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Boss Grab Your Breasts? That’s Not (Legally) Harassment

In a case that went to federal court in the early 1990s, a woman presented evidence that her supervisor tried to kiss her on multiple occasions, placed “I love you” signs on her desk, called her a dumb blonde, put his hands on her shoulders and asked her out on dates. The trial court judge dismissed her suit, declaring that this conduct did not meet the threshold for sexual harassment, and the appeals court affirmed the dismissal.

Since then, courts have cited this case and others like it hundreds of times in rejecting sexual harassment claims. Such conduct, these courts have declared, is not serious enough to be harassment.

In a 2014 case, for example, a court dismissed harassment claims by two waitresses who said their co-workers kissed them, brushed up against them and made sexual references. (One of the waitresses said that a colleague told her repeatedly that he wanted her to have his baby.) A 2000 harassment case was dismissed even though the plaintiff, a construction worker, presented evidence that his male supervisor blew kisses at him, repeatedly remarked on his buttocks, touched his knee in a suggestive manner, made comments about raping him, asked him to sit on his lap and talked about his genitals.

There remains a sense among Americans that the country’s legal system is well equipped to handle the harassment cases that will likely be brought as more women come forward with accusations, including against celebrities like Matt Lauer and Garrison Keillor. The country has laws protecting people against harassment in the workplace and courts in which those laws are supposed to be enforced. Several high-profile lawsuits — including Gretchen Carlson’s suit against the former Fox News chairman Roger Ailes, which was settled for $20 million — have reinforced this impression.

But this notion is misleading. In fact, courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts. The judges declare that the conduct does not constitute harassment in a legal sense, and refuse to let the cases go to trial. How did we get here?

In the 1986 case Meritor Savings Bank v. Vinson, the Supreme Court held that Title VII of the Civil Rights Act prohibits harassment in the workplace based on sex, race, color, religion or national origin. Today, Meritor is viewed as a landmark case that officially recognized sexual harassment as an impermissible form of discrimination.

But in issuing its judgment, the Supreme Court used the words “severe or pervasive” to describe the level of seriousness that conduct must reach before meeting the legal definition of harassment. Those words are not found in Title VII. Instead they are a judicial interpretation of the statute — and have had lasting consequences.

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