More Sex Harassment Stuff

Erin O'Connor at Critical Mass is posting on the recent resignation of Berkeley's law school dean over "sexual harassment" charges. Erin is right that it seems to be a real case of "he said, she said." Erin is also right that sexual harassment laws are systematically abused for political reasons. In my experience, sexual harassment claims - and mere accusations can be death sentences for certain employees - have the effect of disadvantaging older long-term male employees in favor of young short term female employees. In the more problematic cases that I have seen the accused is a man who has worked a job for twenty plus years and the accuser is a young short term employee who is offended by some off-hand comment. Where the employee is marginal, such as where he is approaching retirement or has suffered a work-related injuy, employers will assess the relative risk and costs of a sexual harassment suit against the possible risk and costs of a claim for termination without good cause and will factor in the older employee's declining productivity. Next thing you know the older man is gone. [There is an entirely different set of calculations where the employee is extremely productive, such as a very succesful salesman.]

The real question in the Dwyer case, though, is where is the sexual harassment? At its core, sexual harassment involves a misuses of the power relationship inherent in employment. Thus, sexual harassment can involve quid pro quo, where sex is traded for benefits or to avert threats, or "hostile work environment," where the workplace, or schoolsite, is affected by severe or pervasive sexually offensive conduct, displays or communications. With all due respect, while fondling a drunken woman off the work or school site may constitute sexual battery, it does not clearly involve actionable sexual harassment unless the Dean's position was used to advance the sexual battery. For that matter, given recent decisions that sexual batteries by police officers are not within the course and scope of employment, Berkeley may have no liability if the alleged sexual battery is proven.

The action here may be based on allegations of retaliation for opposing or objecting to unlawful conduct. Certainly, the one year time period to file a claim with the DFEH concering the incident has been blown. [Assuming that the DFEH has jurisdiction over student complaints. Otherwise the statute of limitations is one year under California's Unruh Act.] The alleged statements by the "EEOC compliance officer" that "the official refused to assure the student that her identity would be kept confidential or that she would be protected from retaliation" may be setting up a retaliation theory.

The alleged statements seem off the wall but I have been in cases where a victim comes forward with the claim and she was told that she could not report anonymously and that her identity would not be kept confidential. Her identity was thereafter almost immediately broadcast throughout her work department, which resulted in increased hostility and various retaliations. My view is that some attempt should be made to keep the complainant's identity confidential, but it may not be possible under all circumstances.

The last statement, though, is incredible, if true. A complainant should be assured that there will be no retaliation, which is what the law requires. On the other hand, retaliation means different thngs to different people. Social ostracism may not be unlawful retaliation, and this may have been the context of the communication. Nonetheless, I have seen incredible statements made by HR in similar circumstances so no statement should be automatically discounted.

This may be the social enineering aspect of this case. The complainant's attorney may be attempting to educate Berkeley's HR about the law with respect to receiving claims of sexual harassment. I have to question the rationality of this goal, inasmuch as the conduct doesn't really look like sexual harassment. [Again, if you believe the plaintiff's story, it looks like sexual battery, which is a crime, and there is a completely different forum for lodging a complaint, which we call the "police."]

My quick assessment is that all things being equal this is not an attractive case. The value in this case might have been the publicity value, but frankly the value that can be leveraged from concerns about publicity are usually not great, and the value goes away once you pull the trigger and make the claims public. At that point, the defendants have every incentive to fight. Always leave your opponent a golden road of retreat.

Sidenote: Here is my earlier post on a recent California case discussing the element of "pervasiveness" of sexual harassment in the workplace. The facts of that case are the kind of gobsmacking bizarreness that proves that truth is stranger than fiction because fiction has to at least be believable.