Fixing the Abuse of "Hostile Work Environment" Law for "Unintentional Harassment"

Fixing the Abuse of  "Hostile Work Environment" Law for "Unintentional Harassment"

(This is a work in progress and it likely will be modified [especially in response to comments received] to help ensure correctness [real correctness, not "political correctness"], clarity, civil tone, and openness to new information and/or viewpoints.  I am not a social scientist nor a lawyer and there may be things that I have not yet considered because they have not been brought to my attention.)


It is worth noting that hostile work environment law did not come out of nowhere with the intent of giving women unlimited power over any male conduct and/or thoughts. Instead, the hostile work environment law was a response to a serious problem with  "severe" and/or "pervasively" hostile work environments.  The need for hostile work environment law still exists; the need has not magically gone away. There are most definitely work environments so "severe" and/or "pervasively" hostile I would not want the women in my life (or anybody) subjected to.  But, in some cases,  the law has been abused for tyrannical purposes. This article will first point out ways in which the vagueness of the law is being abused to promote tyranny.  Afterward, this article will suggest clarifications of the law. These clarifications should increase compliance with the law by reducing the uncertainty about what is allowed and what is not allowed.

Let me begin by apologizing for the bizarre term "unintentional harassment." This term probably seems like an oxymoron (and perhaps moronic as well) to most people because "harassment"  (almost?) always has the connotation of intent. Hostile work environment laws and training associated with things that bother women use the term "harassment" even when the "harassment" is incidental with no intent to bother women. It is important to understand that hostile work environment laws have essentially redefined (or at the very least used a very uncommon definition for) "harassment." Debasing the language by promoting unintentional annoyances to "harassment" is unfortunate because the debasement causes unnecessary confusion making rational discussion far more difficult. (Unfortunately, this debasing of the language is not unique. In my sexual harassment training at work I learned that "sexual harassment" need be neither sexual nor harassment by standard usage of those words.)  The "unintentional harassment" in the title of this article is necessary for clarity because the law seems to use a nonstandard definition of harassment.

This article will be confined to the issue of hostile work environments where there is no intent to make women feel uncomfortable, unwelcome, etc. Please keep this limitation in mind because some people discussing often use the same terminology regardless of whether there is intent or not.  Actions intended to make women feel uncomfortable, unwelcome, etc. should be in a very different category than actions that have no such intent. This note is NOT concerned with intentional harassment.

Double Sawbuck Corporation's Hostile Work Environment Lawsuit

Note that a "hostile work environment" is supposed to involve conduct that is so severe or pervasive that it alters the conditions of the alleged victim's employment.  It is hard to disagree that such conduct should not be permitted.  Unfortunately, the law is so vague about what counts as "severe" and/or "pervasive" that nobody seems quite clear on what is allowed and what is not allowed.  For example, people had quite different reactions to  the clip below on Double Sawbuck Corporation.
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The Shallot Financial News (04/01/2013)

A lawsuit was filed today alleging that Double Sawbuck Corporation (XX) had fostered a hostile work environment. XX dropped more than $2 on the news. The plaintiff, Mr. Exwye alleges that Double Sawbuck encouraged women, but not men, to report hostile work environments. The plaintiff alleges that all of Double Sawbuck's hostile work environment training related to male behavior that women found objectionable but included not a single instance of female behavior that men found objectionable. In particular, plaintiff alleges that management repeatedly emphasized that simply having a magazine such as the Sports Illustrated Swimsuit issue in a man's office created a "hostile work environment," whether or not the magazine was actually seen by anybody but the magazine owner. Additionally, a male employee (not Mr. Exwye) was forced to remove a picture of his wife from his computer, even though the computer screen was not visible from the hallway and the employee habitually used a lockscreen whenever he left the office or another person entered the office.

Plaintiff alleges that Double Sawbuck has neither enforced any "hostile work environment" rules against women, nor has Double Sawbuck even provided training in what males find objectionable in many females' behavior. Pressed for examples by this newspaper, Mr. Exwye declined citing Double Sawbuck's unwritten, but nonetheless enforced, policy that negative comments about hostile work environment rules would not be tolerated as these negative comments themselves created a hostile work environment. Mr. Exwye indicated that he did not want to create a hostile work environment, he just wanted to keep women from doing things that men found objectionable in addition to keeping men from doing things that women found objectionable. He said "Nobody should be subjected to a hostile work environment."

Double Sawbuck said that its policy and training were completely consistent with standard "hostile work environment" rules. Double Sawbuck said the company had not surveyed male employees about what Double Sawbuck males found objectionable about female behavior to avoid, on the advice of the company's lawyers, possible charges that the survey itself created a hostile work environment for women. When pressed for further details, Double Sawbuck declined citing ongoing legal action, but noted that its "hostile work environment" training was contracted out to the Habeas Viginti Training Corporation and that company's experts indicated that such a survey was completely unnecessary.
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This story was meant to be an obviously ridiculous spoof of  "hostile work environment" rules. (Can anyone seriously argue that simple criticism of the law creates a hostile work environment?)  In addition to some obviously ridiculous policies, there are numerous clues that this is a spoof.  (If you have trouble identifying all the clues, send me a note and I will point them out.) About half the people did indeed find the spoof hilarious.

There were two very scary alternative reactions:
1. Unfortunately,  some people reacted with ire because they had trouble distinguishing their employer's policies from Double Sawbuck's policies.
2. Even scarier, some people actually thought that all of Double Sawbuck's policies were reasonable and those same policies applied at their employer. Mr. Exwye was attacked as malicious for challenging the reasonableness and/or fairness of the policies.

The fact that people have wildly different opinions about Double Sawbuck's policies and Mr. Exwye's complaints indicates that there is a general confusion about what constitutes a hostile work environment. Part of the problem is that the law conflates behavior intended to harass women with behavior that has no such intent. To call both behaviors "harassment" is both confusing and dishonest. The law uses a warped definition of harassment.  Outside of hostile environment law,  "harassment" is almost always intentional. Of course, the fact that behaviors do not qualify as intentional harassment, does not mean that the behaviors need to be permitted; they DO need to be seen as different and distinct and they need to be described in distinctly different, clearer, and more honest language.

Almost since the invention of photography men have displayed photographs of sexually attractive nude or scantily clad women in men's workplaces. Men displayed such photographs in work environments containing no women (e.g. until recently, US Navy ships). As Americans we freed ourselves from British tyranny and, in the Declaration of Independence, declared that there were "... certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness .." It is almost beyond question that men displayed such photographs in accordance with a "pursuit of happiness," and not in an attempt to harass non-existent women in their workplaces. It seems unlikely that men have changed their motivation for displaying such photographs from a pursuit of their own happiness to an attempt to harass women. Men today still want to display such photographs because it gives them pleasure, not to harass women. Women perhaps can argue the case for denying men their "pursuit of happiness" because of the special character of the workplace environment, but it is without basis and disgustingly dishonest, arrogant, and self-centered  to suggest that these photographs are intended to harass women.

People trying to defend Double Sawbuck's policies against Mr. Exwye's claim that the policies were unfair to men did so in at least two ways. One woman ("the first") claimed that Double Sawbuck's policies were fair because the policies applied to all Double Sawbuck employees and not just men.  When I pointed out that although the policies might apply to all employees, Mr. Exwye's complaint was that the policies all targeted men. When I asked the woman whether it would then be fair for men to write the policies that applied to all employees but targeted women, this was not acceptable. This woman was comfortable with the pretense of fairness, but would not accept any suggestion that did not allow women essentially exclusive control over what was permissible in the workplace and what was not.

A different woman ("the second") apparently had no problem admitting that Double Sawbuck's policies were unfair, but she still would not admit that the policies were wrong. Specifically she justified the unfair policies by writing "Equality is very important to me. Across the board. Like many things though, there are generally layers of complexity involving historically relevant imbalances."  Now, the woman who wrote this had a legal background, so perhaps this gobbledygook actually means something to her. My background is in science and engineering and this gobbledygook is indistinguishable from a simple "get out of jail free" card.

The second woman's automatic gobbledygook dismissal would seem an attempt to accomplish:
1.  women are not subject to the same process as men
2.  because of 1, it is unnecessary to consider whether that process is fair and reasonable
3.  men cannot be victimized by women and this preserves the special victim status of women
4.  preserves women as the victims and men as the victimizers
5.  controls the message

In some sense, the second woman's comments at least honestly acknowledge her belief that hostile work environment policies are not required to be fair to men, even if the gobbledygook justification for the unfairness is, to put it mildly, highly questionable. The first woman's comment shows an abysmal shallowness of thought, apparently based on the notion that if a law targets men, but does so in gender-neutral language, then the law is fair. This is, of course, simply a pretense of fairness because if the law targets women, but does so in gender-neutral language, the law is unacceptable to women. (At least any woman that I have talked to find such a law unacceptable.)

Suggested Law Changes for Returning Sanity to the Law

The first change should be to separate harassment from "unintentional harassment."  This will preclude women claiming "harassment" when men simply are doing things that men have traditionally done in workplaces even when completely devoid of women.

Note that the fact that women find a behavior intolerable, does not mean that men are harassing women. It also does not mean that the behavior has to be permitted. It just means that the behavior has to be prohibited because women are intolerant of some traditional male behaviors. As such, "harassment" is not an appropriate category. A new category such as "Behaviors Prohibited by Intolerance" can be added to the modified law. This should both make it clear that even though these behaviors are not harassing, people do not have to tolerate these behaviors.

If the law sanctions women's intolerance of male diversity, what does this mean for men? Possibilities include:

1.  The law should allow men to be equally as intolerant of  female diversity.

2.  The law should drop the pretense of fairness and equality and the new category would be "Behaviors Prohibited by Women's Intolerance." If the law cannot be fair, at least the law should be honest and clear  about the unfairness.

3.  At an absolute minimum, the law should be clear about what behaviors are prohibited by women's intolerance. If men are expected to obey the law, the law should be clear about what male behavior is prohibited and what male behavior is not prohibited. There will always be some gray area, but the law should minimize the gray area to the extent possible.  The  hostile work environment training should make it clear that some things are not prohibited by the law because they do not reach the "severe or pervasive" hostile work environment standard. Currently the gray area, as least as understood by both women and men in the workplace, is unnecessarily large making management's enforcement arbitrary, capricious, and tyrannical.

With respect to item 3, note that most women who read the Double Sawbuck clip saw nothing wrong with Double Sawbuck's policies. My guess is that most of these women consider themselves to be "a reasonable woman." By the current "reasonable woman" standard, almost any behavior that women do not like can be prohibited simply by abusing power and defining any behavior, no matter how minimally and indirectly women are affected,  as "severe or pervasive"


The following changes to "hostile work environment laws"  are necessary:

1. Separate intentional harassment from "unintentional harassment." These should not even be part of the same law, Different laws and different language are needed because these are vastly different.

2. Women have tyrannically abused "hostile work environment laws" to unnecessarily restrict men's pursuit of happiness. Inasmuch as a basic American freedom is involved, any restriction on this freedom must be for compelling reasons (e.g. one cannot yell "fire" in a crowded movie theater for fun).  Any laws should trample on this freedom as little as necessary and only for compelling reasons.  Rewrite the laws recognizing that competing rights are involved. Women's right to intolerance needs to be appropriately balanced against men's right to pursue their happiness.

3. Get rid of the "reasonable person of the opposite sex" standard in favor of a "reasonable solution" standard. If there is a clear and compelling need to restrict men, this restriction should be a reasonable restriction. If a woman objects to a man's swimsuit calendar and a "reasonable solution" is presented whereby the woman does not have to view the calendar, then the woman must accept such a "reasonable solution."  If the matter comes to court, the court can then decide upon the reasonableness of the solution. If the court decides that the solution is not reasonable, the court can assign damages. If the court decides that the solution is reasonable, the court can assign damages against the woman for trying to deny men's pursuit of happiness for her own arbitrary and capricious reasons, rather than for a clear and compelling need to restrict men. If this is done, then because both parties have something to lose by being unreasonable, this should allow reasonable solutions to compelling problems without unnecessarily and unduly restricting basic American principles.









[[[[ More to come later.  Especially suggestions for improving the law. Keeping real protections for women, ensuring fairness to men,  and ensuring that the law goes no further in denying American men "... life, liberty, and the pursuit of happiness ..." than absolutely necessary. ]]]