Ethical Choices and Legal Obligations_3 potx

egregious conduct can support a claim of sexual harassment basedon a hostile environment.’’2 The fact that the law has the ability or the willingness to addressonly the most ‘‘severe and

egregious conduct can support a claim of sexual harassment based

on a hostile environment.’’2

The fact that the law has the ability (or the willingness) to addressonly the most ‘‘severe and pervasive’’3 hostile work environmentsdoesn’t mean that only such major-league hostility should be a con-cern for managers Thinking that way is a critical mistake—first,because small problems have a way of morphing into large ones and,second, because a woman may be treated inappropriately even if thefederal courts don’t give her a legal remedy As we saw in Chapter 2,the reach of the law is not congruent with what’s right and what’swrong, even when the law—such as Title VII—was passed because itreflected a deep comprehension of the difference between ethicallyappropriate and inappropriate conduct

TWO KINDS OFSEXUAL HARASSMENT

The law against sexual harassment, as we’ve seen, distinguishesbetween whether a woman is made to feel devalued because of a hos-tile work environment or threatened with sanctions if she rejectsunwelcome advances That’s a valid distinction, but if we want tounderstand what’s wrong with sexual harassment, I think there’sanother distinction that pinpoints two different ways in which wom-en’s rights are violated On the one hand, a woman can claim theright not to have her zone of privacy invaded, even if no third per-son knows about it On the other, she has the right not to be ridi-culed in public

Each of us limits the people we allow into this zone, and even bestfriends typically do not discuss the details of their sex lives with eachother I get to control access to this part of my world, and so doyou It’s a core part of my privacy and yours.

The first kind of sexual harassment invades this area of privacy Inits mildest form, a male employee makes lewd or sexually suggestivecomments to a female Sometimes the comments rise to the level ofimplicit or explicit advances Sometimes there’s an outright proposi-tion that she have sex with him The lewd remarks need not be madewhere others can hear them, and outright propositions frequentlyare not public The ethical and sometimes legal objection comesfrom the male employee crossing the barrier into the woman’s zone

of privacy from which she has the right to exclude the uninvited

In the workplace, the male frequently outranks the female in thecompany hierarchy, adding an element of an abuse of power to themix In the facts that led to the Supreme Court’s landmark MeritorSavings Bank decision, the female, Mechelle Vinson, was hired to be

a teller at the bank The person who hired her, and then harassedher, Sidney Taylor, was the branch manager.5 Although initiallytreating her in ‘‘a fatherly way,’’ his true intentions soon becameclear He invited her out to dinner and she accepted; during thecourse of the meal, he suggested they go to a motel and have sex.Although Vinson initially refused, eventually, out of fear of losingher job, she consented At the trial, she testified that, over a number

of years, they met for sex between forty and fifty times.6

There are two crucial points we have to understand At her trial,Vinson testified that on a number of occasions beyond the forty orfifty sexual encounters, Taylor ‘‘followed her into the women’srestroom when she went there alone, exposed himself to her, andforcibly raped her.’’7 Rape, of course, is a crime Unlike sexual har-assment, men go to jail for committing it If a man has the assets tomake it worthwhile, he also can get sued for big-time damages.(Remember the civil case brought against O J Simpson after he wasacquitted in his criminal murder trial.) What’s important from thestandpoint of management, however, is that the use of physical force

is not essential to create the problem, either in the civil courts orethically

Neither is it necessary that the woman fears she’ll lose her job Aswe’ll see shortly, such pressure by a male boss aggravates the wrong-fulness of what he’s doing, but a male can sexually harass a female

employee even if he does not outrank her and has no influence onher promotion track.

The reason why force, whether physical as in the case of rape, orpsychological, when her job prospects are threatened, isn’t necessarygoes back to the invasion of a woman’s zone of privacy surroundingher intimate life If we think that people have rights of any kind, as

we discussed in our critique of consequentialism in Chapter 1, theright to a sanctuary surrounding one’s intimate life has to be nearthe top of the list In the early days of sexual harassment litigation,defense lawyers came up with what was called the ‘‘boys will beboys’’ defense ‘‘Coming on to women is just what men do It’s howtheir heads are built,’’ the argument went ‘‘If there’s no physical vio-lence or inappropriate pressure, there’s no wrongdoing Complain-ing that men shouldn’t be like that is like complaining that days areshort in December It’s the way the world is.’’ Not surprisingly,courts rejected this defense Companies that want to stay out oftrouble won’t countenance this kind of thinking either A woman’szone of privacy needs to be respected

The biggest problem companies face in the area of sexual ment is not failing to have a policy prohibiting the conduct Statingthe policy is easy Rather, the problem is enforcing the policy Before

harass-we consider this, hoharass-wever, harass-we need to look at another kind of sexualharassment, where enforcement is also the key problem This is theproblem of gender disparagement

Humiliation and a Gender-Disparaging Environment

A work environment can be hostile to women (or, again, to gaymales) on set-related grounds without even the whisper of anunwanted sexual advance We can be clearer about this if we callsuch an environment ‘‘gender disparaging.’’ Why so many peoplefeel the need to couch their identities in feeling superior to othergroups is one of the true mysteries of history and social science Youcan find it all the way back to the great early civilizations of Greeceand China, and it continues From the broadest perspective, what weare talking about is an instance in which people (here, males) seek toclaim superiority over others (females) not because of any personalattributes, but simply because they are males (The same is true ofsome straight males who assume superiority over gay males But, asbefore, we’ll stick to the more common male-female situation.) The

distinguishing feature is the sexual tone, but it’s not the tone of aman coming on to a woman Here, the problem isn’t that a man ismaking unwanted sexual advances to a woman It’s that men are dis-paraging women as a class The derogatory tone in instances likethese is sex-specific.

Here’s an example In the 1980s, Teresa Harris worked as amanager at an equipment rental company When her case reachedthe U.S Supreme Court, the Court, speaking through JusticeSandra Day O’Connor, the first female justice, described whathappened:

Hardy, the president of the company, often insulted herbecause of her gender and often made her the target ofunwanted sexual innuendos Hardy told Harris on several occa-sions, in the presence of other employees, ‘‘You’re a woman,what do you know’’ and ‘‘We need a man as the rental man-ager’’; at least once, he told her she was ‘‘a dumb ass woman.’’Again in front of others, he suggested that the two of them ‘‘go

to the Holiday Inn to negotiate [Harris’] raise.’’ Hardy ally asked Harris and other female employees to get coins fromhis front pants pocket He threw objects on the ground in front

occasion-of Harris and other women, and asked them to pick the objects

up He made sexual innuendos about Harris’ and other women’sclothing In mid-August, 1987, Harris complained to Hardyabout his conduct Hardy said he was surprised that Harris wasoffended, claimed he was only joking, and apologized He alsopromised he would stop, and, based on this assurance Harrisstayed on the job.8

The lower courts had found that Harris did not make a claim forsexual harassment based on a hostile work environment In a unani-mous decision, the Supreme Court disagreed.9 Typically, courts giveremedies only when the plaintiff can show that he or she sufferedactual harm In the Harris case, however, the Supreme Court foundthat what was done to Harris was wrong even though she was unable

to prove tangible psychological injury The Court unanimously foundthat a reasonable person would perceive the environment in whichHarris worked as ‘‘hostile and abusive.’’10As Justice O’Connor put it,

‘‘Title VII comes into play before the harassing conduct leads to anervous breakdown.’’ What characterizes gender disparagement is the

stress that ‘‘can and often will detract from employees’ job ance, discourage employees from remaining on the job, or keep themfrom advancing their careers.’’11

perform-What Teresa Harris endured is thus quite different from what wasinflicted on Mechelle Vinson Vinson’s privacy regarding what shechose to do in her own intimate life was violated Harris sufferedpublic humiliation Vinson suffered from Taylor’s radically misplacedsexual desires; Harris did not But Harris’ tormentors could notescape on that ground, for, as Justice Antonin Scalia said in anothercase, ‘‘[H]arassing conduct need not be motivated by sexualdesire.’’12

‘‘A CODE OF WORKPLACE CIVILITY’’

The lawyers for the company in the case just cited, involving assment of a gay male, said that civil rights laws were not designed

har-to create ‘‘a general civility code for American business.’’ Trueenough Courts have to enforce the statute that Congress passed,and that statute does not prohibit all verbal or physical harassment

in the workplace (How could it?) The statute prohibits only crimination, meaning disadvantageous terms of employment.13 Butjust because the federal courts can’t get involved in a code of civilityfor the workplace doesn’t mean that businesses shouldn’t do sothemselves Unless the victim can prove that she (or he) has experi-enced ‘‘unreasonable interference with work performance,’’14 thelaw will not give redress Again, this does not mean that commentsthat don’t rise to the level of a civil rights violation are OK They’renot It just means that they don’t violate the Civil Rights Act of

dis-1964 One way to look at this is to say that this is the point wherelaw ends and ethics takes over Another way is to note that there’s ano-bright-line test that defines what crosses the line into the legallyunacceptable The more problematic the conduct, the more likely it

is to land the company in legal trouble But conduct doesn’t need toviolate Title VII to be unacceptable

From what we have seen so far, we can distinguish three situations.There are outright invasions of privacy, characterized by a request—

or a demand—for sexual favors There is a culture of ridicule thathumiliates individual women and individual gay men And there is thelow-level banter that inevitably goes on between good-natured, and

not-so-good-natured people, as they go through their days doing theirjobs Distinguishing the first two from the third in practice can betough.

What’s even tougher is making decisions when people cross theline into inappropriate conduct not by content but by repetition.Suppose a male boss, one day out of the clear blue sky, says to hisfemale secretary as he walks into the office after a breakfast meeting,

‘‘Hey, that’s a pretty dress you’re wearing today.’’ While I know thatsome people say that any comment about the appearance of a person

of the opposite sex is out of bounds in the workplace, this commentwill seem innocuous to most people Suppose, instead, that the com-ment is ‘‘My, you look sexy today.’’ It’s possible that some womenmight view the remark as a compliment, but I think most women intoday’s workplace would be offended, and rightfully so Note thatthis comment is inappropriate for the workplace, even when it’s not

a part of a pattern of making advances To say it’s inappropriate,however, doesn’t say that the courts can do much about it If awoman considered bringing a suit about such a comment, any lawyershe approached would laugh her out of the office If somehow thecase got filed, any court would dismiss the case in a New York min-ute It’s too small, too trivial, and not the business of the busy fed-eral courts If you were the manager of the man who made theremark, you might let it pass, or advise him in a low-key way toavoid such comments in the future

But suppose a boss made the same comment a couple of weekslater Then again Then on a regular basis Then every day You cansee where I’m going Frequency matters Especially when theremarks start to look like a man is forcing his attentions on awoman, they cross the line From the purely legal viewpoint, youcan never, in advance, be precisely sure where that line is (That’swhy it’s a mistake to think that the law provides a bright line in thesand, on one side of which you’re safe.) Because you’re not going toknow where, down the road, a court or jury will draw the line, thesmart move is to make it clear that the company won’t permit com-ments such as ‘‘you look sexy today’’ to continue You won’t falldown the slippery slope if you don’t get on it

I want to stress that there’s another reason why repetition of suchcomments should be out of bounds A pattern itself can give offense.When a woman finds herself gritting her teeth and wondering as shewalks into the office, ‘‘What’s he going to say today?’’ there’s a real

problem In Oncale v Sunflower Offshore Services, Inc., the case aboutharassment of a gay male, the Supreme Court was clearly on themark when it recognized that there are ‘‘genuine but innocuous dif-ferences in the ways men and women routinely interact with mem-bers of the same sex and of the opposite sex.’’15 Comments that giveoffense, by definition, aren’t innocuous Comments that might giveoffense can turn out to be innocuous, but they might not Yet a com-ment that, in isolation, might be on the borderline, might becomeunquestionably offensive if regularly repeated One day’s compli-ment, regularly repeated, can become, ‘‘I sure wish he’d stop check-ing me out every day when he walks in the office.’’ Practicalworkplace civility can’t tolerate isolating a single arguably inoffen-sive comment when it’s part of an offensive pattern.

ADDRESSING SEXUALHARASSMENTPROBLEMS

When comments cross the line from the innocuous to the sive, whether because of their content or their repetition, there’s notmuch that can be said in their defense There are two sides to manyquestions, but not this In a business, however, there’s an additionalissue What’s the company’s responsibility? The usual case doesn’tinvolve the company encouraging the harassment—though the lawfirm whose activities I discussed at the beginning of this chapter did

offen-so Rather, the question is, what’s the company’s responsibility where

it permits a hostile work environment to flourish? Let’s look at twocases of sexual harassment and use the foursquare protocol outlined

in Chapter 3 to see how management can compassionately but fairly

go about its job of making the workplace free of sexual harassment.Here’s a variation on a true story, with names and the kind ofbusiness involved changed to preserve anonymity Judy was a mid-level manager in a financial services/brokerage firm Jim was herboss One afternoon around 5:30, Judy was finishing up some paper-work and getting ready to leave She had a dinner date for which shedidn’t want to be late There was a knock on her door and Jimentered He sat on the opposite side of the desk and talked about acouple of accounts All of a sudden, Jim lurched around the deskand kissed her Not a peck on the cheek, but the kind of open-mouthed kiss on the lips that Judy reserved for the special man inher life Jim told her that he’d been trying to resist her but couldn’t

any longer, and he asked her to dinner When she said she had plans,

he insisted on the next evening She wanted to refuse, but felt shecouldn’t

Judy was shaken and angry She felt violated She hadn’t beenattracted to Jim before, and after this—yuk! She thought about send-ing him an e-mail telling him to forget the dinner, but then remem-bered the promotion to assistant VP that she was up for She hadworked for Jim for long enough to know that he was relentless when

he wanted something, and vindictive She worried that if she celed dinner, Jim would torpedo her promotion, which he clearlyhad the power to do She was afraid

can-Judy went to dinner with Jim She was uncomfortable, but shecouldn’t honestly say he was obnoxious or gross or vulgar He came on

to her, but in a gentlemanly way The scene in her office was notrepeated Jim clearly wanted some kind of relationship; Judy didn’t.She felt trapped They began going out They began sleeping together.Finally, after about four months, Judy felt she couldn’t take it anymore She couldn’t eat properly She lost her will to exercise Forthe first time in her life she suffered from insomnia She felt dirty.The last thing she wanted to do was to get a lawyer She liked herjob, or did before the thing with Jim started Reluctantly, she went

to senior management

Suppose you’re the person Judy approached Doubtless you wouldempathize with Judy But you’d have to have your guard up Jim is apower in the company You know that ‘‘he-said, she-said’’ stories are,well, he-said, she-said situations And, in a case like this, there is thepossibility of a lawsuit—an expensive, time-consuming, and likelyembarrassing lawsuit Judy’s problem, and Jim’s problem, is nowyour problem and the company’s problem

PUT THE FOURSQUAREPROTOCOL TO USE

The foursquare protocol outlined in Chapter 3 provides a ture that you can use First, you need to get the facts That soundseasy, at least in principle It’s likely, however, that this may turn out

struc-to be dicey and unpleasant But there’s no substitute It’s not just that

it will be a question of he-said, she-said, where finding out the truthwon’t be easy What he says and she says are likely to involve infor-mation about other people’s private lives you’d just as soon not

know Unfortunately, there’s no substitute for it It’s a brute fact thatwomen largely believe that their claims of sexual harassment are dis-believed and devalued by male executives; and men frequentlybelieve (or claim to believe) that women invent, or at least embellish,their stories It seems almost certain that women are generally right

in such cases Indeed, there’s reason to believe that lots of womendon’t report incidents because, on top of the humiliation of the harass-ment, they’ll have to endure the humiliation of not being believed.But, as defense lawyers will tell you, this isn’t true 100 percent of thetime Sometimes women do create stories or exaggerate whatoccurred What this means for senior management is that you have tosort out what really happened Here, even if Judy told you as themanager exactly what we’ve described, your job wouldn’t be over.You’d have to get Jim’s side of it, and, at a minimum, he would likely

be quite defensive But, as I’ve said, the job needs to get done Itwon’t be the last difficulty you’ll have achieving closure in this matter.Once you’ve got a clear idea of what happened, it’s probably a goodidea to consult your in-house counsel or the outside lawyer the com-pany uses on employment matters Your company, in fact, may have aprotocol requiring such consultation Sexual harassment is no longer amatter simply for the business executive We’ve said that Judy doesn’twant to call a lawyer and, initially, most people don’t This frequentlychanges where management isn’t sufficiently responsive and empa-thetic to the woman who has endured what Judy did Even if Judy saidshe hadn’t called a lawyer, she could change her mind And, to statethe obvious, an employer can be held liable under Title VII when one

of its supervisors engages in the kinds of acts that Jim committed here.The advice counsel gives will provide you a good sense of whetheryou’re legally exposed or not Regardless of that advice, if Judy hascome to you and the company hasn’t been sued, you have to figureout how to respond to what she has suffered The second prong ofthe foursquare protocol invites you to look at two things: how man-agement has treated cases of sexual harassment before and whetheremployees have felt that such treatment has been fair—that is, whathas been the content of what I called the employees’ collectiveongoing conversation about the way management has resolved ethi-cal issues If the company is anything but a start-up, there are likely

to have been multiple incidents, some more invasive than others,some where there have been ‘‘official’’ decisions, and some a part ofthe company’s collective consciousness, arising from a mountain of

proverbial conversations at the watercooler Let’s play out a possiblescenario.

A Company’s Collective Memory

Let’s assume that one of the stories in the company’s collectivememory involved a superstar young executive named Paul Paul hadeverything going for himself He was smart, well educated, innova-tive, and hardworking He could put together complex financingarrangements whose subtlety only the most senior people couldmatch Like Jack in Chapter 1, Paul’s only weakness was the women,

or more precisely, the relatively powerless women in clerical or puter support positions whom he encountered every day He calledthem ‘‘honey’’ or ‘‘hot stuff,’’ or the like, and would comment ontheir bodies and their clothes, especially if the tops were low-cut orthe skirts short To one secretary in particular he’d say, ‘‘I bet you’resomething else in bed.’’ But, at least as far as anyone knew, he neverasked any of the women out and never got involved with any in theway Jim got involved with Judy

com-In another instance, in the company’s recent past, a male vicepresident named Ted became interested in an account executivenamed Petra Ted was single, Petra was getting a divorce, and shewas interested as well They began having lunch and e-mailing regu-larly They began seeing each other frequently in the evening and,after a time, were sleeping together After a few months, Petra began

to have doubts She told Ted she wanted to break it off

Ted was genuinely upset—and quite furious When Petra wouldn’trespond to his entreaties to get back together, he began to takeaction Her office was moved to a smaller one, where the air condi-tioning didn’t work very well in summer and the heat was overpow-ering in winter She lost her terrific assistant and was assigned toSylvia, well known for doing her nails and eBay, and little else Butthe crisis erupted when Petra was passed over for a promotion thatTed had told her ‘‘she was in line for.’’ After weeks of e-mail silencefrom Ted, she found a message, sent from his home computer tohers, saying simply, ‘‘It cost you Now we’re even.’’

Legal action against Paul would have been unlikely Though hisconduct was offensive, it’s hard to imagine that a plaintiff’s lawyerwould think that a court case could generate an award of damagesthat would have interested him or her in taking the case Petra’s case

was different Ted’s e-mail, in particular, would make a defense yer (and the company’s insurance company) cringe, and a plaintiff’slawyer salivate Let’s suppose, however, that Petra hadn’t been pre-pared to endure the publicity that taking her case to court wouldentail So neither Paul’s nor Ted’s case led to litigation.

law-Suppose that management learned of Paul’s antics from Marybeth,the secretary to whom Paul would make his comments about hisfantasies about her in bed She had told him to stop; he didn’t; shetold him she’d go to management if he didn’t stop; he didn’t; shekept her promise

The executive VP in Paul’s division was given the responsibility oftalking to Paul A kindly older man, a gentleman of the old school,the executive VP gave Paul a milquetoast version of what Marybethhad said, and what else HR had learned in its discrete investigation.Paul was apologetic He said he hadn’t realized, said he was onlyteasing, thought it was all in good fun, meant no harm, etc The ex-ecutive VP nodded Paul said it wouldn’t happen again The execu-tive VP said the matter was closed

When it came time for year-end bonuses, the ‘‘discretionary’’ tion of Paul’s, that is, the part not tied to achieving specific perform-ance goals, was zero He came up for a raise in March, and wasgiven the lowest possible He polished off his resume and was work-ing for a competitor by Memorial Day

por-Things went down a little differently for Ted Ignoring her sister’sadvice to get a lawyer, Petra printed Ted’s ‘‘now we’re even’’ e-mailand marched into the chairman’s office She demanded to see himthen and there When making her cool her heels in the receptionarea outside his office for an hour or so didn’t work, he agreed tosee her Petra told him the whole story She gave him a hard copy ofthe e-mail

No one in the company ever knew what actually transpired whenTed met with the chairman It was widely known, however, that Tedwas given a generous early retirement package, including a consult-ing contract for three years that paid him one half of his annual sal-ary, and for which he didn’t do a lick of work

In our imaginary company, whose history included these two pastincidents of sexual harassment, the take in the company’s ongoingconversation on what Paul did, and what happened to him was this:Paul was out of line; nobody doubted that Even the men who them-selves were sometimes inclined to time warp to the 1950s know, in