Suit Highlights Disconnect Between Law and Real Life

12/1/2004

Accusations against Bill O’Reilly by a former Fox News Channel employee, Andrea Mackris, have made sexual harassment a hot topic once again, and resulted in a settlement that potentially involves millions of dollars.

Only O’Reilly and Mackris know what happened, but their public statements provide some hints. Mackris claims that O’Reilly discussed sexual fantasies and behavior. O’Reilly acknowledges some sexual talk, but denies wrongdoing and filed a counterclaim for extortion.

In other words, although there was probably some sexual discussion, O’Reilly may have believed — rightly or wrongly — that it was consensual.

This situation illustrates the legal and cultural disconnect currently generating excessive employment-related litigation: As a society, we can't settle on the rules governing adult discussion of sex.

People chatter and joke constantly about sex in workplaces throughout the country Why? Turn on the TV Shows like "Will & Grace" and "Dr. Phil" demonstrate that sex amuses and interests people quite a bit. And this inevitably plays out around the office water cooler.

Since 1971, courts have recognized that creating or allowing "sexually harassing" work environments amounts to illegal sex discrimination. Many early cases originated in traditionally male industries, brought by women targeted by plainly abusive behavior — demands for sex, graphic posters and language clearly calculated to demean women. Courts properly recognized such workplaces as discriminatory and unacceptable.

But workplaces have undergone dramatic changes in recent years. Employers increasingly recognize that allowing outrageous sexual conduct doesn't make good business sense. Recent court decisions have likewise rewarded employers that prevent harassment.

During the same period, our societal norms have changed. A new generation has entered the workplace. The Clinton/Lewinsky scandal brought taboo topics to many dinner tables. A recent "wardrobe malfunction" continued to push the line.

Perhaps acknowledging this trend, in 1998 the U.S. Supreme Court cautioned courts not to convert discrimination laws into "a general civility code," stating that "the prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace."

But drawing the line isn't easy. Also, although many of these claims are valid, employees often have a financial incentive to exaggerate the extent of the conduct.

Furthermore, the line between "friend" and "co-worker" is increasingly blurred as employees spend more time together as a result of longer work weeks. After-hours comments by a boss that may have seemed funny and harmless over a glass of wine may seem outrageous when quoted in a court complaint.

On the employers’ side, standing on principle is an expensive proposition, as it may cost tens of thousands of dollars in attorney’s fees to defeat even a frivolous claim. Although not necessarily extortion, it’s clear that employees asserting harassment claims have the upper hand.

As long as courts fail to acknowledge that cultural norms have changed — for better or worse — these types of lawsuits will continue. Hopefully we are moving toward an era in which our system reflects more honestly the changing realities of our workplaces, office relationships and culture.

(Originally appeared in The Business Journal, December 17, 2004)