stepping out into the public square to accuse people of power of bad acts, and that people whose stories check-out and are verified can and should be believed. It’s a long time in coming, and I have mixed feelings about what it took to get here.

Employment lawyers, both on the defense, and my good colleagues representing plaintiffs, have done yeoman’s work in the area of workplace harassment. Employment law is unto itself because we all focus on compliance. That is, plaintiffs and defense lawyers sing from the same hymnal. It is true that in litigation we are opposed and see the same set of facts differently, but we typically agree on the broad-brush areas of the law. So as a group we are kind of watching this current bubble bursting from the sidelines, wondering together what it all means. I think Senator Goldwater was somehow wrong (Dude, 53 years for companies to police themselves?) and right at the same time. Only the Market can correct itself. We can show it the way. It can follow or not.

Ten years ago, talking to groups about sex harassment, we asked them to imagine wives, daughters, sisters and mothers in a work setting. Because, we figured, even predators have loved ones who are women, and the law of averages suggested predators were in our midst. We asked them to imagine how it would feel to know their loved ones were being harassed, and from a place of love for their own, to treat women in the workplace with respect. It was a tactic, and perhaps ham-handed even then. We were not advancing the idea that all women deserve respect whether one has a personal attachment or not. Because Harvey Weinstein and Roy Moore don’t respect women in the main. To contain them, one has to outflank their pathology. That is, if we were accomplishing more than a tinker’s damn. The current conversation has hopefully obviated such gimmicks. Predators are on a new kind of notice. Victims are too. Neither time nor power can hide what you have done or will do. Welcome to the marketplace that now finally says that women have intrinsic worth. And that men, women, and companies who disrespect that have no place in this Market.

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The author, Peter Rutledge, is an Employment Lawyer and Partner at Rutledge Law, Greenville, SC. You can contact him via these channels:
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“I think any man in business would be foolish to fool around with his secretary. If it’s somebody else’s secretary, fine.”
–Barry Goldwater