As you've probably heard, audio from a 2005 conversation between Donald Trump and Billy Bush surfaced recently. In that, we can hear Trump saying some extremely inappropriate things. I'm going to stipulate that what he said was inappropriate and offensive and that there is no question as to that, but could the bosses at Days of Our Lives (where Trump and Bush were headed), Access Hollywood (Bush's employer), or Trump's company itself be held liable for sexual harassment?

I'm not a lawyer, and I don't pretend to be one, so this isn't legal advice, but here we go.

For illegal sexual harassment to occur, two things have to happen. First, someone has to be offended, and two, a "reasonable person" would have to be offended.

This means that if you say, "Hey, Kate, I like your hairdo," Kate could say that was sexual harassment because she was offended, but that doesn't meet the reasonable person standard, so Kate would lose her case. (Now, if someone creepily followed Kate around and repeated that daily even after she asked him to stop, then that would meet the reasonable person standard.)

Trump's statements definitely meet the reasonable person standard, so wouldn't that make it sexual harassment? Well, no, because it doesn't meet the actual offended person standard. Billy Bush (and presumably others because it was recorded and saved) wasn't offended, or if he was, he didn't claim to be. That has to happen. And it can't be you and me, hearing the conversation years after the fact.

In 2014, Colleen Bowling lost a sexual harassment case, even though a co-worker had sent her sexually explicit text messages. It seemed like a slam-dunk case, but the court found:

Plaintiff [Bowling] has failed to show that she had any belief that her employer was engaging in severe or pervasive sexual harassment when the complaint was made, let alone a reasonable, good faith belief. Even assuming Bennett was Plaintiff's supervisor and could thus expose Defendant to liability, it is clear that Plaintiff did not take offense to the comments until after Bennett's wife sent a threatening text message, which coincidentally marked the end of all personal messages.

Before you declare that that is horrible and we need to change the law, think about your favorite television show. If we make a standard that you can't say X, Y, and Z, could Game of Thrones be even produced? IMDB's parental guide says

Rated TV-MA for extreme scenes of strong bloody and brutal graphic violence involving gore and rape, explicit sexual content involving graphic sex and nudity, frightening images and strong language.

Summary: There is a lot of nudity framed in a sexual context, with some occurrences being more dramatic. Women and men are frequently shown topless. Fully visible frontal male nudity occurs a handful of times whilst female frontal nudity is obscured by pubis or not shown. Male and female buttocks are seen often as well.

These things can exist because the law requires someone to be offended. Presumably, the actors and writers are not offended, and therefore it's not considered harassment.

Now, if someone overheard Trump and Bush's conversation and complained about it, the companies would have been obligated to act. Things such as a hostile work environment require the sexual language to be "pervasive" but a one-time thing can be considered enough, as long as it's severe. So, if the camera person recording this complained, and Access Hollywood didn't act to fix the problem (which, in this case, could be as little as saying to Bush and Trump, "Stop that"), then that person could sue and win. The law doesn't require specific remedies, though, so just because the company didn't fire your harasser doesn't mean they didn't follow the law.

Does this mean you should allow sexually explicit language to fill your office? If everyone is participating, then surely, no one is offended? First, you can't assume that no one is offended because no one is speaking up. Heck, Trump himself recommended just finding a new job if someone sexually harasses you. Your employee may be doing just that--looking for a new job. If she (or he) can't find one, complaining about sexual harassment might come next. The longer you've let bad behavior go on, the harder it will be to fix it.

You should always investigate every claim of harassment, be it sexual, racial, religious or another form of harassment. Document. Be fair. And put an end to any questionable behavior before it becomes worse.

Published on: Oct 10, 2016
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