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The Swinging Eleventh

Let’s say you have a job. Which in all likelihood means that you have a boss. And let’s say the boss is somewhere in between a lech and a perv. He’s constantly talking about his sexual conquests and looking for more of them. Which you figure, is his business and you’d just as soon not talk about his dating life all that much.

But very unfortunately for you, the boss thinks that your spouse is attractive and comments about your spouse’s physical appearance. Then, seemingly out of the blue, he asks you to arrange a sexual encounter between him and your spouse. When you balk, he says that if you do that, he’ll make sure you get some money. And after you still say no, man, you don’t get it, I’m not into that, the boss says how about I bring along a date and the four of us can, you know, “party” together? There’s still that bonus in it for you if you can make that happen! And you understand exactly what he’s angling for, since you’re not nearly as dense as this fellow:

 

Now, especially during a recession, jobs are hard to come by, and you don’t want to offend your boss unnecessarily. But you’re just plain not into that kind of thing. So it’s kind of uncomfortable for you at work because you want to not get fired but come on, there’s a pretty bright line being crossed here.

So you ask the boss to stop it with the “indecent proposals” already, but he doesn’t. He offers you money to procure sex with a waitress at a restaurant where you have lunch. And you complain to the higher-ups, but no one does anything about it. So you file suit. And the best legal theory you and your lawyer can come up with is Title VII. Because this sure sounds like sexual harassment, doesn’t it?

Well, according to the United States District Court for the Northern District of Florida, and also the United States Court of Appeals for the Eleventh Circuit, no, that’s actually not sexual harassment. Because your boss isn’t treating you any differently than he otherwise would because of your gender, and it’s your gender, not your spouse’s, that’s at issue in a claim under 42 U.S.C. § 2000e-2(a)(1). Had the boss propositioned you directly, well, that’d be another thing.

But as outrageous as this pattern of conduct is, it doesn’t meet the definition of an “unlawful employment practice” under Federal civil rights law. At least you don’t have to pay back your employer’s attorney fees for the privilege of having sued them and lost.

This seems wrong to me. Seems to me that when the workplace environment is thoroughly saturated with comments of a sexual nature by a supervisor such that the basic terms and conditions of employment are unreasonably altered, even without a direct sexual proposition to the employee, you have a hostile workplace environment and that’s actionable under Title VII. Or at least you ought to have the possibility of proving that to a jury.

I sure hope the plaintiff appeals. This is a bad place to leave the law.

 

Are you outraged yet?

Oh, you weren’t outraged before? Well, how about now?

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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51 thoughts on “The Swinging Eleventh

  1. Surprise surprise I agree with you.

    There needs to be a very in-depth psychological and neurological and anthropological study to see why people like the boss keep on getting into positions where they are the boss and can make their pervy comments or actions.

    I don’t even get why someone would find it socially acceptable to make such comments. Is there perhaps a chutzpah that allows people with no censorship mechanism to travel far in life?

    It seems to me that this is pretty much quid pro quo sexual harassment even if it involved the spouse and not the employee. If someone felt he or she would be denied employment, promotion, or be terminated unless arranging an indecent proposal than he or she should be allowed to file a sexual harassment claim.

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  2. The courts sometimes!

    Well, at the least this might pan out like the recent “upskirt” imbroglio her in MA, which a law quickly clarified, passed, and signed.

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  3. Wow. That’s incredibly disturbing. And there’s definitely something wrong with the law.

    no, that’s actually not sexual harassment.‡ Because your boss isn’t treating you any differently than he otherwise would because of your gender

    Logically, this connotes that nothing a bisexual employer does could constitute sexual harassment.

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  4. I am stunned. And outraged. And furious.

    I thought it would be a months or years before I read about a ruling that would outrage me more that the MA Supreme Court ruling on the legal right of men to secretly take photos up girls’ skirts and post them online. And lookee here: the 11th managed to do it in just under three weeks.

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  5. It seems like the suit was dismissed because it was specifically about gender discrimination. Is there a way to file a sexual harassment claim that does not require gender discrimination? If so, there was probably a much better argument that could have been made. If not, of course, there is a gigantic hole in federal law wrt sexual harassment.

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  6. I’m just going to join the chorus and express outrage at this opinion. It might not be a classic case of sexual harassment but an employer hinting to an employee that he’ll get fired if he doesn’t allow the boss to sleep with your wife is at very least an abuse of power.

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  7. Just curious, was this state or federal law? And if state law, is this a common wording and a common reading of such laws? How likely is this to happen in other states? In my state? If this is federal, how hard would it be to fix it? Here in MA we fixed the upskirt thing really fast. Can such a thing happen in this case?

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  8. Let’s posit for a moment that the judges on these courts aren’t complete and total idiots. This may in fact be a correct–or at least plausibly correct–reading of the law.* What may be outrageous here is not the ruling, but a gap in the law. And that gap in the law (assuming that’s what’s going on here) may in fact be because the defendant’s behavior is so outrageous that nobody anticipated it when writing the law.

    _____________________________
    *I don’t actually know. I haven’t read Title VII or the relevant cases closely–certainly not as closely as I would assume these judges have as a consequence of hearing this case.

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    • The good professor has a point here. The 11th’s reading of 42 USC § 2000e-2(a)(1) is more than colorable: it is, in fact, probably better read as predicating discriminatory treatment upon the plaintiff’s membership in a protected class (in this case, gender). The plaintiff’s spouse is not the victim (although she may very well be squicked out by the whole thing), and the putative harasser’s conduct is based upon the gender of the plaintiff’s spouse, not the plaintiff.

      I almost fell for it myself. Where it stumbles is a bunch of caselaw describing what a hostile workplace environment is, and unfortunately I do not have time to research and cite it at the moment. I’m thinking of the Jacksonville shipyard and the Caesar’s palace receiving warehouse cases. Suffice to say that I suspect that there is common-law support for a sufficiently sexually-charged general atmosphere giving rise to a cause of action for environmental harassment despite the absence of individually-directed conduct. So the problem was not that the panel ignored the statute, the problem is that the panel ignored the case law interpreting the statute.

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      • Do you have those case cites?

        From what I was able to find, the Caesar’s palace receiving warehouse case was interpreting § 2000e-2(m), and so is not directly on point. The only Jacksonville shipyard case I could find was an M.D. Florida case, so not controlling authority for the 11th Circuit.

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      • And of course I haven’t read those cases, and however colorable the 11th’s textual reading of the law might be, the actual on-the-ground meaning of the law is also determined by the existing case law, as my friend, Burt, notes. And having read none of that particular case law myself, I hurry to affirm my point was only theoretical, not meant as a definitove statement about this particular case. Which also squicks me out, badly. I think Nick Cage’s character in Raising Arizona had an appropriate response.

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    • I think this is a fair analysis. Here’s what I took to be the relevant part from the decision:

      To prevail on a hostile work-environment gender-discrimination claim under
      Title VII, a plaintiff “must always prove that the conduct at issue was not merely
      tinged with offensive sexual connotations, but actually constituted discrimination
      because of sex.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81, 118 S.
      Ct. 998, 1002 (1998) (quotation marks omitted and alterations adopted). While
      Supervisor Thompson’s conduct was highly offensive and inappropriate, the
      district court did not err in determining that no reasonable juror could conclude that
      Thompson discriminated against Richardson because of Richardson’s gender.

      and the relevant portion from that case:

      Title VII does not
      prohibit all verbal or physical harassment in the work-
      place; it is directed only at “discriminat[ion] . . . because of
      . . . sex.” We have never held that workplace harassment,
      even harassment between men and women, is automati-
      cally discrimination because of sex merely because the
      words used have sexual content or connotations.
      “The
      critical issue, Title VII’s text indicates, is whether mem-
      bers of one sex are exposed to disadvantageous terms or
      conditions of employment to which members of the other
      sex are not exposed.” Harris, supra, at 25 (G INSBURG , J.,
      concurring).

      So, according to the supreme court at least, it seems like Title VII is only meant to target the subset of harassment that is gender discriminatory.

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    • Came here to say this. From reading the opinion, and cited case law it seems that the 11th’s ruling is more than colorable. It looks like § 2000e-2(a)(1) was simply the wrong vehicle for the complaint. (And/or there is a gap in the law.)

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  9. My outrage is much more directed at the school district for (apparently?) not canning the offending supervisor but instead seeking double damages against the man who submitted a complaint.

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    • Ok, thanks to Slade’s link above, that supervisor guy is gone.

      “I’d think that a decent prosecutor could do something with him offering money in exchange for you arranging sex.”

      Per that same link Thompson was later arrested in Richardson’s home on solicitation of prostitution charges during a Bay County Sheriff’s Office sting operation.

      So that’s exactly what they did. Good call.

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  10. Because your boss isn’t treating you any differently than he otherwise would because of your gender, and it’s your gender, not your spouse’s, that’s at issue in a claim under 42 U.S.C. § 2000e-2(a)(1).

    Upon close examination, is that even true? Presumably he’s not propositioning female employees to get them to convince their husbands to have sex with him. It’s not ONLY gender, but I’m guessing that combining gender with marital status in another context “I only proposition my unmarried female employees, because I don’t want to encourage adultery” wouldn’t fly. Same-sex marriage is currently not legal in Florida, so you can’t be propositioning women to convince their wives to have sex with him.

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    • “Presumably he’s not propositioning female employees to get them to convince their husbands to have sex with him. ”

      Are you suggesting that women can’t marry women? How Republican of you.

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  11. The victim in this case probably would get into trouble, but I’d still recommend Dolly Parton’s lines in “9-5” when her boss kept coming onto her. Something about “getting my gun and turning you from a rooster into a hen”. That would most likely have solved the problem. :)

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  12. Just so’s I’m clear:

    Even if there was a law violated here, because the lawyer sued under the wrong law, this particular case results in a not-guilty verdict?

    In the article linked to above, the plaintiff says he is going to appeal; in an appeal, can the lawyer cite other laws that might have been violated?

    (And you should read that article, if it’s accurate, the dude here wasn’t a smooth operator, he was a stalker, and he sounds mentally ill; he became obsessed with her breasts, and let her know on the very same day she was diagnosed with breast cancer — a serendipity I wonder at. Also, just for the record, they weren’t teachers, they were maintenance workers.)

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    • Even if there was a law violated here, because the lawyer sued under the wrong law, this particular case results in a not-guilty verdict?

      “Not guilty” is not relevant because it was a civil case, not a criminal case, but overall, correct. The judge or jury rules on the law that is claimed to have been violated, it’s the plaintiff attorney’s responsibility to choose the right basis for the case.

      In the article@Slade the Levellerlinked to above, the plaintiff says he is going to appeal; in an appeal, can the lawyer cite other laws that might have been violated?

      I’m not an expert in civil procedure, but I think generally no. The appellate hearing is not a trial, so new claims are not allowed, and basing a claim in a different law is, as a legal matter, a new claim. Appellate hearings just review the trial court ruling to determine if the law was applied correctly.

      Since this was a U.S. Circuit Court of Appeals ruling, that means an appellate court has already ruled that the trial court applied the law correctly. And while that’s far from definitive proof they ruled correctly, generally speaking the Circuit courts get their rulings right far more often than not. Or, that is to say, the vast majority of their rulings are not overturned by the Supremes, and its to the Supremes that this would next have to be appealed.

      Fewer than 100 cases are accepted each year, out of around 10,000 appeals (see here). So the odds of the appeal being accepted are slim.

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      • They do have the option of an en banc appeal, which is still difficult, but more likely to get heard than a petition for cert from the Supreme Court.

        It’s worth mentioning that two of the three judges on the panel that upheld the lower court’s decision on summary judgment (though not on the attorney fee issue at least) were themselves district court judges hearing appeals because of vacancies on the 11th Circuit that need to be filled thanks to decades of Congress using appellate level judicial appointments as a political football.

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