The courts will be the last institutions in America to “get” sexual harassment.

When the Harvey Weinstein bombshell blew open the #MeToo campaign and women everywhere began to share stories of rape, assault and sexual harassment at work, you will notice that no one said, “and I went to court and sued those bastards and got justice.” As every employment lawyer knows, the courts have put up more barriers to women seeking justice after harassment on the job than all of the recent denials and apologies from high-profile men combined.

State and federal laws prohibit employment discrimination. From that prohibition the courts have constructed an increasingly higher bar for proving that sexual harassment violates the law. The original ruling required that harassment must “affect a term, condition or privilege of employment” to survive in court, which is reasonable. But the federal courts have made this standard more and more demanding. Conduct must be “extreme” and “so intimidating, offensive or hostile that it poisoned the work environment.”

Armed with this vague, stringent and completely judicially invented bar to women seeking redress for harassment on the job, the courts have set about categorically eliminating behaviors they don’t think are serious enough to warrant a jury’s time. Even sexual assault isn’t enough if it doesn’t happen often enough.

Remember Paula Jones? She was thrown out of court after alleging that then-Gov. Bill Clinton pulled her to him, tried to kiss her, exposed himself to her and asked her for sex. Because it only happened once, she was expected to keep going to work unfazed.

Even as the larger society catches on to what it means to be harassed at work, courts burrow further into their rabbit holes, relying on their previous decisions to dismiss misogynist power plays as “merely rude and unpleasant.” In a recent case out of the Eighth U.S. Circuit Court of Appeals, which hears cases from Minnesota, three male judges dismissed the case of a woman who had experienced male co-workers standing extremely close to her with obvious erections, blocking her exit from her cubicle and coming uninvited into her workstation. While the court acknowledged the alleged conduct was “vile or inappropriate,” the case was kicked out because it did not “rise to the level of actionable sexual harassment.”

In justifying this judgment, the court pointed to its own cases where it had found that plaintiffs had not established actionable harassment when, among other scenarios, a harasser asked the plaintiff to watch pornographic movies and masturbate together; suggested that the plaintiff would advance professionally if the plaintiff caused the harasser to orgasm; “grabbed” the plaintiff’s buttocks; “brush[ed]” the plaintiff’s groin; “reached for” the plaintiff’s genitals, and “briefly gripped” the plaintiff’s thigh.

If a woman must top that behavior to get a day in court, the law has lost its meaning.

The echo chamber of case precedent has led the courts far from the underlying question: When is harassing conduct enough to change the terms and conditions of employment? According to case law, assault is not enough, daily belittling and sexist remarks are not enough, propositions and touching are not enough. The courthouse doors are shut, and the key is turned in the lock when it comes to sexual harassment complaints.

A 2007 study showed that 70 percent of discrimination claims are dismissed by judges without ever going to a jury. Two-thirds of the approximately 3,000 judges on the federal courts are men. Eight of the nine judges on the Eight U.S. Circuit Court of Appeals are white men, and no woman has been nominated to fill its two vacancies.

Should this rarefied group get to decide what women have to tolerate at work? Shouldn’t sexual harassment victims have a chance to present their cases to a jury of their peers?

If Al Franken stays on as a U.S. senator, one way for him to make amends would be to help take sexual harassment law back to the place it was meant to be. Amend Title VII, if necessary, to give harassment plaintiffs back their day in court. It’s past time.

 

Jean Boler, of St. Paul, is a lawyer representing women in discrimination claims. She was one of the lead lawyers in the Jenson vs. Eveleth Taconite Co. case on which the film “North Country” was based.