'Alternative Facts': Workplace Sexual Harassment Is Now Legal, And 'We Can Say Fag Again'

Sorry, no -- recent electoral politics do not give license to harassers or employers who look the other way.

sexual harassment boss“Let me take you down
‘Cause I’m going to Strawberry Fields
Nothing is real and nothing to get hung about
Strawberry Fields forever”

— “Strawberry Fields Forever,” by John Lennon and Paul McCartney

Welcome to the alt-real world, where nothing is real. Or not true. Or maybe true, but not real.

Let’s examine whether workplace sexual harassment, a sub-species of sexual discrimination, still violates Title VII – as it did yesterday, before “alternative facts” entered our lexicon. And whether it will tomorrow.

We have a new reality these days with a new paradigm. Were we always told that we are entitled to our own opinions but not our own facts? Not anymore! We are now truly free to indulge any facts we want!

It’s a new dawn! (Or an old dawn? Like 1955?)

Go to Your Room, Opie! I Will Not Have You Lying To Your Aunt Bea!

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I read in today’s Washington Post the following:

`Love it. We can say Fag again.’ That comment, from ‘Tired-n-Ariz,’ was posted on a CBS news story about the disappearance of the LGBT rights page from WhiteHouse.gov shortly after Donald Trump took the oath of office on Friday. In fact, everything on that site was moved and archived on a new Obama website, and was replaced by the Trump site, which includes no references to LGBT rights. (Or civil rights. Or climate change.) It’s clear that there’s a new sheriff in town, and that LGBT rights aren’t on that gunslinger’s list of priorities.

OK, back to sexual harassment and alt-reality.

Sexually assaulting a female employee — according to the likely next attorney general, who publicly gave the issue long and hard thought — is a criminal act. Maybe. Likely. In our alt-reality world, sexual assault is not sexual assault, and groping is not groping – it’s all a mean mean meanie media con job. Anyway, boys will be boys!

For example, the EEOC recently settled a race and sex harassment lawsuit alleging that two “male employees subjected the women to offensive race and sex-biased comments, including racial epithets and remarks directed toward one of the women, who is multiracial, and overtly sexual statements; groping one woman’s breasts, and attempting to physically intimidate the two women.”

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Everyone says that the whole thing is bogus. Did you see it happen? I didn’t. I heard that these women just made up these charges – and if they didn’t, which they likely did – did you see how ugly they were?

The nerve: an EEOC District Director said, “This settlement should remind employers that they have an obligation to take prompt and effective measures to stop harassment in the workplace. If the employer instead does the wrong thing and terminates employees who complain about harassment or discrimination, then EEOC will take action.”

Not anymore!

Golly, Dad! Wally Said All The Guys Are Doing It!

And another case was settled by the EEOC – apparently a restaurant owner sexually assaulted a female employee, which led “others at the restaurant” to do the same thing. The EEOC said “The restaurant owner also engaged in unwelcome sexual touching of other female employees and made sexually offensive comments, including requests for sexual favors, to female employees. …”

I don’t believe it – not in my alt-universe. And even if “true,” what’s wrong with that?

We’re Not In Kansas Anymore – or Maybe We Are!

Back in the real universe, or perhaps call it “the old real” universe, if you stop watching Mad Men and quit pining for the old real America of Leave It To Beaver and Ozzie and Harriet, you’ll know that you can’t go home again (to the ‘50’s). Things change no matter how hard you try, like King Canute, to stop the incoming tides.

Sexual harassment is illegal – it was yesterday, it is today, and it will be tomorrow. And you can’t grope a female employee – still. Or make unwanted sexual comments or gestures. She’ll likely take a well-aimed swing at you before she files a well-deserved harassment charge with (if the EEOC is defunded or defunct) the state or county or city equivalents of the EEOC. They all have similar anti-discrimination laws on the books (many of them more stringent than current federal laws). New York State and City are two real examples. Really. You can look it up.

It is not likely that any of this will change – and employers are flirting with danger – and liability – if they see recent electoral politics as giving license to harassers or employers who look the other way or those who retaliate against the harassed.

And they are making a big mistake if they give up on or reduce harassment training for all – workers and managers – or forget that top-down behavior and actions make a difference in the workplace, or forget to take a “zero-tolerance” position as to harassment. Juries do not like workplace harassment and will continue not to like it. And neither should you.

You let your guard down or become complacent as to harassment in the workplace at your peril.

So whatever universe you travel in, and whatever alt-facts you subscribe to, remember: the arc of the universe (any universe) bends towards justice – and until there is an alt-karma, you will be hoisted on your own alt-petard.


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.