{"id":12008,"date":"2018-05-01T04:49:45","date_gmt":"2018-05-01T04:49:45","guid":{"rendered":"http:\/\/www.lifeandnews.com\/articles\/?p=12008"},"modified":"2018-05-02T04:53:45","modified_gmt":"2018-05-02T04:53:45","slug":"nikes-metoo-moment-shows-how-legal-harassment-can-lead-to-illegal-discrimination","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/nikes-metoo-moment-shows-how-legal-harassment-can-lead-to-illegal-discrimination\/","title":{"rendered":"Nike’s #MeToo moment shows how ‘legal’ harassment can lead to illegal discrimination"},"content":{"rendered":"

Elizabeth C. Tippett<\/a>, University of Oregon<\/a><\/em><\/span><\/p>\n

Nike\u2019s having its #MeToo moment<\/a> \u2013 and it illustrates plainly what\u2019s still missing from our discussion of sexual harassment in the workplace. <\/p>\n

Women at Nike, fed up with the status quo, recently undertook a covert survey asking about sexual harassment and gender discrimination, which eventually reached<\/a> the CEO of the world\u2019s largest sports brand. Six top executives have resigned or announced their departure.<\/p>\n

Nike employees interviewed by The New York Times described being marginalized and passed over for promotion. One recounted a supervisor that called her \u201cstupid bitch.\u201d Another reported an email from a manager about an employee\u2019s breasts. There was the manager who bragged about condoms in his bag and racy magazines on his desk. Oh, and of course there were trips to strip clubs, tacked on to the end of staff outings.<\/p>\n

This happened over a period of years. All the while, human resources sat on its hands. The managers kept their jobs. The complaints piled on.<\/p>\n

In some ways, it\u2019s the familiar story of how companies have long turned a blind eye to harassment. But it also illustrates, perhaps better than any other example from the #MeToo era, how harassment can be a symptom \u2013 and precursor \u2013 of workplace discrimination.<\/p>\n

And, as I explain in a forthcoming<\/a> article in the Minnesota Law Review, understanding that link is critical for companies hoping to improve upon past mistakes. <\/p>\n

Easy vs. hard<\/h2>\n

The #MeToo movement has rightly brought attention to questions of sexual harassment and assault. The types of cases that result could be divided into two buckets \u2013 what in law school we would label \u201ceasy cases\u201d and \u201chard cases.\u201d <\/p>\n

One of the first thing students learn in law school is that \u201ceasy cases\u201d<\/a> refer to those in which the facts are really extreme \u2013 where a rule clearly applies or it doesn\u2019t. Here, that would mean egregious examples of sexual harassment, such as allegations of Matt Lauer\u2019s lewd and aggressive behavior<\/a> toward subordinates.<\/p>\n

\u201cHard cases\u201d refer to situations where it\u2019s harder to figure out whether the parties involved have violated the rule. There might be arguments on both sides, and it might be hard to predict how a court would rule. Or \u2013 a favored trap on the bar exam \u2013 the conduct might seem really bad as a matter of common sense but doesn\u2019t meet the technical requirements of the legal rule.<\/p>\n

The stories coming out of Nike are the hard cases. They do not clearly meet the legal standard for workplace harassment.<\/p>\n

The problem of not-quite harassment<\/h2>\n

The law governing workplace harassment is quite unforgiving. The offensive conduct must be so severe or frequent<\/a> that it creates an abusive working environment. The conduct must also be motivated by the victim\u2019s membership in a protected category, like their gender or race.<\/p>\n

Some legal scholars<\/a> have argued courts have been too unforgiving in applying this test and that it should be brought closer<\/a> to commonsense understandings of harassment. <\/p>\n

Lawyers and human resources experts have long known that the legal standard for harassment is incredibly high. So companies worked around it by defining harassment very broadly<\/a> in their policies. This gave companies the power (but not the obligation) to punish employees for violations of the policy. But pre-#MeToo, it seemed companies chose not to act<\/a>, even when they had the power to do so.<\/p>\n

As we now know, this just-do-nothing ethos was a terrible judgment from a moral and public relations standpoint. And while companies may have been correct that a claim may not have been harassment, legally speaking, they completely overlooked their potential liability for future discrimination claims.<\/p>\n

Here\u2019s why. A supervisor\u2019s derogatory comments about an employee\u2019s gender, race or religion may not amount to a harassment claim. But they are a smoking gun in a later discrimination claim.<\/p>\n

The discrimination blind spot<\/h2>\n

Discrimination claims are all about the supervisor\u2019s frame of mind<\/a> when he or she made a decision about an employee promotion, compensation or firing. But since we can\u2019t read someone\u2019s mind, the only thing we have to go on is their comments and behavior.<\/p>\n

If a supervisor makes objectifying comments about a woman\u2019s body and then later denies her a promotion, those comments may later be used<\/a> to show his decision was biased. <\/p>\n

The Nike story offers a great illustration of this principle. A manager who views women primarily in terms of condom consumption<\/a> is probably not also thinking of them as a potential vice president candidate. Nevertheless, it is unsurprising to me that Nike\u2019s human resources department seemingly failed to identify the problem as discrimination when employees complained.<\/p>\n

And that\u2019s because, in all likelihood, the discrimination had not yet happened. When the woman complained, it probably wasn\u2019t yet about a lost promotion, unfair compensation or a termination. It was \u201cjust\u201d a comment.<\/p>\n

Of course, to the employee, it was never just a comment. She would have been keenly aware that her career was in her supervisor\u2019s hands. And that he could no longer be trusted. <\/p>\n

This is not really a rare occurrence for women in the U.S. In representative samples, around 25 percent to 40 percent of women report<\/a> having experienced unwanted sexually based behaviors at work, and 60 percent said they encountered hostile behaviors or comments based on their gender.<\/p>\n

It\u2019s as though the employee can see the gun and anticipates the bullet to come. But all human resources sees is a weak harassment complaint unworthy of intervention.<\/p>\n

A better way<\/h2>\n

The #MeToo movement has generated discussion around \u201czero tolerance\u201d harassment policies<\/a>, containing perhaps the implied threat that even minor transgressions of the policy will be met with strong punishment. <\/p>\n

But because harassment policies already cover the waterfront, they don\u2019t really provide meaningful behavioral guidance. A Pew Research study<\/a> published in March found that half of all adults surveyed thought that #MeToo made it harder for \u201cmen to know how to interact with women in the workplace.\u201d <\/p>\n

I actually think a more sustainable approach \u2013 which actually better aligns with a company\u2019s true legal risks \u2013 would be to beef up anti-discrimination policies. <\/p>\n

These policies would explain that supervisors are placed in a special position of trust regarding their subordinates\u2019 careers and that supervisors act as the company\u2019s proxy in carrying out the employer\u2019s duty to provide equal employment opportunities. <\/p>\n

When a supervisor engages in low-level harassing behaviors or makes derogatory comments based on a employee\u2019s gender, race or religion, it is a breach of that trust.<\/p>\n

\"TheAnd it is the company\u2019s duty to make it right.<\/p>\n

Elizabeth C. Tippett<\/a>, Associate Professor, School of Law, University of Oregon<\/a><\/em><\/span><\/p>\n

This article was originally published on The Conversation<\/a>. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Elizabeth C. Tippett, University of Oregon Nike\u2019s having its #MeToo moment \u2013 and it illustrates plainly what\u2019s still missing from our discussion of sexual harassment in the workplace. Women at Nike, fed up with the status quo, recently undertook a covert survey asking about sexual harassment and gender discrimination, which eventually reached the CEO of […]<\/p>\n","protected":false},"author":44,"featured_media":12009,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[277],"tags":[3473,1184,2575,4095,1516,3628],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/12008"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=12008"}],"version-history":[{"count":1,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/12008\/revisions"}],"predecessor-version":[{"id":12010,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/12008\/revisions\/12010"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/12009"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=12008"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=12008"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=12008"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}