Allan Holmes’ Recent Op-Ed “What the Law Has to Say about Sexual Harassment”

Allan Holmes was recently featured in the Post & Courier in an op-ed regarding the current legal hot topic of sexual harassment in the workplace.  You can find the article from January 7, 2018 here.  The text follows:


As a young lawyer, I filed one of the first workplace sexual harassment cases in Charleston. When opposing counsel got the pleadings, he called and asked if I were a communist. Why else would I attack the inalienable right of a corporate manager to have sex with his female subordinates? Really.

Since then, I’ve represented many employers and employees in harassment cases. The pendulum has swung. Sexual harassment continues, but lawyers, judges, and juries view it as unlawful, and in many cases, harassers are punished and their victims compensated. This is for the better. Sexual harassment can cause horrific, permanent injury to its victims.

When sexual harassment cases are adjudicated by a court, fairness is the goal. Harassers are reviled, but there is little sympathy for complainants who have slept on their rights — pun intended — and in court, no class of witness is assumed to be incapable of lying. There’s an orderly, judicially monitored trial which results in a jury’s findings of fact.

However, while courts sometimes decide elections — as Al Gore would remind us — most elections are decided by voters who vote based upon opinions. Of late, allegations of sexual harassment are shaping public opinion — in elections and elsewhere. A legal definition of sexual harassment in the workplace might serve to guide the opinion making process.

There have always been laws prohibiting the most egregious forms of sexual harassment: criminal prohibitions of rape, pedophilia, statutory rape, and similar crimes in which the victim either did not, or legally could not, voluntarily submit to the sexual misconduct.

Modern workplace sexual harassment differs because the question of involuntariness — in the legal sense of having no alternative but submission — does not determine whether a person has been sexually harassed. Rather, the modern standard only requires a finding that sexual conduct is unwelcome to the victim, and that the harasser knows, or should have known, that the harassment is unwelcome. Not all such conduct is actionable. It must be so objectively offensive as to alter the conditions of the victim’s employment. The law prohibiting this kind of sexual harassment did not come easily, or overnight, and it is fraught with nuance.

Sexual harassment in the workplace became unlawful and subject to civil law remedies after years of judicial interpretations of Title VII of the Civil Rights Act of 1964. When Title VII was enacted, it prohibited discrimination on account of sex. However, sexual harassment had not yet been identified as a form of unlawful sex discrimination. Thirteen years passed before a federal court of appeals held that sexual harassment could constitute unlawful sex discrimination, and the U.S. Supreme Court first recognized the equivalency in 1986 with the landmark case Meritor Savings Bank v. Vinson.

“Unwelcome” sexual advances are prohibited by Title VII, but whether a sexual advance is unwelcome is not left entirely to a complainant’s subjective feelings. Thus, a supervisor may ask a subordinate out for drinks, or compliment the subordinate’s appearance, or “flirt” with a subordinate, and this is not — in and of itself — proof of an unwelcome advance. If the subordinate finds the conduct unwelcome, the subordinate needs to make this clear. If there’s fear of addressing this directly with the supervisor, most employers have a well-publicized, anti-harassment policy which explicitly promises protection from reprisal, and provides opportunities to complain other than through the person responsible for the unwelcome conduct. Title VII itself specifically outlaws reprisal.

Except in the most aggravated cases like those involving extortion or other outrageous conduct — reports of the Weinstein matter come to mind — it’s difficult to sustain a claim that a relationship was unwelcome because the complainant “felt” it inappropriate, but said or did nothing to signal the feeling. In such a situation, how can one decide whether the relationship was actually unwelcome, or just a poor decision which the employee later came to regret. People are attracted to other people and have sexual relationships for all sorts of motives: power, money, status, lust — not to mention love. Title VII doesn’t outlaw these motivations, nor does it require that the parties to a relationship have equal standing in any of these categories. It simply outlaws subjecting employees to unwelcome sexual conduct.

Workplace harassment is now unlawful, period. But, adults in the workplace may freely and lawfully choose to form relationships. Employees can’t be lawfully required to accept unwelcome sexual conduct as a term of employment. At the same time, anti-harassment law doesn’t infantilize employees by regulating their intimate choices. These choices are theirs to make — for better or for worse. Judge Posner of the Seventh Circuit Court of Appeals succinctly explains. “Romantic encounters, including romantic encounters between supervisors and supervised, are a fact of the workplace. Title VII does not purport to forbid them, and would be quixotic if it did. Many happy marriages have grown out of such encounters.”

Allan R. Holmes is an attorney in Charleston.