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 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.