Michael Crichton - Disclosure

"Yes," he said, nodding.

"Well. Arguably you do. It's a jury case, and we don't know what would happen if we went to trial. But based on what you have told me here, I have to advise you that your case is not strong."

Sanders felt stunned. `Jesus."

"I don't make the law. I'm just telling you frankly, so you can arrive at an informed decision. Your situation is not good, Mr. Sanders."

Fernandez pushed back from her desk and began to stuff papers into her briefcase. "I have five minutes, but let me review for you what sexual harassment actually is, under the law, because many clients aren't clear about it. Title VII of the Civil Rights Act of 1964 made sex discrimination in the workplace illegal, but as a practical matter what we call sexual harassment was not defined for many years. Since the middle nineteen-eighties, the Equal Employment Opportunities Commission has, under Title VII, produced guidelines to define sexual harassment. In the last few years, these EEOC guidelines have been further clarified by case law. So the definitions are quite explicit. According to the law, for a complaint to qualify as sexual harassment, the behavior must contain three elements. First, it must be sexual. That means, for example, that making a profane or scatological joke is not sexual harassment, even though a listener may find it offensive. The conduct must be sexual in nature. In your case, there's no doubt about the explicitly sexual element, from what you have told me."

"Okay."

"Second, the behavior must be unwelcome. The courts distinguish between behavior that is voluntary and behavior that is welcome. For example, a person may be having a sexual relationship with a superior and it's obviously voluntary-no one's holding a gun to the person's head. But the courts understand that the employee may feel that they have no choice but to comply, and therefore the sexual relationship was not freely entered into-it's not welcome.

"To determine if behavior is really unwelcome, the courts look at the surrounding behavior in broad terms. Did the employee make sexual jokes in the workplace, and thus indicate that such jokes from others were welcome? Did the employee routinely engage in sexual banter, or sexual teasing with other employees? If the employee engaged in an actual affair, did they allow the supervisor into their apartment, did they visit the supervisor in the hospital, or see them at times when they didn't strictly have to, or engage in other actions that would suggest that they were actively and willingly participating in the relationship. In addition, the courts look to see if the employee ever told the supervisor the behavior was unwelcome, if the employee complained to anyone else about the relationship or tried to take any action to evade the unwelcome situation. That consideration becomes more significant when the employee is highly placed, and presumably more free to act."

"But I didn't tell anybody."

"No. And you didn't tell her, either. At least, not explicitly, so far as I can determine."

"I didn't feel I could."

"I understand you didn't. But it's a problem for your case. Now, the third element in sexual harassment is discrimination on the basis of gender. The most common is quid pro quo-the exchange of sexual favors in return for keeping your job or getting a promotion. The threat of that may be explicit or implied. I believe you said it was your understanding that Ms. Johnson had the ability to fire you?"

Yes. "How did you gain that understanding?" "Phil Blackburn told me." "Explicitly?" "Yes."

"And what about Ms. Johnson? Did she make any offer contingent on sex? Did she make any reference to her ability to fire you, in the course of the evening?"

"Not exactly, but it was there. It was always in the air."

"How did you know?"

"She said things like `As long as we're working together, we might as well have a little fun.' And she talked about wanting to have an affair during company trips we would make together to Malaysia, and so on."

"You interpreted this as an implied threat to your job?"

"I interpreted it to mean that if I wanted to get along with her, I had better go along with her."

"And you didn't want to do that?"

“No.”

"Did you say so?"

"I said I was married, and that things had changed between us."

"Well, under most circumstances, that exchange alone would probably serve to establish your case. If there were witnesses."

"But there weren't."

"No. Now, there is a final consideration, which we call hostile working environment. This is ordinarily invoked in situations where an individual is harassed in a pattern of incidents that may not in themselves be sexual but that cumulatively amount to harassment based on gender. I don't believe you can claim hostile work environment on this single incident."

"I see."

"Unfortunately, the incident you describe is simply not as clear-cut as it might be. We would then turn to ancillary evidence of harassment. For example, if you were fired."

"I think in effect I have been fired," Sanders said. "Because I'm being pulled out of the division, and I won't get to participate in the spin-off"

"I understand. But the company's offer to transfer you laterally makes things complicated. Because the company can argue-very successfullv, I thinkthat it does not owe you anything more than a lateral transfer. That it has never promised you the golden egg of a spin-off. That such a spin-off is in any case speculative, intended to occur at some future time, and it might never happen. That the company is not required to compensate you for your hopesfor some vague expectation of a future that might never occur. And therefore the company will claim that a lateral transfer is fully acceptable, and that you are being unreasonable if you turn it down. That you are in effect quitting, not being fired. It will place the burden back on you."

"That's ridiculous."

"Actually, it's not. Suppose, for example, you found out that you had terminal cancer and were going to die in six months. Would the company be required to pay the proceeds of the spin-off to your survivors? Clearly, no. If you're working in the company when it spins off, you participate. If you're not, you don't. The company has no broader obligation."

"You're saying I might as well have cancer."

"No, I'm saying that you're angry and you feel the company owes you something that the court will not agree it does. In my experience, sexual harassment claims often have this quality. People come in feeling angry and wronged, and they think they have rights that they simply don't have."

He sighed. "Would it be different if I were a woman?"

"Basically, no. Even in the most clear-cut situations-the most extreme and outrageous situations-sexual harassment is notoriously difficult to prove. Most cases occur as yours has: behind closed doors, with no witnesses. It's one person's word against another's. In that circumstance, where there is no clear-cut corroborating evidence, there is often a prejudice against the man."

"Uh-huh."

"Even so, one-fourth of all sexual harassment cases are brought by men. Most of those are brought against male bosses, but one-fifth are brought against women. And the number is increasing all the time, as we have more women bosses in the workplace."

"I didn't know that."

"It isn't much discussed," she said, peering over her glasses. "But it's happening. And from my point of view, it's to be expected."

"Why do you say that?"

"Harassment is about power-the undue exercise of power by a superior over a subordinate. I know there's a fashionable point of view that says women are fundamentally different from men, and that women would never harass an employee. But from where I sit, I've seen it all. I've seen and heard everything that you can imagine and a lot that you wouldn't believe if I told you. That gives me another perspective.