What "Objectively" Qualifies as Sexual Harassment? Not Much.

Claims of sexual harassment/hostile work environment must satisfy what is called an "objective" standard: the conduct being complained about must be what a "reasonable person in the plaintiff's position" would have considered hostile. This standard makes sense, theoretically. Frivolous claims of inappropriate conduct, based on exaggerated, subjective opinions shouldn't be allowed to clog up the court system. But while the subjective views of the plaintiff alone shouldn't automatically determine what qualifies as sexual harassment (anything can be offensive to somebody), the objective standard still requires a subjective judgment call. Who, exactly, is this "reasonable person?" What does a "reasonable person" know or believe or feel? Who decides that?

Judges often decide that. Normally juries are supposed to make that call, but when a defendant moves for summary judgment before trial, they argue that no jury could possibly rule in favor of the plaintiff. A judge gets to decide if they're right.

To do so, the judges have to discern what a "reasonable person" would do in a particular set of circumstances. In sexual harassment cases, they have to decide how a reasonable person would react or feel in the same situation the plaintiff found herself (and it's usually a her).

Below is a passage from a court's decision dismissing a Kentucky sexual harassment case. It's a giant paragraph, which I apologize for in advance, but gives a good summary of how a so-called "objective" standard allows judges - usually men over the age of 40 - to subjectively decide what qualifies as a hostile work environment, often dismissing claims before they reach a jury.

I have emphasized the conduct considered by some courts to be insufficient to sustain a claim of sexual harassment/hostile work environment. Do you agree that, "objectively," these situations were something less than sexual harassment?

The Court finds that the conduct of [the accused harasser], while immature, inappropriate, and boorish, does not constitute offensive conduct actionable as harassment, especially in light of the alleged actions of harassers sued in the cases cited below, which various courts found did not give rise to a claim of hostile environment sexual harassment. See, e.g.,  Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986) (Sixth Circuit did not find actionable sexual harassment where (1) male supervisor referred to a female manager as "whore," "cunt," "pussy," and "tits" and stated "all that bitch needs is a good lay," and (2) the Company forced her to sit with female hourly employees during meetings, forbid her taking clients to lunch, and tolerated posters of scantily clad women in work areas), cert. denied, 481 U.S. 1041, 95 L. Ed. 2d 823, 107 S. Ct. 1983 (1987); Baskerville v. Culligan Intern. Co., 50 F.3d 428 (7th Cir. 1995)(held the following did not constitute sexual harassment: supervisor called the plaintiff "pretty girl", made grunting sounds like "um-um" when plaintiff wore a leather skirt, stated "all pretty girls run around naked", and stated that "with so many pretty girls", he "didn't want to lose control"), cited by Black v. Zering Homes, Inc., 1997 Fed. App. 0014p( (6th Cir. Jan. 14, 1997)held comments directed to the plaintiff including, "Nothing I like more in the morning than sticky buns", and "Hey weren't you there [at the biker bar] Saturday night dancing on the tables?", and references to property parcels as "Hootersville" and "Twin Peaks", did not give rise to a sexual harassment claim); Koelsch v. Beltone Elec. Co, 46 F.3d 705 (7th Cir. 1995)(held supervisor who stroked plaintiff's leg on one occasion, grabbed her buttocks on a separate occasion, told her that he found her attractive, and twice asked her out on dates, did not commit acts which were actionable); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993)(held actions of supervisor unactionable even though he called subordinate "dumb blond", placed "I love you" signs in her work area, asked her for a date, put his hands on her shoulder, and tried to kiss her);  Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993)(held the following acts did not constitute sexual harassment: supervisor made inappropriate remarks, kissed and repeatedly touched the plaintiff, and chased her around a forest preserve); Stoeckel v. Envtl. Management Sys., Inc., 882 F. Supp. 1106 (D.D.C. 1995)(held employee's attempts to kiss plaintiff, his lewd remarks about her appearance, his following plaintiff around the office, his unsolicited neckrubs, and hand-holding did not rise to the level of severity and pervasiveness); Gearhart v. Eye Care Centers of America, 888 F. Supp. 814, 825 (S.D.Tex. 1995)(held unactionable supervisor's conduct although supervisor touched plaintiff's breast and hair, kicked her in the buttocks, and made numerous lewd remarks directed at plaintiff); Lefevre v. Design Professionals Ins., 1994 U.S. Dist. LEXIS 20978, 1994 WL 514020 (N.D.Cal. 1994)(supervisor's repeated handshakes and hugs at business meetings and references to plaintiff as "babe" did not create an objectively hostile work environment); Ballou v. University of Kans. Med. Ctr., 871 F. Supp. 1384 (D.Kan. 1994)(held defendant's actions did not constitute sexual harassment where supervisor defendant asked plaintiff about her interest in a romantic relationship, asked her to kiss him on her birthday, often stared at her and followed her).

Stacy v. Shoney's Inc., 955 F. Supp. 751, 755-756 (E.D. Ky. 1997).

Some years have passed since this decision, but the law has not progressed much with the passing of time. There is, after all, extensive precedent to bolster a particularly one-sided "objective" standard, as illustrated in the passage above. Case law doctrines gain quantitative strength and momentum as the years pass.

Sexual harassment claims remain very difficult to win in general, and some judges remain downright hostile to them. "Objectively," of course.