Two Feminist Critiques of the Affirmative Defense in Hostile Environment Cases
According to Title VII, it is
unlawful for an employer to “classify his employees…in any way which would
deprive or tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual’s…sex.” Sexual harassment in
the workplace is subject to a hostile environment claim when unwelcome,
sex-based behavior is severe and pervasive enough to limit an employee’s equal
opportunity to participate. Thus, Title
VII is violated when workplace sexual harassment creates a hostile environment. However, when a court finds that a hostile
work environment does exist, the employer then has the opportunity for an
affirmative defense. There is no
employer liability if it can shown “that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and…that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise,” (Faragher
v. City of Boca Raton, CB p. 994).
Anti-Subordination
Theory:
The existence of an affirmative defense for an employer contradicts Title VII’s aim of eliminating discrimination in the workplace in that it potentially allows employers to escape liability without requiring that they genuinely seek to end sexual harassment. Quite often, businesses will put an antiharassment policy in place more to defend themselves from expensive lawsuits than to actually remedy the problem of harassment in the workplace. It is perhaps necessary for the sake of justice that an employer be able to defend against the claims of completely unreasonable or irrational employees, but the wording of the requirements for an affirmative defense serves somewhat to perpetuate an assumption that the (typically female) complainant is quite possibly oversensitive and overreactive to harmless workplace behavior. It also tends to measure harassment victims against the same standard of reasonability that is applied to the employer’s care in attempting to prevent and correct harassing behavior. As employers tend largely to be male, this standard tends to be male. (Note that the reasonability standard for finding certain behavior to be objectively severe and pervasive is not necessarily identical to the standard for judging an employee’s failure to take advantage of opportunities to correct the harassing behavior.)
The affirmative defense can simply amount
to a more sophisticated way of claiming the alleged harassment victim was being
overemotional and unreasonable (that is, being stereotypically female) in
failing to take “advantage” of the opportunities provided by the employer. These so-called opportunities frequently
require that a person subjected to harassment notify a (male) superior so
corrective action may be taken. This
requirement assumes that a woman would be every bit as comfortable talking to a
male superior about issues directly pertaining to her sex as a male co-worker
would be. But a likely reason she has a
problem with harassment in the first place is that a male superior talks to her
about issues directly pertaining to her sex.
Irrespective of their places in the workplace hierarchy, men talking to
each other about sex are generally, though certainly not always, doing so on
somewhat equal footing. With regards to
sex, one male is typically the equal of another, whether or not one supervises the
other at work. But when men and women
talk about sex, there is no underlying equality to counter the other effects of
a difference in employment positions. A
continuing history of male dominance and female subordination makes it
difficult for many women, even reasonable ones, to feel comfortable bringing up
issues of sex with those who are in a dominant position both sexually and
within an employment hierarchy. The affirmative
defense thus may serve to facilitate the continuation of sexually harassing
behavior by on the one hand encouraging programs that make it difficult for
victims to comfortably address the problem and on the other hand allowing
employers who create such programs to escape liability despite failing to
actually reduce or eliminate sexualized hostility in the workplace environment.
Anti-Essentialist Theory:
The problem with the existence of an affirmative defense for employers facing hostile environment lawsuits is not merely that the standard of reasonability assumes a male norm. That there is only one single standard in the first place means an employer can escape liability whenever a particular employee is different enough from that standard to be deemed unreasonable when that standard is applied. Simply moving from a “reasonable (male) person” standard to a “reasonable” woman standard may help one group of women successfully file harassment claims, but it will do little to address the differences between that and every other group of women. If a reasonable woman standard is applied, employers may be pushed to create antiharassment programs in which the first person to whom a harassed employee would complain would be of the same sex as that employee, but if the employee is black and the woman to whom she is supposed to bring her complaint is white, the employee may (reasonably) believe that little will be done to curb harassing behavior by another white person. And if the black employee is in addition being harassed by a white female superior, her reluctance to complain to one white woman about another white woman may be even more understandable. To apply a single “reasonable woman” standard is to suppose that there is some single way in which all women experience the world. When it is straight white people applying this standard, it is the experience of straight white women that is assumed to apply to all women. In the words of Angela Harris, this “essentialist approach recreates the paradigmatic woman in the image of the white woman.”[1]
If it makes sense to require that
the standard reasonable person tracks the sex of the complainant, then it can
be no less sensible to require that the standard also track the race, sexual
orientation, and age of the complainant.
Expanding the requirement to all four of these characteristics would
still involve the assumption that all middle aged Hispanic lesbians experience
the world in one single way. Some
individuals from within each group will have had different experiences with
previous employers, and possibly with previous sexual harassment claims, that
would result in a perfectly reasonable belief that going through the “proper
channels” within the workplace may not accomplish anything at all, apart from
prolonging harassment and postponing the individual’s filing of a legal claim
against the employer. While it may be
less practical in the courtroom to address more than a small discrete set of a
complainant’s characteristics, doing so would be the only way to avoid the risk
of lumping an employee into a category for which behavior would be seen as
unreasonable that is reasonable for the employee because of characteristics not
tracked by the court’s applied standard.
For an affirmative defense to be at all equitable, courts must not
interpret the Faragher decision as requiring them to ask, “Would a
standard reasonable person have acted thus?” Rather, they must truly ask, “Was this
particular person reasonable in acting thus?”