The recent leaked footage of Donald Trump and Billy Bush reducing women to sexual objects and boasting about sexual assault has pushed sexual harassment once again to the forefront of a national conversation. Mr. Trump’s belief that calling the discussion “locker room talk” excused him from culpability reflects an utter denial of what qualifies as sexual harassment. In reporting about the incident, U.S. News and World Report reflected back on Anita Hill’s testimony against then-Supreme Court nominee Clarence Thomas and asked “[H]as the nation really evolved on the issue of sexual harassment and assault.” While certainly some progress has been made, the attacks on Mr. Trump’s many accusers as well as the disregard by some of the importance of the allegations suggests that there is still quite a bit of progress to be made.
The Equal Employment Opportunity Commission has defined sexual harassment to include: unwelcome sexual advances; requests for sexual favors; and other verbal or physical conduct of a sexual nature when the conduct implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. Conduct described by Mr. Trump (“grabbing women by their p----y”) and the conduct alleged by various women against Mr. Trump (forcibly kissing them) would all likely be found as unlawful sexual harassment. For harassment to be unlawful, it must be unwelcome and must be “sufficiently severe or pervasive.” “Locker room talk” or “boys will be boys” are not valid legal defenses.
Following the release of the tape, the New York Times reported on the costs of harassment to women in the workplace. “The burden of avoiding and enduring sexual harassment and assault results, over time, in lost opportunities and less favorable outcomes for girls and women. It is effectively a sort of gender-specific tax that many women have no choice but to pay.” Women may be reluctant to come forward; they often pause and weigh the consequences of reporting harassment. The national discussion that has ensued provides a good time for employers to make sure that all of their employees, from top to bottom, understand what conduct qualifies as sexual harassment in the workplace.