Which one is older: disco or sexual harassment? The answer is not as obvious as you think.

The history of sexual harassment (as a legal concept) goes way, way, back into ancient history, 1979. Prior to 1979, America had no such concept. An ogre boss was just an unpleasant fact for many working women. The law did not care.

The first significant step on this journey is 1964 with the Civil Rights Act. Title VII prohibits sex discrimination in the workplace. Employers could not define jobs as either male or female, with very rare exceptions. (Title VII does not mention harassment).

Our notion of sexual harassment as a legal right really started being discussed seriously in early 1970s. Sexual harassment (from the law’s point of view) is a form of sex discrimination. Still, courts were reluctant to allow women to sue their employers.

Legal activist Catharine MacKinnon is often given credit for the first serious work in this area, with her 1979 book entitled Sexual Harassment of Working Women. The topic went from academic discussions to practical applications at the workplace. Human resources officers started adjusting hiring policies, regulating at work activities, and chastising (if not terminating) the offending employees. Women (and men) sued for harassment at work, which was silently tolerated for the past generations.

Since 1979, the law of sexual harassment has been evolving, a growing concept. As of 2018, American courts have recognized two distinct types of sexual harassment: Quid Pro Quo and Hostile Work Environment. We will explain each briefly.

Quid pro quo is Latin, literally translated as “this for that.” In context, quid pro quo means an exchange of sex for workplace benefits. (In other words, the only way you will get promoted/hired/higher wages is if you have sex with the boss).

Sadly, as the #MeToo movement has demonstrated, the number of bad examples is huge and growing. Two that come readily to mind are Harvey Weinstein (movie mogul) and Bill Clinton (former President).

Wait! These two are different, very different. Harvey Weinstein is a monster forcing himself on unwilling women. In Clinton’s case, the sexual activity was consensual. Well, Yes and No. While it is true Bill did not drag Monica into an alleyway, the issue of consent is more problematic. True consent may not be possible because of the unequal power structure between the boss and an employee.

What would have happened to her job if she said “no”? Consent may not really be freely given when the alternative is unemployment.

Short answer: She said “yes” might not help you.

As a result, you have a dangerous situation whenever you have a “relationship” between the boss and subordinate worker. Consent assumes both parties have the power/ability to decline. For the underling, declining might risk your job. Hence, consent even if spoken aloud might not be real.

Short solution: Avoid workplace romance.

Will your office memo about avoiding workplace romances really work? Unlikely. However, you should discourage them, rather than pretending they do not exist.

Even between co-workers (equal level employees), the relationships can cause problems, when one person is promoted and now becomes the boss of current or former love interest.

Even if the romance is a success and the parties get married, the issue is not solved. It complicates the relationship if one spouse becomes the workplace supervisor of the other. Ask any married person if you are not sure.

(We will discuss employment policies and notices in future essays on this topic).

The second type of sexual harassment is a Hostile Work Environment. A hostile work environment is when the harassment is so constant that the workplace cannot properly function, at least for the discriminated employee.

The magic word from the statute is “permeated.” The hostile environment must be permeated with ill actions. A single bad act (nasty cartoon, email offensive joke, inappropriate discussion or touching) is not enough.

How many times does it take to be permeated? There is no math formula. The key issues are (1) How often did the bad actions occur? (2) How often did the employee complain, and (3) What did the employer do in response to the complaints?

A simple answer: If the employee has complained twice and you still have not done anything, you are probably in trouble. The more an employee complains, the more obligation the employer has to remedy the problem. Doing nothing looks very, very bad.

We could discuss several court cases to see the development of sexual harassment, but we can tell you almost fell asleep reading that sentence. Perhaps a better way to see the development of sexual harassment in through pop culture, specifically movies.

The first movie to discuss is 9 to 5, the classic with Dolly Parton, Jane Fonda, and Lilly Tomlin who are harassment by their ogre boss, played by Dabney Coleman.

9 to 5 is set in 1980, and (based on the attitudes of the time) took a humorous look at sexual harassment. The whole movie focuses on whether the “girls” will get some revenge on their boss. Nothing of substance is discussed. The film is a nice comedy set in a time when most people considered sexual harassment more of a joke than a serious issue.

Jump forward to 1994 with the movie Disclosure, written by Michael Crichton (of Jurassic Park fame). In Disclosure, Michael Douglas and Demi Moore deal with real workplace issues of sexual harassment. The unique twist on the movie was the female (Demi Moore) was the aggressor and the male (Michael Douglas) was the victim.

Jump again to 2005. Charlize Theron stars in North Country, a film based on the book Class Action written by Clara Bingham and Laura Leedy Gansler. This film takes an unflinching look at hostile work environment. Many movie goers avoided this film because it is not a light hearted comedy (like 9 to 5) but a hard hitting examination of the personal toll that sexual harassment takes on the individual workers.

(For those who have not seen the movie, basic plot of North Country without any spoiler: Single mother Josey Aimes (Charlize Theron) is one of the first women to work at a local iron mine in Minnesota. Offended that they have to work with women, male workers at Eveleth Mines lash out at them and subject them to sexual harassment. Appalled by the constant stream of insults, sexually explicit language and physical abuse, Josey — despite being cautioned against it by family and friends — files a historic sexual harassment lawsuit.)

The movies have shown the development of the issue. The issue started as less than serious concern among the male dominated workplace (9 to 5). Once sexual harassment became a concern, the public slowly realized that men are not always the aggressors and women not always the victims (Disclosure). Finally, society has changed and taken a serious look at past transgressions, hoping for a better future (North Country).

This takes us to the present. In America, in 2018, we have two distinct kinds of sexual harassment: quid pro quo (sex with the boss) and hostile work environment (constant teasing based on gender). They are two very different problems. A workplace can be cited for one kind or both kinds or harassment.

Both types of sexual harassment are actionable – leading to costly lawsuits and large fines (EEOC complaints) in addition to the terrible public relations!

If you are not concerned about sexual harassment, you should be. If you think this can never happen at your firm, you are wrong. If this issue makes you uncomfortable, you are not alone.

In future articles, we will discuss the laws and procedures surrounding sexual harassment in the workplace; how to protect your firm before and after an allegation; and how to change the culture at your firm. Sexual harassment is a very real problem in every industry. You need to plan for this difficulty.

You know the old saying, “An ounce of prevention…”

Look back at question in the introduction: Disco (some of you remember) started in 1960s and had its biggest impact in 1970s. Sexual harassment started as a legal concept in 1979. Therefore, disco is older than sexual harassment. FBA

Professor Marty Ludlum teaches business law at the University of Central Oklahoma and is a licensed attorney. He has made numerous presentations on the funeral industry at state and national conventions and had articles in national and state funeral magazines. Professor Ludlum has a Bachelor’s and Master’s degree in economics, a Master’s degree in communication and a Juris Doctor, all from the University of Oklahoma. Professor Ludlum is the Education Director for Osiris Funeral Home Software.

Kara Gray Ludlum is a CPA and licensed Funeral Director in Oklahoma. She operates Funeral Director’s Resource, Inc., a consulting firm specializing in providing Osiris computer software and funeral home accounting. She has made many presentations to state and national conventions. Kara has Bachelor’s degree in accounting from the University of Oklahoma and a Master’s degree in Business from Cameron University. Kara has taught accounting at Cameron University, and has owned and operated her family’s funeral homes for over 15 years.