SEXUAL HARASSMENT AND TV
(2000) 

During recent episodes of the popular television series "Nash Bridges," officer John Cage, played by pro wrestler Steve Austin, is in hot pursuit of an attractive brunette. 

This time, however, the unwilling target is not a hardened criminal.  She's officer Caitlin Cross, a female co-worker.  Ironically, this gun-toting police officer seems powerless to prevent Cage's constant advances: not satisfied with the results of their disastrous first date, Cage constantly demands that Cross go out with him again.  He even arrives at Cross's front door and once again asks for a date against her wishes. 

In turn, Cross, played by Yasmine Bleeth of Baywatch fame, makes only a passing reference to what many employers would be asking themselves--is this situation going to result in a lawsuit for sexual harassment.

The trouble here is that what is portrayed as acceptable behavior on prime-time television may in reality constitute sexual harassment under Title VII of the Civil Rights Act of 1964. The growing gap between the frank display of sexuality by society as a whole and what the courts currently view as appropriate behavior in the work place is bound to pose some difficult legal consequences for unprepared employers.

Consider the example of the sitcom "Just Shoot Me."  The character played by David Spade makes some not-so-subtle innuendoes about his fantasies for a menage a trois with two female staff members.  Again, this is served up as a part of every day life in the office and characterized as a universal male fantasy which can be explored in the work place. 

In reality, this type of behavior is all but prohibited by the courts.  A steady stream of sexual harassment cases in the roughly 10 years since the Clarence Thomas-Anita Hill hearings has made the topics of sex, sexual fantasies and sexual practices taboo in the work place. 

Specific acts cited in recent cases held by the courts to contribute to hostile environment sexual harassment include such things as discussion by the harasser of his dissatisfaction with his sexual relationship with his partner, questions to the victim about what kind of underwear or birth control she uses or the nature of her sexual proclivities.

Other examples include referring to a woman as "honey," invitations for drinks, dinner or to go home with the harasser, comments about a woman's legs or breasts, remarks about the tightness of her clothes, rating women on the basis of physical attributes as well as jokes and off-color remarks. 

Thus, the difference between the courts' standards of acceptable behavior in the work place and what is commonly shown on prime-time television is bound to cause confusion for many workers and lead to unfortunate legal battles. 

To be sure, even though the trend is clearly one of making sex off-limits in the work place, a few courts have allowed the standards of what is acceptable on prime-time television to serve as a guide for appropriate behavior in the work place. 

In Baskerville v. Culligan International Company, U.S. Court of Appeals, 7th Circuit (Illinois), the court said the concept of sexual harassment was not designed to purge the work place of vulgarity, and drawing the line between sexual harassment and vulgarity was not always easy. 

In Baskerville, the defendant called the plaintiff "pretty girl" in the office, made grunting sounds at her, stated she made the office "hot", told her when the public-address system came on it was time for the pretty girls to run around naked. 

Not surprisingly a jury determined the conduct amounted to sexual harassment.  But on appeal, the court overturned the verdict, stating that while the conduct was adolescent and vulgar, as a matter of law it did not constitute sexual harassment in our sex saturated society. 

"It is no doubt distasteful to a sensitive woman to have such a silly man as one' boss," the judges ruled "but only a woman of Victorian delicacy--a woman mysteriously aloof from contemporary American popular culture in all its sex-saturated vulgarity--would find Hall's patter substantially more distressing than the heat and cigarette smoke of which the plaintiff does not complain."

Despite Baskerville, employers would do well to remain constantly vigilant against work place conduct that can lead to charges of sexual harassment. Simply defending such cases is expensive, and jury verdicts for the plaintiff often exceed seven figures.

An interesting intersection of these problems arose recently in the case of Jerold MacKenzie v. Miller Brewing Co, wherein a discharged executive obtained a $20 million verdict at the trial court level against the Company for firing him.  The Company unsuccessfully defended the firing on the basis that a female employee complained after the executive discussed with her an episode from the then top-rated TV sitcom Seinfeld. In the episode Seinfeld forgets the name of his date, Dolores, and can only remember that it rhymes with a body part. 

Perhaps one cost-effective way to give employees on-going training about what constitutes sexual harassment would be to simply have them watch more prime-time television -- as long as they don't discuss it at the office. 

Denise Serra is Of Counsel to the San Francisco Bay Area law firm of Donahue Gallagher Woods LLP, and specializes in employment discrimination. 

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