MICHAEL JOHNSON: Good morning. Oh, let's do that again. Good morning.
AUDIENCE: Good morning.
Oh, that was awesome. My name is Michael Johnson. I'm the Dean of the School Hotel Administration.
All right, on to the main event. Dave Sherwyn's going to be our lecturer this morning. Dave is one of my very best professors in the school. So it's a delight to introduce him this morning.
Dave is a Weiss Fellow. It's an award he received here in '13/'14, academic year '13/'14. That's a very prestigious award on this campus. Only three faculty members each year get this award, and it's for their excellence in teaching.
Dave is also the John and Melissa Ceriale Professor of Hospitality Human Resources, and a Professor of Law in the school. We have this little-- our friends from the ILR School here, we have a little competition each here in terms of how employed our students are by the end of the year, and we run neck and neck, but we usually win. We're right there at 75% to 90%. And I tell you, the 10%, we usually have about 90% of our students employed at graduation. Of the 10% that are not, it's because they're going to Teach For America, the Peace Corps, or law school because of him. So 4% or 5% every year are going to law school.
Dave has also started something that's a very special thing we do with the ILR School. We have a great relationship with our friends over here. He started teaching a course several years ago on collective bargaining in the hospitality industry. It's a course he teaches with Professor Rick Hurd. Some of you have had Rick as a professor.
It's a great course. They send the students down to New York. They mediate cases. They do it from the labor side, they do it from the management side, and they have to do it from both sides. So it's just a great course in the curriculum here at Cornell.
Dave is also the architect of the Cornell Institute for Hospitality, Labor, and Employment Relations, CIHLER, which is another interaction that we have with our friends over here in ILR. We've run a joint conference together for many, many years. I think this year was our ninth, our ninth year of the conference out in Las Vegas, HR and Hospitality Conference. The course, roundtables, all kinds of great things.
Barry's one of the board members I know of CIHLER. So it's good to see you. But without further ado, I'm going to introduce the star attraction, Professor Dave Sherwyn.
DAVE SHERWYN: Thanks, Michael. Thank you all for coming. We had this fear of what happens if you get a room that holds 300 and nobody shows up. So thank you for being here because I did lose some sleep.
So I'm an ILR grad, class of '86, Cornell Law School class of '89. So if any of you guys were around in those days, hey, welcome back. And about 20 some odd years ago, maybe 30 years ago now, which is scary, I was at an alumni event, and Bob Smith, who's Associate Dean here at the ILR school, said being a dean's a really hard job. Michael will agree. And he said one of the reasons it's so hard to be a dean is because you have three different groups, they want three different things. Alumns want more football victories, faculty want more parking, students want more sex.
And so you're all students today, and I'm doing the best I can. We're going to talk about sexual harassment. So again, that's as far as we can go here.
So OK, so talking about sexual harassment and where we're going is, we'll begin with-- and, you know, Michael asked if I would put on a jacket and I said, sure. You know, you do that for a dean, but then that's enough. OK, so talking about sexual harassment, we have to begin with-- and I've got Barry Hartstein here who does the EEOC update every year at our HR and Hospitality Conference, so he might heckle in between and that's fine. And if anyone has any questions or comments, please go.
But we begin with, in talking about sexual harassment, Title VII of the Civil Rights Act of 1964. And going kind of quickly through this, what happened with Title VII was originally the bill had four protected classes-- race, religion, color, national origin. At the 11th hour, they added sex. Some folks will argue that it was a plan by the Southern Democrats, who were very conservative-- those are the, you know, they-- were going to support George Wallace four years later to kill the bill. And by adding sex, and they made this impassioned plea that poor white women would now be left out as the world moved forward and we need to add sex to the bill. And their hope was that people would say, oh, now we're adding sex, what's, it's going to, it's a slippery slope, and kill it. But instead, the rest of Congress said, OK, fine. And they added sex and we went on.
The problem with that is that if you, for us lawyer types when we're young associates and so on, if you're trying to figure out what a bill meant, the partner would say to you, well, go look at the legislative history. What did they discuss when they were adding sex? And the answer is nothing because it was added so late. So there is no legislative history about sex, or not a lot about sex.
And as the years went on, we had a decision-- what does sex mean? And the Supreme Court at one point says, sex means gender, gender means sex. And years ago, I'm teaching this to students and I'm saying, you know, sex means gender. Student raises his hand and says, Professor, you're wrong. That's always fun, right? Professor, you're wrong. Like, OK, cool, I'm wrong. All right.
Why am I wrong? And student says, well, my psychology teacher says that sex is about sexuality and blah blah blah, and gender is about biology, and goes on and on. And I'm listening. I'm going, OK, wow, that's really cool. And I said, is your psychology teacher on the Supreme Court? The student said, no. I said, OK, as soon as that appointment comes through, let me know. Because until then, we're going to go with sex and gender mean the same thing, OK? And that's where we were.
So life goes on, and we've got Title VII going on for about 12 years. And Catharine MacKinnon, a law professor, writes a book on proving that law professors can actually be relevant. She writes a book, and she coins this term, pretty much, sexual harassment. And again, we're in the '70s, and in the power of the workplace, for the most part, men have the power. And she's saying that when men exert power over women with sexual connotations by-- whether it's asking them out, or making comments about how they look, and so on-- that's sexual harassment, that's a form of sexual discrimination, and it actually violates Title VII.
And it's like, wow, OK. That's a nice theory. That's what law professors do. And most people figure, like everything else like we all write, they'll just be ignored. But it didn't happen. The EEOC jumped on it and said, yeah. And put together regulations about sexual harassment.
And now we have this concept that was out there. But still, you can't find it in the statute. There's nothing in the statute. The statute says you cannot discriminate because of sex.
And let's go think back about 1964. What did Congress look like in 1964? Right? It's a bunch of old white guys. OK? Sexual harassment-- we all watch Mad Men. That's a way of life in 1964, right? There's no way these folks were thinking, you know what? You know, this sexual-- when we said you can't discriminate because of sex, we also mean you can't harass people. There's no way that were thinking about that.
But anyway, MacKinnon said they were, and the EEOC said they were. And then we get to the cases start coming through the system, and we get up to the Supreme Court in 1986. And in 1986, we had the Meritor, Vinson v. Meritor Savings Bank case, gets up to the Supreme Court.
What happened there was a woman was working at a bank. She-- her supervisor or boss demanded sex from her. She felt she had no choice. She slept with him. They had an affair for a couple of years. She said she slept wiht him more than 60 times, and then had enough. And she said, I'm not doing this anymore. I think she might have met somebody and wanted to move on with her life. And he said, well, that's great. You're fired.
And now the case gets up to the Supreme Court, and the Supreme Court has to decide whether, in 1964, when they threw in sex at the 11th hour, they also were trying to prohibit sexual harassment. And the Supreme Court says, in fact, they did that. That's what Congress was thinking. Kind of doubt it. But that's just me.
But anyway, they say that's what Congress was thinking. And the Supreme Court goes forward and tells us there's two kinds of sexual harassment. And most of us know this. It's part of our lives now. You know, we all-- it's a term that we all use and we all hear all the time.
Two types of sexual harassment. Quid pro quo. This for that. In exchange for, or in the most basic terms, sleep with me or you're fired. OK? That's quid pro quo.
And then hostile environment. And hostile environment had this kind of funky definition. What is hostile environment? We're not really sure. Making the workplace abusive, conduct that was sexual. It had to be severe or pervasive. Our friend, our good friend Greg Gilman will always say severe and pervasive. You know, if it's really awful, it doesn't have to happen every day. You know, one can be really bad. But it's severe or pervasive. And so that's what we have. And it's kind of a fuzzy definition. And then we move into 1994.
And in 1994, there's a case, Harris v. Forklift Systems. And what happened was the Seventh Circuit, out in the Midwest, Chicago, Indiana, Michigan, Wisconsin Barry, come on. That's your neighborhood. You should know that. The Seventh Circuit held that to be a hostile environment, the plaintiff-- and at that point, 92% of the plaintiffs were women-- the plaintiff had to show that she had almost a nervous breakdown. That's what severe perva-- that's what a hostile environment meant.
Went to the Supreme Court and Supreme Court said, now you don't have to have a psychological damage, it doesn't have to be that bad. It just has to be severe or pervasive from an objective and subjective standpoint, meaning that you have to truly believe you're being harassed, and a reasonable person would believe that you're being harassed. OK?
My favorite part of that opinion was Justice Scalia, whose concurrence was really, it's great. If you read his concurrence, it's one page. Doesn't say much. It essentially says, severe pervasive objective subjective. Don't know what it means. Didn't know what it means yesterday, don't know what it means today, can't think of anything better, so I go with it. And so, you know, and so that is basically what our standard is, OK?
So we've got this thing, we've got sexual harassment, we're not really sure what it means, and so on. But through the time, we've kind of gotten this plan, and it's worked pretty well in trying to figure this out, which is we've developed into two types of conduct. There is sexual conduct and then non-sexual conduct. And we bring that gender thing back. And the non-sexual conduct, so I'm just being a jerk. That's not unlawful. You're allowed to be a jerk. You're just not allowed to be sexist. But you can be a jerk.
So if I'm screaming at you two every day-- and I do this in class and I like tell everyone how stupid they are and so on, but I'm not going to do it because it's not appropriate here. But if I just screamed at you two and told Barry how great he was, you would kind of think that I'm a jerk and a sexist jerk. But then when I tell him that he's awful and she's great, then all of a sudden, I'm just a jerk.
And so that seems to be OK so we would look to try to see if the conduct was non-sexual. We would say, well, why did they do that? If the conduct was sexual, we just inferred that you were doing this because of sex. So that's kind of where we were. Things were good in the early '90s with that. It made sense. It was easy as a former management lawyer for me to advise clients, if somebody is talking to you and they're complaining about sexual harassment, well, ask them what happened. Oh, they said it was awful. Great. They said it was terrible. I understand that. They said it was every day. OK. What happened?
And if they just said, well, screaming and yelling, then I've got to know why. And if they're talking about your body or talking about sex, then I know, OK, that's bad. We're done. Then in the I'd say early to mid '90s, we started getting new types of claims coming. And these new types of claims were same-sex sexual harassment. OK? And that's what we're really talking about today, and that was the mess that we got too. OK?
The first claim that we got out of the same-sex sexual harassment, or one of the first claims, was the Garcia case out of the Fifth Circuit. Louisiana, Texas is the Fifth Circuit. And what happened was somebody alleged that his supervisor was sexually harassing him. And the court looked at the conduct and said, no, not really. It's really not that bad. It's neither severe nor pervasive. It's just not harassment.
Oh, and by the way, there's no such thing as same-sex sexual harassment. OK. So that was the law. And since the conduct wasn't that bad, it didn't lead to much of an outcry because there's really no such thing. But that's OK. Then other cases start coming. So a Fourth Circuit case comes and they say the same thing. But now there's another Fourth Circuit case and it's Wrightson v Pizza Hut. And in the Wrightson case, what happens is at the Pizza Hut, there are a bunch of high school guys working there.
And the supervisor was gay. And the supervisor was touching the guys and propositioning the guys. And they're 16 and 17 years old and they sue. And now the Fourth Circuit has to sort of change. And they're like, OK. We said there was no such thing as same-sex sexual harassment, but that doesn't always mean that. So for the Fourth Circuit-- and my handwriting is really awful. My ex-wife says I'm a latent mass murderer, which I think is pretty harsh. So give me that.
So the Fourth Circuit says, well, if the harasser is gay, then we can have same-sex sexual harassment. OK? Now we get to the Fifth Circuit. And the Fifth Circuit was the Garcia case. And the Fifth Circuit just said, no. No such thing as same-sex sexual harassment. OK? And we're moving along, life keeps going on. We get to the Seventh Circuit and we have a case called Doe and Doe v City of Bellville. And in the Doe case-- and the names were changed to protect the kids, actually, because they high school kids-- there were two twin brothers who were working on a construction site for their summer job.
One of them was overweight, so the great citizens they were working with would call him fatso and lard and all these other pretty names. And then the other brother was very effeminate and they would just be abusive to him. Are you a boy, are you a girl? He wants to have sex with us. Let's take him out to the woods and make him give us oral sex and all this really, really horrible, horrible stuff. And if you ever have way too much time on your hands, read this opinion because it's like a 50-page opinion. And for 48 pages, it looks like they're going to say, hey, look, if the conduct is that bad and that sexual, it's unlawful.
Then with like a page to go after what seems to be a very logical opinion, they say, we don't have to go there because in 1989, Anne Hopkins sued Price Waterhouse saying that she was discriminated because of sex and Anne Hopkins was told when she didn't make partner she could go up again the next year, she was told that if she wanted to make partner, she needed to walk, talk, and act more like a woman, stop cursing and get her hair done. And the court said, well, that's sexual stereotyping. You're not living up to sexual stereotype is a form of sexual discrimination and therefore, she had a case.
So in the Doe case, after talking about the conduct for 90% of the opinion, they say, ah, but he didn't live up to a sexual stereotype because he was an effeminate male and therefore, that's why he was harassed. So the Doe case says it's all about the stereotype, do you live up to the stereotype? Which brings us to the Eighth Circuit and an all-time great case. And in the Eighth Circuit, we get a case called Quick v Donaldson.
And in Quick v Donaldson, what they do on the plant floor-- here in ILR, talk about the plant floor all the time, we always talked about it when I was in ALR 30 years ago-- but on the plant floor, what they did at this plant is guys would go up to other guys and smack them in the crotch and it was called bagging. OK? And it was a thing. It was like, hi, honey, how was your day at work today? It was great, I bagged 11, only got bagged once. Oh, good day.
So that's what was going on in the Quick v Donaldson case. Now, smacking a woman in the crotch doesn't have that same effect as doing it to a guy and therefore, the women were not really part of this game. OK? It was just a guy thing. And the court said, well, OK, when finally someone got sick of it, they said, well, if only men or only women are subjected to this conduct, then it can be sexual harassment. So now we've got four different standards.
If the harasser is gay, then they're same-sex sexual harassment. No such thing if the harassed employee does not live up to a sexual stereotype or if only one gender is treated that way. And that's where we are. And as all the lawyers know in the room, this is the time that the Supreme Court gets involved. We've got a so-called split in the circuits and here we go. And then we get the case out of the Fifth Circuit. This is a case where they say no same-sex sexual harassment, only that was Garcia where the conduct wasn't so bad.
Now we move to Oncale. And in the Oncale case, Joseph Oncale was working on an oil rig. 15, 18 guys on an oil rig off the coast of Louisiana. And this wasn't conduct that was, well, I'm not so sure. This conduct was over the top. They were sodomizing him with a bar of soap in the shower-- I mean, nasty, nasty stuff. The case goes to the Fifth Circuit. The Fifth Circuit says, there's nothing we can do. We have a ruling that-- I think they call them their brothers or sisters or something-- but another panel made a ruling that said, there's no such thing.
And sometimes you read these opinions and you can see that the author is saying, please, please overturn this. So they're saying, even though we look around and see better analysis and better holdings, we are bound. So hey, Supreme, take this, fix it. And now we get to the Supreme Court. Is the harasser gay? No. Sexual stereotypes, men and women. And so here is the interactive part of today's talk.
I will ask you please, and I'm going to repeat what you say because I'm miced and all that kind of stuff and you're not and I'm not going to run around with mics because that's a pain. I'd like any of you, all of you, some of you, somebody tell me why-- and I will suggest to you that each one of these is utterly stupid. It's just a horrible way to go forward. And so pick one and tell me why it's stupid. Thank you.
AUDIENCE: Sodomy is illegal.
DAVE SHERWYN: Not any more. The Supreme Court overturned that. When I was in law school, it was. So good try. But OK. But that's now why it's stupid. Let's go stick with the rulings. Why is each-- come on. Thanks.
AUDIENCE: So sometimes [INAUDIBLE].
DAVE SHERWYN: OK. right. So he's saying sometimes it's hard to know if someone is gay or not. And this, again, in the '90s. But now you know we talk about this continuum and the spectrum and so on. And then the other thing is can you imagine litigating whether the person is gay? That would be a prerequisite to the case. We'd be writing briefs on whether the person was gay or not. Right? So just how stupid that is the. The first thing you have to prove, element number one, is that they're gay. OK. It's like god, Barry, you want that case?
What do I have to prove today? I have to prove someone's gay and he's saying he's not. What a mess. OK. So Fourth Circuit's stupid.
AUDIENCE: So the Fourth is stupid because they're forcing people to live with stereotypes, which is making women act this way and making men act that way, which is--
DAVE SHERWYN: It's utterly stupid. Right. He's saying they're forcing people to live through a stereotype and then-- but how about this one, you are protected under the Seventh Circuit if you don't live up to the stereotype. So what's the logic into that?
AUDIENCE: And you're not protected if you do.
DAVE SHERWYN: You're not protected if you do. So that means I can say whatever I want to the regular guy or the regular woman. Right? Say again.
AUDIENCE: Who determines what the stereotype is?
DAVE SHERWYN: Well, that's another issue. That's back to--
AUDIENCE: -- is that it's--
DAVE SHERWYN: It's just a mess. Right. So we could say, OK, right. It's like, how skinny was the person? Did they were an earring? I don't know. The woman-- her hair was too short or not. I don't know. Right, exactly. It's like you don't wear makeup. Oh, OK, you do. Right. What a mess. But then the other thing is the quintessential regular guy, fair game-- whatever you want.
And actually, there was a case where-- it was funny. It was out of Vegas and I think it was at either Desert Palace or Mirage or something like that. And the lawyer was trying to argue that this guy was being harassed because he didn't live up to the sexual stereotype. He was actually being harassed because he was gay, and that's not protected. And then they said to him, so is it because you don't live up to the stereotype? He said, no, I am a manly man. OK. Your case is dead then.
You idiot. Hey, lawyer, way to prep your witness. OK. So stereotypes, stupid. We've got the Fifth and the Eighth. Help me out. Thanks.
AUDIENCE: So it could be a bisexual person who would do the same thing to both men and women and still be of a sexual nature?
DAVE SHERWYN: Yeah. Or not of the sexual nature, but exactly. So basically, in the Quick v Donaldson case, we get the situation where they were only smacking guys. Oh, that's unlawful. Hey, we'll start smacking women. We're cool. Right? I mean, utterly stupid. Right? OK. So that's where we are. And then leading us to the Fifth Circuit. Fifth Circuit, why is that stupid?
AUDIENCE: Because there is sexual [INAUDIBLE].
DAVE SHERWYN: Right, because it's stupid. Right. Or how about this one, how about let's go this way. So I am an employee and I've got a female supervisor. I'm in love with this woman, I've waited my whole-- this is it. I just dream about maybe we can get together. One day she comes and sits on my desk and she touches my face and she says to me, sleep with me or you're fired. And it's a dream come true.
OK. If I say no and she fires me, what do I do-- what do I have? No. I've got a great case, right? If I say no. Alternatively, I'm unbelievably homophobic, it freaks me out. Now I have a male supervisor. He comes and sits on my desk, touches my face and my hair and says, sleep with me or you're fired. And I say, no. And then what happens? I've got nothing under the Fifth Circuit. Now, isn't that utterly stupid? That just makes absolutely no sense.
So now we go to the Oncale case and it gets up to the Supreme Court. And--
AUDIENCE: Where are we in time now?
DAVE SHERWYN: We're in 1998. So we're in 1998. Harris v. Forklift is '94 and that's kind of defining a hostile environment. Then this wave of cases comes. OK? So we get up to '98 and now here we are in 1998 in a case before the Supreme Court. And again, it's nasty. The conduct that Joseph Oncale had to go through was just horrible. OK? And the Supreme Court starts looking at all of these things.
The first thing they do is they reject the Fifth Circuit. They're like, OK, that can't work. And then they say, OK. That could be a reason, we'll accept that. That could be a reason. And they kind talk about this. And then what they do is-- and this is Justice Scalia in either an 8-0 or a 9-0 because someone might have recused thsemself. But there was no dissent, there was no nothing. Everyone made this sound like it was a no-brainer. And Justice Scalia said the key thing, and that was supposed to be a B, is that it has to be because of sex, that the conduct has to be because of sex, that same-sex sexual harassment can exist but the conduct needs to be because of sex.
And you're like, OK. So now Scalia starts talking about what that could mean. And he says, well, if the harasser is gay, then we could infer that it's because of sex. If the harasser is one of those people that just doesn't like their own sex-- so they don't like men in the workplace, they don't like women in the workplace, whatever it is-- that could be because of sex. Yeah?
AUDIENCE: What happens if a gay guy, let's say, harasses a female as a power issue, as opposed to a sex issue?
DAVE SHERWYN: We'd have to find out. If it was just a power issue, then it's not because of sex. What if a straight guy does it as a power issue? She's smarter than him, he wants her out. It's not because of sex. But Scalia says it has to be because of sex and goes through it. So he says, well, if they're gay, it could be because of sex. They have this anti-whatever their own gender, that could be because of sex. And then he says, and the other thing to do would be to look to see how the opposite sex is treated. OK.
And that comes back to-- that's right on Donaldson. And he says, look, if I'm a guy and I'm harassing a guy and I'm not harassing women, then we can infer it's because of sex. So what's the logical extension to that? Harass the women, the great day for the bisexual. Sleep with me or you're fired; sleep with me or you're fired. It's cool. Sounds utterly stupid, right? I agree, utterly stupid.
And my students are going, nah. No, really. I didn't make this up. And you're reading it. And Scalia-- it's great. You're reading the opinion and Scalia-- every so often, you come up with these lines in cases that are just great. And he says, this is not a code of civility. Title VII is not a code of civility. Absolutely. We don't come in and say, you have to be nice to the people you supervise. That's what my friends who teach HR say, treat people with respect.
I'm like, right. That's great. That's the right thing to do, as I always say to the students, because they take HR before me. I say to them that my friend and colleague Bruce Tracy, I say, Bruce taught you what you should do. I'm going to tell you what you can do. Very different. OK? I'm not telling you to ignore Bruce, but don't turn around and say, you can't do that. You can. It's probably not a good idea. OK?
So we get through this and we're talking about, OK, so you can, again, be a jerk and so on. But now the logical extension is if you harass both and Scalia says it's not a code of civility. And then the line that I love, he says, conduct that's merely tinged-- nearly twinged-- with sexuality is not unlawful. They sodomized him with a bar of soap. That's not a mere tinge, right? That's serious, serious stuff. OK?
And Scalia is saying, it has to be because of sex. Well, that goes back to what I was saying before. We used to look and say, if the conduct was sexual, we inferred why. If it was non-sexual, we wanted to know why. Right? So now the question is, we've got to get inside someone's head. If we go to the Wrightson case when the supervisor was grabbing the butts of the 16-year-olds working at the Pizza Hut, do you think those kids would all feel better if you say, hey, look, he's not doing it because you're a guy. He just likes to do it because he likes to have the power trip. Oh, OK.
Or Oncale as he was being sexually assaulted in the shower on the oil rig. Hey, look, man, it's not because you're a guy. They just hate you. That's why you're doing it. And so he's like, yeah, that's fine as long as it's not because I'm a guy.
AUDIENCE: Why isn't that case of sodomy assault?
DAVE SHERWYN: It is. It's a great question. He wanted to know, why isn't that assault? It is assault. OK? The thing is who's assaulting him does make a difference. I know. What do you do with an assault case?
AUDIENCE: Call the police.
DAVE SHERWYN: Right. You call the police and prosecute. And then what does the guy get? No. What does Joseph Oncale get? Nothing. He wants money. So who do you sue, the other dudes on the oil rig?
The company. And how do you sue the company? And you can only sue the company-- the thing is for a tort like that, you can't sue the company unless it's arising out of and in the course of employment. This isn't one of those things like, today we're going to get the oil out of the ocean and we're going to harass each other. I mean, that's not what the supervisor says, right? So this isn't arising out of in the course of business. So the only way you can get the company and get money is to spin this into sexual harassment.
AUDIENCE: If the employees of the company are assaulting people, you can't get the company for that?
DAVE SHERWYN: Not in terms of the agency law. Generally, it has to be arising out of in the course of employment. OK? And this wasn't. OK? But in sexual harassment, it's a wider breadth. It's another 50-minute lecture on when there's liability. But you can get him for sexual harassment.
AUDIENCE: Is the short version of this if an employer walks up and punches an employee, it's strictly an assault case, whereas if the company allows a supervisor to do this sex stuff-- they didn't tell them not to do it, they didn't have enough things in the case-- and so because he does that, now they can sue and get money from the company because the company was not responsible for teaching their people not to hit each other, but is responsible for this?
DAVE SHERWYN: To a point. But you're limiting the liability in sexual harassment more than it needs to be. So if a supervisor sexually harassed somebody, the company is liable unless--
AUDIENCE: --the company have policies about it and train the guy for an hour the day before not to do this, and he still did it?
DAVE SHERWYN: If there's no tangible loss. So it's just like making your life miserable, as opposed to you got fired, you didn't get a promotion. No tangible loss. The company is liable. But they can get out from under it with this affirmative defense which says, we exercised reasonable care to prevent and correct-- that's your training-- and they, she, he, the employee unreasonably failed to take advantage of what we provided.
So if you had a policy and the employee blew it off and you did all the right things, you can get out from under liability. But essentially, if the supervisor says, sleep with me or you're fired; she says no; he fires her, the company is liable regardless of all the greatest training in the world because they suffered a tangible loss, game over. OK? But the argument, why isn't it assault? It is assault, but there's no money there. And the plaintiff's lawyer doesn't want that case because he's going to doesn't want to sue 15 guys on the oil rig.
And just as a stupid aside, in like '01, I was flying from Houston to Syracuse. And I'm sitting on a plane next to a guy who was going up to the St. Lawrence River to be a diver. He was on the oil rig when that happened. OK? It's just one of those weird things. And he just told me that this guy was just obnoxious and everyone hated him. There was there was no sex involved, it was that they hated the guy and this was a way that did show how much-- yeah, right. It's looking-- I'm right with you. Generally, I hate people, but not that bad. So anyway, but that's another issue.
But anyway, so that's what happened with Oncale. So now we get the end game with Scalia's opinion. And again, it's joined by the whole Court. OK? And it says that the key is because of sex. So now we go back to what I said before. We used to infer from sexual conduct that it was harassment, but we can't infer that anymore. We need to know why.
So we need to go into the person's head. So you had said, what about power? And I said, well, she's smarter than me. I don't like her around. It's not power, I just want her out. Or you know what, my friend is applying, another woman, but I just want my friend to have the job. So what's a good way to make her quit? Touch her a lot. It's like, OK. She'll quit. Good. Now you can bring in my friend.
It's not because she's a woman. I just want to get rid of her. So we have this concept that we have to get inside the head of people because we have to prove because of sex. And now what happens after that? Well, we get a case. We get a case back in the Seventh Circuit in the state of Indiana. It's Holman and Holman versus the state of Indiana. It gets up to the Seventh Circuit.
And what this supervisor-- classic, you saw coming-- he called husband and wife into his office, supervised them both, and he demanded oral sex from each of them. They both said, no. They both got fired. Their plaintiff's lawyer, who has a real job unlike me so he doesn't have all this time to read cases and kind of contemplate and think and all that, he wrote, this is classic sexual harassment. Sleep with me or you're fired to two people? They both said, no. They got fired.
So he put in his complaint that they said it to the man and they said it to the woman. And it got to the Seventh Circuit. And the Seventh Circuit is going, oh, man-- because of sex, sex means gender, if you say it to a man and a woman, it can't be because of sex-- and dismissed the case.
AUDIENCE: Why couldn't there be two counts if it's because of sex? Why couldn't there be two counts of the-- because--
DAVE SHERWYN: Because sex means gender. And Scalia said, if I'm just being a jerk to guys or if Barry's filing harassment claim against me saying that I treat men like this, one thing to look at is how I treat women. And if I don't treat women that way, that would show that Barry has a case. Well, the logical extension is that if I treat women that way, then he doesn't have a case. And therefore, if I call man and women into my office--
AUDIENCE: What if instead of because of the sex of the people involved, the nature of the harassment is sexual? So in other words, you have sexual harassment of a man and sexual harassment of a woman? They're two genders, but the harassment itself is sexual in nature.
AUDIENCE: But it goes back to how they're defining sex.
DAVE SHERWYN: It's defining sex. And remember, conduct merely tinged with sexual connotations is not unlawful. But I'm right with you. I actually love the segue. I know. Yeah. I know it wasn't tinged.
AUDIENCE: Yeah, if you're defending it as a gender.
DAVE SHERWYN: And we're defending it as why? Because we're going back to 1964. Remember 1964, remember the white guys in 1964? They passed a law that said you can't discriminate because of sex.
AUDIENCE: Just so we're clear because you've done a lot of history, what you're saying with the couple, that's the current law.
DAVE SHERWYN: This is the current law. Yeah. Yeah. Yeah. No. This is the current law. Yeah. So we go back--
AUDIENCE: If you're going to grab people, you've got to grab everybody.
DAVE SHERWYN: Exactly. OK. Yeah. right. OK. Yeah. Right. There you go. Thank you. right. Good. Thank you very much. With 20 minutes to go, you're the man. OK. So we're trying to give you as much information as we can. But now the question is, what should we do? And I have a standard, and it's close to what you're saying. OK?
And my standard is this, conduct of the sexual nature if it's severe or pervasive-- so it's really bad-- should be per se unlawful, per se unlawful. It's no good. OK? So you sodomize the dude with a bar soap? No. Sleep with me you're fired to both you? No. You can't do that. OK? My students will always say. But how do you prove that?
And there's a great case that came out of the Seventh Circuit after the Doe case. Some of the lower courts read the first 48 pages of the opinion and really kind of came up with that per se standard, if it's sexual, it's no good. They didn't read the last two pages so that was good, which was smart, I thought. So they were saying if the conduct was sexual, then it was unlawful, which brings us to this case Honda out of Wisconsin. And these two guys were unloading soda off a Coca-Cola truck and they hated each other.
And so one of them said to the other, eff you. And the other one said, eff you back. And then the other one said suck and then the other one said suck mine back. And then they brought in wives and girlfriends and mothers. It was pretty nasty. OK? And they're going back and forth and this is going on. So one guy complaints to supervisor. The supervisor says, get over it. OK.
He goes back to work. The conduct continues with eff you and suck mine and blah, blah, blah. And so finally, one guy can't take it anymore, takes a crowbar, and beats the crap out of the other one. OK? And now we get up to the Seventh Circuit and we have a sexual harassment claim. And the question is that they're saying if the conduct is sexual, it's unlawful. OK?
And the court dismisses the case. Why did the court dismiss the case?
AUDIENCE: Because they just hated each other.
MICHAEL JOHNSON: It's not sexual, right? Think about every good insult we have. Right? Do we mean it? The last time you said eff you to someone, did you mean it? Not that way. And I would argue that we can do a pretty good job figuring out whether conduct is sexual as opposed to what's in somebody's brain as to why they did something. I would much rather be able to say, oh yeah, those eff yous, they didn't mean it; that touch, that's sexual; as opposed to, I wonder why he touched her or him. I wonder why she-- I don't know.
So why? And the answer, I think, is this. In 1964, we passed a law that said you can't discriminate because of sex. In 1986, we said that when they said that in '64, they meant that sexual harassment is unlawful and that conduct that is severe or pervasive from an objective and subjective standpoint-- undressing someone with their eyes or touching them or making comments or asking them out-- that would be unlawful. And that's what Congress intended in '64. Anyone think they intended that in '64?
No way. So I would say to you that there's a pretty big leap. Right? So now we're in 1998. So in 1998, the next leap is to say that if the conduct is sexual in nature, it's unlawful. That's what Doe seemed to be saying, that's what I suggest to you would be very workable. And then when the Holmans were sitting there and the guy said, sleep with me or you're fired to both of them, they would have a case. Right? And Doe would have a case and the Wrightson kids would have a case. Everybody would have a case that made sense. Right? And we could figure it out.
And I would suggest to you that from Meritor to that is not that big of a leap. Right? Quid pro quo, hostile environment, the conduct's sexual, it's unlawful. Right? Not a big leap. However, that's a hell of a leap from 1964. That's a hell of a leap than when we said, you can't discriminate because of sex. Now we're going to say conduct of the sexual nature is per se unlawful and that that's what these folks were thinking about when at the 11th hour, they added sex into a discrimination bill.
There's no way you can make that argument that that's what they intended. So the Supreme Court is given three choices, in my mind. One is what the hell, make the leap. Legislate, be an activist court, make the leap. It's right, it will work for us, it's a standard that will be OK. The other thing they could do is do what they did and go back and look at the statute. And the statute tells us because of sex, because of sex, on and on and on and make that the standard, which is what it did. So that's what the Court did and that's why we're stuck with the stupidity and that's why we got Holman and that's why yes, you can harass both. OK. So the how to is good.
The other thing that they could have done, which I think would have been the coolest thing, is the Court could have said, you know what, that Meritor case was wrong. When we said sexual harassment was unlawful in '86, we were wrong. Because there was no way that Congress in '64 intended sexual harassment. Sexual harassment does not violate Title VII, with all due respect to Professor MacKinnon and the EEOC. There is no law against sexual harassment. Harassers out there, go forth. Harass away.
What would happen the next day? There would be a law passed, bipartisan support. We'd have a sexual harassment law and we'd know what constituted sexual harassment, we'd know when somebody was libeled. It would make sense because instead of layers and layers of case law trying to fit into a line three words that were thrown in with no thought, we'd have a sexual harassment law which would make total sense.
But we don't. So instead of taking the leap of faith or just being honest and saying, hey, we screwed up, they went and tracked the statute. And so that's why yes, it is really lawful to sexually harass both men and women as long as you harass both men and women. Questions?
AUDIENCE: How big was the bar of soap, how long--
--and there's been no significant law, nothing else has gone to the Supreme Court in the last 17 years?
DAVE SHERWYN: There's been nothing. I have no idea about your details of the Oncale case. Sorry. And the--
AUDIENCE: Did it occur more than once?
DAVE SHERWYN: Yeah. Yeah. Oh, no. It was a litany of conduct. It was-- I mean, I don't know how many times he was sodomized. But there were like 10 other things. There's just a limit to how graphic I want to get in class. But yes, so it was awful. And the thing is no, there hasn't been another case. And there have been cases-- there's a case out of the Ninth Circuit, the one that I was talking about where the dude said he was a manly man. The Ninth Circuit just in the most intellectually dishonest opinion ever found that to be unlawful.
There's nothing unlawful under Oncale, but they just looked at what this guy went through and they kind of gave with, there ought to be a law. And the Ninth Circuit, case they manipulated it and it's just horribly written but the guy gets the right result, that this guy deserves to get his damages. But the Ninth Circuit got really weird. That's California and going north. But it's just they did it. But the Supreme Court didn't take that case and it's just been hanging since then. And there's no outcry to change it.
And if we talk to-- and again, I keep picking on Barry-- but I'm guessing that if Barry has this case, if he can't get it dismissed on papers, he doesn't really want to go in front of a jury and say, my guy harasses everybody. Come on, he sleeps with anyone and he's touching the whole world and that's not unlawful. The jury's going to look and say, nah, it is. So the thing is it's not one of these things that happens all the time, but it is the law, it is the standard.
AUDIENCE: I find it pretty disturbing to judge a person based off what they've seen instead of what he [? is ?] doing, so trying to infer the intention of the conduct. And I feel-- so what I'm going to say is going to be pretty hypothetical, but why [INAUDIBLE] say we [INAUDIBLE], but it's kind of [? a relative ?] thing. It's like if this guy does this thing to another person, then he has the 75% probability of being put into jail. So the main point is that that gives people a sense of risk associated with the--
DAVE SHERWYN: Well, I'll go with your first point, which is you have a problem with what's going on in someone's brain. And I'm with you. I agree with you completely. But let's go back to the rest of Title VII is not about harassment. The rest of Title VII is about employment decisions. As managers, we all fire people, we all hire people. We can't just say, oh, got fired. She went, you know. That's unlawful. no, I can fire people. So then you have to go, well, why did I fire her? I fired her because she's a woman. Oh, that's unlawful.
So the intent isn't a part of that when we have normal business decisions, and that's what the law was about. Figuring out the intent behind reprehensible conduct makes absolutely no sense, but that's because we're shoehorning reprehensible conduct into a statute that's not about reprehensible conduct; it's about conduct with reprehensible motivations. And so that's kind of the problem and that's why it needs to be separate. But it's not. Yeah.
AUDIENCE: If they overturn the 1986 case, how would that affect that case now criminally and civilly? Would they have to overturn anything that occurred due to the fact that--
DAVE SHERWYN: No. When something gets overturned, it's sort of bank error in your favor if last year you won. It's not like they go back and say that. If your case is still pending, it's a great day for you if the new ruling helps you. But if your case is over, your case is over. We don't go back. It's a different world. If someone's sitting in jail-- but that's not what we're talking about. Yeah, we get people out of jail. But if a company had to pay and now we say it's not unlawful anymore, we don't do that. Yeah.
AUDIENCE: I was wondering if the law's definition of sex and gender has changed at all with kind of our cultural more acceptance or more understanding with transgender people.
DAVE SHERWYN: It's a great question. And they're struggling with it right now because the EEOC has issued regulations. And the regulations the courts are supposed to give deference to, but they don't have to. They can say, no, that's kind of messed up. Or they can say, yeah. They're smart people. They can do either one. And so the EEOC has said that transgender is sex, but Congress has debated several times and gotten really close to making sexual orientation protected and then hasn't.
So you can't now say, well, that's what they meant. Because they'd spit on the floor of Congress and they've said, no. So you can't do that. So transgender hasn't gotten there yet. And so the EEOC is saying that. But the EEOC is struggling and the courts are struggling because again, we're going back to congressional intent. Nobody was thinking that in '64 at all. And so we're just in a mess and we'll see it develop over time.
But it's kind of difficult for the court to make law on transgender when there's just a lot of law saying that orientation is not protected. But there are some courts out there that are taking that position. So we'll see. We're watching it filter up. OK? My clock says that we're out of time so thank you very much.
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The Supreme Court's 1998 Oncale v Sundower Offshore Services Inc., decision held that there could be a cause of action for same-sex sexual harassment. While most cheered the holding, a careful reading revealed that the case actually codified a theory that "sexual harassment" was not unlawful if both men and women were subjected to the same or similar conduct. Thus, the equal opportunity harasser defense was now the law of the land. Dave Sherwyn, John and Melissa Ceriale Professor of Hospitality Human Resources and professor of law, explains how we got there, what has happened since, and proposes what the law should be. Part of Cornell's sesquicentennial celebration, April 24-27, 2015.