I am in awe of the courage exhibited by the women of the #MeToo movement. As those brave women know all too well, women who are subjected to sexual misconduct in the workplace legitimately fear being retaliated against for complaining about it. I would like to suggest a potentially effective way that a male co-worker who becomes aware that a female colleague has been subjected to sexual misconduct can help minimize the risk of retaliation to his female colleague: by reporting the sexual misconduct himself through company channels, and then to the EEOC via EEOC Policy Statement No. N-915.048 if, as unfortunately happens all too often, the employer tries to cover up the sexual misconduct rather than stop it.
Although it might sound counterintuitive that a male co-worker would have standing to assert a claim if a female colleague is being subjected to sexual misconduct, the largely unknown EEOC Policy Statement at issue specifies unequivocally that he does. Perhaps even more importantly, the ridiculous contention of sexual predators such as movie producer Harvey Weinstein, music mogul Russell Simmons, celebrity chef John Besh, TV host Matt Lauer, and their ilk that the women accusing them of sexual misconduct “consented” to it is no defense, even if it were true (which it almost never is). EEOC Policy Statement No. N-915.048 provides in pertinent part that “both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors.”
This is because, as the EEOC Policy Statement goes on to say, “[i]n these circumstances, a message is implicitly conveyed that the managers view women as ‘sexual playthings,’ thereby creating an atmosphere that is demeaning to women.” Significantly, the EEOC Policy Statement concludes by repeating the key point that “[b]oth men and women who find this offensive can establish a violation if the conduct is sufficiently severe or pervasive ‘to alter the conditions of [their] employment and create an abusive working environment.’”
As the California Supreme Court bluntly put it in the most famous case ever decided about EEOC Policy Statement No. N-915.048, Miller v. Department of Corrections, the message in the workplace should not be that women must, quote, “‘F’ [their] way to the top.” And although the EEOC Policy Statement mandates that a claim asserted by a male co-worker is actionable only if the “managers” who are engaged in sexual misconduct are sending the message in the workplace that sexual favors were exchanged for “favoritism” in the employment relationship, that is usually an easy fact to prove. Indeed, Matt Lauer’s despicable modus operandi was to make it clear to the young women he found attractive at the Today Show that he could help advance their careers if they submitted to his sexual advances.
The 83 (and counting) accusers of Harvey Weinstein indicate that Weinstein used the same playbook that Lauer did. For example, actress Heather Graham wrote in an essay in Variety magazine that Weinstein insinuated that he would cast her in one of his upcoming films if she had sex with him (Weinstein’s version of the disgraceful “casting couch” from the “golden” days of Hollywood).
The time for tolerating sexual misconduct in the workplace is over. The media has been reporting on an almost daily basis about the downfall of powerful men accused of abusing their power to prey upon vulnerable women for sex. EEOC Policy Statement No. N-915.048 provides male co-workers with a way to help our female colleagues in their courageous battle for a safe and equal work environment. Our female co-workers have been shouldering the burden of sexual misconduct by themselves for long enough.
Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
