What Derb doesn’t get (about the reality of sexual harassment)
posted by Kaimipono D. Wenger
As noted in earlier discussions, conservative pundit John Derbyshire recently wrote: “Is there anyone who thinks sexual harassment is a real thing? Is there anyone who doesn’t know it’s all a lawyers’ ramp, like “racial discrimination“? You pay a girl a compliment nowadays, she runs off and gets lawyered up.” (Some other pundits have expressed similar views.)
For comparison, here are a few snippets from the facts of some court opinions in actual recent sexual harassment cases. (major trigger warning — these cases contain some extremely disturbing fact patterns)
Plaintiff began working for CCA in 2001 as a Correctional Officer at the Correctional Treatment Facility (“CTF”) in Washington, D.C. Am. Compl. ¶ 10. The District contracts with CCA for CCA to manage CTF. Id. ¶ 5. Within a year of her employment at CTF, plaintiff’s superior, Captain McNeil, began to sexually harass her. Id. ¶ 11. Ms. Brown filed many complaints against McNeil with her supervisors and the union, but the sexual harassment continued. Id. ¶¶ 12-14.
*77 On December 7, 2004, McNeil allegedly followed plaintiff home and raped her. Id. ¶ 20. Plaintiff reported the rape to the warden at CTF, to her superiors, and to the union. Id. ¶¶ 22-23. She was prescribed treatment for the rape, which prevented her from returning to work immediately. Id. ¶ 24. Soon thereafter, the warden “commenced retaliatory acts against [plaintiff] by writing her up” and threatening to fire her if she did not return to work. Id. ¶¶ 25-26.
Another case:
July 2005-Nacrelli hosted a pool party at his house to celebrate the recent promotion of Ladonia’s assistant principal, Brenda Coley (“Coley”), to principal of another elementary school. (Jeffers Aff. ¶ 8.) At least some of the party was planned at school, and invitations were sent to teachers, counselors, and administrators of Ladonia. ( Id.) During the course of the party, Nacrelli squeezed the buttocks of Jeffers and another teacher “on more than one occasion.” ( Id.) Later, as Jeffers sat next to Nacrelli’s wife on the pool steps, Nacrelli came up behind Jeffers and sat down with his legs around her. ( Id.) When she pushed his legs away, he stood up, and Jeffers realized he was naked. ( Id.) As she screamed, a nude Nacrelli “leap-frogged [her] into the pool, pushing [her] head down as he went.” ( Id.; Jeffers Dep. 280:1-14.) Although she did not witness it, Jeffers heard that Nacrelli also pulled the top and bottom of another female teacher’s bathing suit down, and put his hand down another female teacher’s shirt. (Jeffers Aff. ¶ 8.) Nacrelli claims he does not remember any of these events because he was drunk. (Nacrelli Dep. 55:16-57:11.) . . .
September 9, 2005-Nacrelli picked Jeffers up, rolled her toward him, and “bit [her] on the right breast.” (Jeffers Aff. ¶ 15.) Nacrelli acknowledges he picked her up and that her breast made contact with his lips, but he denies “chomping down on her” and writes it off as “one of those, oh-crap type of things.” (Nacrelli Dep. 76:4-77:3.) However, he admits to the possibility that he “could have nipped at her shirt.” ( Id. at 76:12-13.) . . .
2002-While riding with Craig to inspect a bus stop location, Nacrelli told her she had “nice legs,” and then proceeded to rub them and tell her how soft they were. (Craig Aff. ¶ 3.) Even though she pushed his hand away and said, “Don’t even go there,” Nacrelli “kept talking about how he would like to get with me.” ( Id.) After they arrived back at Ladonia, she tried to open the door, but he closed it, saying they could “go somewhere else.” ( Id.) He began to rub her hair and “kept rubbing up toward [her] crotch.” ( Id.) She continued to push his hands off, but he just laughed and said she “wanted him.” ( Id.) . . .
Both plaintiffs were subjected to numerous instances of inappropriate conduct at the hands of their principal. Jeffers alleges she heard at least twenty-five offensive comments, and specifically identifies at least ten of them. There is further evidence that comments were so pervasive that they “were of general knowledge at the school.” (Chaparro Aff. ¶ 4.) Jeffers was also subjected to at least four instances of offensive physical contact: Nacrelli bit her breast, grabbed her buttocks, wrapped his legs around her while he was nude, and pushed her head down while jumping over her head in the nude. While his comments occurred throughout his tenure as principal, it appears his behavior intensified during 2005, and almost all of Jeffers’s allegations occurred during a three-month period of that year.
Craig’s allegations took place over a longer period of time than Jeffers, but the harassing conduct occurred on a fairly continual basis, contained much unwanted physical contact that was overtly sexual in nature and involved numerous direct sexual propositions. It included Nacrelli rubbing her legs, and closing the bus door and suggesting they could go somewhere alone in order to have sex-all despite her many times removing his hand forcibly and demanding that he stop his behavior. In addition to the detailed instances of harassing conduct, Craig also alleges generally that Nacrelli made over two dozen harassing remarks and gestures between 2002 and his suspension in 2005.
Much of Nacrelli’s conduct toward both plaintiffs occurred in the presence of other colleagues, and in one instance a family member, thereby amplifying the humiliation. Craig was concerned that others would think she was having an affair because of the way he touched her and stood with his crotch close to her face in staff meetings. Nacrelli also grabbed her buttocks in front of her nephew. The conduct to which Jeffers was subjected at the pool party was not only in front of her co-workers, but also Nacrelli’s wife. Although Nacrelli’s conduct does not appear to be physically threatening, it goes far beyond a “mere utterance” and would greatly humiliate any objectively reasonable person.
Another case:
Almost immediately after Neal started his job with the City, he began harassing Griffin. He summoned her to work with him on the first day by demanding that the “big tit” or “big breasted” girl be sent to his office. Immediately, he began asking her a series of personal questions regarding where she lived, who she lived with, who cared for her child, whether she was married, whether she had a boyfriend, and where was her child’s father. The next day, Neal telephoned Griffin and asked her to guess what the “P” in his name stood for. Griffin testified that Neal was referring to his penis and that he would not get off of the phone until she guessed. Neal told her that he was looking for a girlfriend and wondered whether she could help him with that. He also told her that he did not like where she was sitting and wanted her to sit in front of him so that he could see her. . . .
After she tendered her resignation but before her job with the City ended, Griffin attended a Rotary Club function where she was scheduled to sing. The Rotary Club was very important in the workplace culture of the City and was attended by the Mayor, Commissioners, Neal, and several City department heads. Although Griffin arranged for a ride home with the City’s police chief following the event, Neal told her and the police chief that he would take her home instead. Upon arriving at her apartment, Neal grabbed Griffin’s music equipment and began carrying it upstairs, despite her telling him that she could take care of it herself. He followed her into her apartment uninvited and asked her to get him a drink. While she was getting him water or juice, Neal came up behind her in the kitchen and raped her.
And another:
At the December 5 dinner, all of the participants consumed alcohol. Tomka claims that Lucey encouraged his subordinates to drink, and that he directed the conversation to “vulgar accounts of his exploitation of women.” Pl.Resp. at p. 8. Tomka consumed two glasses of wine at the meal, while each of the men continued to drink after the meal ended. See Tomka Dep at p. 216; Conroy Dep. at p. 56. At the end of the evening, Lucey gave Tomka a ride to her hotel in his rented car.
The next day, Tomka contends that Lucey again convened a business dinner and ordered that she join him, Conroy and Polonsky at the Holiday Inn Airport bar in Rochester. See Complaint at ¶ 18. Although Tomka was “physically afraid” of Lucey and Polonsky, she attended this December 6 dinner because Lucey had instructed her to and she understood “it would be an early evening because Lucey had said he had a seven *1302 o’clock flight the next morning.” Tomka Dep. at p. 496. At the Holiday Inn, Lucey repeatedly ordered drinks for Tomka and insisted that she drink with the others. See Pl.Resp. at p. 9. Tomka consumed six glasses of wine, and the bar tab—which lists approximately forty drinks and only a small quantity of food—indicates that the others had even more to drink. See Tomka Dep. at p. 561; Exh. 62 to Tomka’s Statement of Facts.
As the evening wore on, the conversation apparently took a turn for the worse: Tomka alleges that the defendants repeatedly made vulgar remarks about women and talked of past sexual exploits. See Pl.Resp. at p. 9. The men teased Tomka about wearing her hair in a bun until she took it down, and Lucey brought a women’s garter to the table and placed it in front of Tomka, who put it around her arm. Id. at pp. 9–10. By the end of the evening, Tomka admits that she felt intoxicated and had difficulty walking.
After leaving the bar at approximately 11:30 p.m., Tomka “want[ed] to get away from Lucey and Polonsky.” Tomka Dep. at p. 496. She initially climbed into an Airport courtesy van, but Conroy assisted her out and helped her into the back seat of Lucey’s rental car. Tomka alleges that each of the three men raped her in Lucey’s car, an allegation that defendants deny. Pl.Resp. at p. 10. Conroy and Polonsky then drove Tomka, who was inebriated and semiconscious during the assaults, back to her hotel in Conroy’s car. At the hotel, Tomka claims that Polonsky directed her to his hotel room, where he raped her again. Complaint at ¶ 24. Tomka, passing in and out of consciousness, was able to eventually free herself and went back to her hotel room. Id.
I could go on, because there are a lot of reported opinions, and they’re all awful. But I really hope that’s not necessary.
Is there anyone who doesn’t think sexual harassment is a real thing?
November 10, 2011 at 5:01 pm
Posted in: Feminism and Gender
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Responses (4)
Kevin Jon Heller - November 10, 2011 at 6:21 pm
Kaimipono,
God knows I loathe Republicans. And I’m with you about how vile the response to Cain’s accusers has been. But I do wonder whether a slightly more sophisticated right-wing argument is possible. (Whether any actual pundits are making it, I have no idea.) The argument would be that there is a difference between “sexual harassment” and “sexual assault” — that of course the kinds of actions you describe above are criminal, but that is because they cross the line into sexual assault, as opposed to “simple” (ie, largely if not exclusively verbal) sexual harassment.
I’m not endorsing that distinction, and it wouldn’t help Cain, because grabbing at a woman’s genitals and pushing your face toward her lap is clearly sexual assault. But I still wonder if that is what (some) of the pundits are thinking when they say that “sexual harassment doesn’t exist.”
Brett Bellmore - November 11, 2011 at 7:34 am
Wouldn’t necessarily harm Cain, either, as somebody accusing you of grabbing at a woman’s genitals and pushing your face towards her lap is clearly an allegation, not the actual act.
But, yes, I think the argument here is that “sexual harassment” either crosses the line into criminal acts, or constitutes free, if obnoxious, speech. That “sexual harassment” shouldn’t exist as a legal entity in a country with robust freedom of speech. Here’s an example.
dankrist - November 11, 2011 at 11:47 am
Um, looks like you found one (maybe one and half?).
DF - November 12, 2011 at 12:37 pm
What bugs me about the “real thing” phrasing in both this and the original posts is that it unnecessarily essentializes and distracts from the debate that should be going on. The question is not “is sex harassment a real thing”? Of course it is. Sometimes men (and even women) act horribly to one another, in sexualized ways, in the workplace and elsewhere. People can be awful without using violence, and can make one another’s lives miserable out of spite or any other small, petty, weak motivations. That’s a fact that transcends, but includes, the reality of workplace sex harassment.
This doesn’t mean that all accusations of sex harassment are valid or reasonable, only that the phenomenon of sex harassment does exist, and that its reality is unmistakeable rather than a pure invention. But this is different than the issue that is going on here.
The issue that people are discussing, or at least that I think they should be discussing, is whether sex harassment should give rise to a legal cause of action in the employment law setting. If you don’t think sex harassment exists, then obviously you also wouldn’t think it should be a cause of action. But assuming you don’t contest this (fairly straightforward) empirical reality, then it’s not a question about whether sex harassment is “real” or not, it’s about whether it should be civilly actionable.
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