Harassment Quiz Results

Ken White*, attorney and sexual harassment law educator, recently spoke at FtBCon about Sexual Harassment.  As part of his presentation he developed a quiz regarding sexual harassment that was designed to educate and inform.  As such, the answers were provided immediately after responses were submitted.  Below you will find the aggregate responses to each question.

QUIZ:

1.  Albert works for ConCo, a company hosting conventions in the United States. Albert feels he’s being harassed by his supervisor at ConCo, who keeps making sexual statements to him. What can Albert do?

1. Make a claim under federal law.
2. Make a claim under state law.
3. Make a claim under city law.
4. Possibly all of the above.
5. Nothing.    

ANSWER: (d). As an employee of a private company, Albert is protected from sexual harassment under Title VII of the Civil Rights Act of 1964. In about half of the states in the United States, he is also protected by a parallel state law prohibiting sexual harassment. In some U.S. cities, he is also protected by local law.

2.  Albert’s supervisor is fired for harassment. Albert’s new supervisor is great, but one of his co-workers has been harassing him. Does Albert have a claim against ConCo for the co-worker’s harassment?

1. a.  Yes
2. b.  No
3. c.  Maybe

ANSWER: (c) Maybe. You should have known that would be the answer because a lawyer wrote this. ConCo is on the hook automatically if a supervisor harasses Albert, its employee. But if another employee harasses Albert, ConCo’s liability will depend on whether ConCo knew or should have known about the harassment, and whether ConCo addressed the harassment swiftly and appropriately. If the harassment was open and well-known in the workplace, or if Albert complained and ConCo failed to stop the harassment, ConCo will face liability. On the other hand, if ConCo had a policy against sexual harassment, and disciplined the wrongdoer once Albert reported the harassment, it might not be liable.

3.  ConCo assigns Albert to work at KillEveryoneYouLoveCon, a convention for fans of George R.R. Martin. A guest at the convention repeatedly makes sexual advances to Albert and persists when Albert says no. Albert     would like to leave, but can’t abandon his convention duties. He     complains to his boss, but his boss says that the guest isn’t an     employee and ConCo can’t do anything about it. Does ConCo have to     do anything about the bad conduct of someone who isn’t even their employee?

1. YES
2. NO

ANSWER: Yes! Under federal law, employers are obligated to take reasonable steps to protect their employees from harassment by third parties. Remember that when the UPS guy is hitting on your receptionist.

4.  Quite frankly Albert regrets staying at ConCo. Some of the other employees make     his life miserable. They’re all straight, as is Albert, but they call Albert “homo,” say they’ll “make him their bitch,” and mock his close as feminine. Albert wonders if he has a sexual    harassment claim. Does he?

1. a.  No. It’s not sexual, so it’s not sexual harassment.
2. b.  No. Even if it’s sexual, they are just kidding.
3. c.  Yes.    

Answer: Yes! Harassment can be unlawful under federal law, and the laws of many states, even if it’s not premised on sexual attraction or a sexual advance. Harassment based on gender, sexuality, or perceived or stereotypical gender characteristics can be sexual harassment.

5.  Albert quits ConCo, but returns to KillEveryoneYouLoveCon the next year. Another     guest at the convention sexually harasses him. Albert complains to ConCo employees. This will surprise you, but they don’t do anything. Like many abstractions in quizzes, they are assholes. Does Albert have a claim against ConCo for violation of state and federal sexual harassment laws?

1. YES
2. NO

Answer: No! Title VII, and its parallel state laws, regulate the employer-employee relationship. They don’t protect citizens in the abstract. That’s one reason that conventions enact policies. If the harassment is extreme enough, Albert might have a claim against the site of the convention, or against ConCo, for negligent failure to protect him as a guest, but it would not be a sexual harassment claim under Title VII or its state equivalents.

6.  Albert is replaced at ConCo by Beth. She’s the only female employee at ConCo. Her male coworkers make her life miserable. They unplug her computer, pour paint in her locker, bad-mouth her to clients, and undermine her with the boss. They don’t treat any male employees that way. However, they don’t hit on her or say or do anything sexual to her. Does she have a sexual harassment complaint?

1. No. The conduct isn’t sexual, so it’s not sexual harassment.
2. Yes.

ANSWER: Yes. Sexual harassment is harassment based on gender. It doesn’t have to be overtly sexual. Singling out someone for abuse based on their gender can be sexual harassment even if it doesn’t involve sexual conduct.

7.  Beth has a coworker, Steve. Steve is offended by a picture on Beth’s desk,     which shows Beth holding hands with her partner. Steve feels that the picture represents Beth shoving her sexuality down Steve’s throat. Also, Beth once made a joke about how she is gay. She saw     that it made Steve uncomfortable and didn’t bring it up again, but    it upset Steve. Steve listens to Shouty McRedface, a popular talk radio host who says that under American sexual harassment law, anyone can sue for being offended. Does Steve have a valid claim for a hostile work environment, if he is sincerely offended by Beth’s picture and joke?

1. Yes.
2. No.

ANSWER: No. Under Title VII and parallel state laws require a plaintiff to show that the objectionable conduct was so “severe or pervasive” that it changed the nature of the work environment, and that a reasonable person would find the conduct hostile, abusive, or offensive. Though it is true on a facile level that anyone can sue anyone for anything in America, Steve’s suit will not get far. It will probably be dismissed at the pleading state, or at least at summary judgment, given a sufficiently awesome lawyer.

8.  Jane, a guest at BigSkepticalCon, complains that Sam, another guest, has made     harassing comments to Jane. The organizers of BigSkepticalCon talk to Jane, and based on Jane’s statement ask Sam to leave for violating BigSkepticalCon’s harassment policy. Sam complains that the organizers didn’t offer a fair process to hear out Sam’s side of the story, and that BigSkepticalCon is retaliating against Sam for Sam’s free speech. Does Sam have potential due process and First Amendment claims against BigSkepticalCon under U.S. law?

1. Yes
2. No

Answer: No! The First Amendment, and the due process clauses of the Fifth and Fourteenth Amendments only limit what the government can do. BigSkepticalCon is a private organization, not the government. Moreover, BigSkepticalCon has freedom of association, which is part of the reason that it can expel guests who violate its rules.

9.  BigSkepticalCon expels Sam after the incident in #8, above. BigSkepticalCon     employees confront Sam in one of the public merchant areas of the convention, tell him Jane’s accusations, take him by the arm, and march him out of the conference space. Afterwards they tweet “Just expelled Sam for sexual harassment. Not acceptable.     #readthepolicy.” Can Sam sue for that?

1.     YES
2.     NO

Answer: Yes! BigSkepticalCon – or any other private organization – can enforce its rules, but should use best practices in doing so. That means avoiding releasing information to people who don’t have a need to know it, training its staff in safe and legal practices, and looking to law enforcement to handle law enforcement tasks like physically expelling someone from a space. BigSkepticalCon employees should avoid public confrontations, physical contact, and releasing statements that make negative assertions about an identifiable person. Sam might sue for defamation, intentional infliction of emotional distress (based on the public confrontation), and assault and battery. Then come the lawyers. Always with the lawyers.

10.  Sam’s expulsion from Big SkepticalCon causes controversy and tumult.  Blogger Bill writes “I can’t tell you what I’ve heard from     sources, but based on it, Sam is a sexual harasser.” Blogger Gwen writes “I saw Sam grope Jane.” Blogger Steph links to Blogger     Gwen’s post and says “if that’s what happened, that’s sexual harassment and igSkepticalCon was right to expel Sam.” Blogger Wayne writes “this is just an example of feminazis attempting to     shut down reasoned discourse and take over skepticism for political     reasons. When Sam sues everybody but Wayne for defamation (Wayne lives in the back seat of an ’82 Plymouth and blogs via the wi-fi signal at the Dollar Store, and is judgment-proof anyway), who has the best and earliest defense?

1. a.  Blogger Bill
2. b.  Blogger Gwen
3. c.  Blogger Steph

ANSWER: c, Blogger Steph. Statements of fact about someone might be defamatory. Statements of opinion based on disclosed facts usually are not. Blogger Steph explicitly offered an opinion based on disclosed facts: somebody else’s report of what they saw. That’s protected speech, even if Gwen’s statement turns out not to be true. Gwen’s accusation about what she saw is protected if it’s true, but it’s a statement of fact, so it could be defamatory if it’s not true. Blogger Bill offers an opinion, but it’s based on facts he alludes to but doesn’t disclose, so it might be defamatory because it implies facts that might be true or false. Blogger Wayne eats paste and is unclear on the distinction between fact and opinion.

*Ken White is a litigator and criminal defense attorney at Brown White & Newhouse LLP in Los Angeles. As part of his practice, he trains employees and supervisors at his clients’ businesses on how to comply with sexual harassment law. He also blogs about legal issues at Popehat.com.