The Changing Face of Sexual Harrassment

By Justin Clark, Nerve.com. Posted September 30, 2005.

In the late spring of 1999, twenty-nine-year-old Julie Overmyer, a svelte, cheerful former art student and recent Los Angeles transplant, was offered a job as personal assistant to the head of a new clothing company. The position came with some surprises.

"I used to go over to his house to take dictation, and he'd answer the door in his tighty-whities," recalls Overmyer of her boss, Dov Charney, the iconoclastic founder of American Apparel. "He'd make small talk when I got there, asking me about my boyfriend, or do I think guys in L.A. are hot, and what are my sexual experiences. Then it was on to business."  
At American Apparel, that transition wasn't difficult, she says. Though hired as a personal assistant, Overmyer was asked and agreed to model the company's tank tops and skirts. The company's ads feature scantily clad models, many of them company employees, shot in a voyeuristic amateur style viewed by some as refreshing and others as gratuitious. But as any vaguely metropolitan fashion consumer knows, American Apparel doesn't toe the established corporate line. The company has smirked at the models of both labor and business, paying a living wage but discouraging its employees from unionizing.     

But it's Charney's alleged personal actions, not his racy ads or $250 million in annual sales, that has created trouble for American Apparel. Since the beginning of the summer, the company has found itself embroiled in several well-publicized sexual harassment suits brought by former American Apparel workers and contractors who allege they were exposed to crude language, asked to hire employees Charney was attracted to, and in one case given a sex toy. Overmyer quit American Apparel after four months, but she has not joined the lawsuits. In fact, she stresses that Charney's "eccentric behavior," as she calls it, had nothing to do with her resignation. "I quit because I didn't appreciate the way he handled business," says Overmyer. "If you were a vendor, he had no qualms about calling you a fuck-up."     

But it's Charney who has been painted as the fuck-up in dozens of articles and blog posts. The most famous account was supplied by a Jane magazine reporter, who claimed that Charney masturbated in her presence eight times. Articles followed in the New York Times, the San Francisco Chronicle and Business Week.     

The reasons for the attention may be worth pondering. Countless public figures have been accused of sexual harassment since the world learned that the semen-like stain on Monica Lewinsky's dress was, in fact, semen. Arnold Schwarzenegger's 2003 gubernatorial campaign was dogged with numerous accusations of unsolicited groping. Last month, Australia's Labor Party leader John Brogden attempted suicide after he admitted to fondling a reporter while drunk.     

Still, Dov Charney is a relatively unknown figure, and Overmyer says she is surprised by the extent of the public's interest. She suggests it's not Charney's specific actions but his company's sexually brazen culture that's on trial. In many ways, Overmyer may be right: fifteen years after Anita Hill and Clarence Thomas insinuated sexual harassment into the popular consciousness, a new wave of court decisions, legislation and business practices is renewing the debate.    

Is Dov Charney the tighty-whitied Rosa Parks of those who seek to desegregate business and pleasure? How far will new restrictions against sexual expression at work reach? Is there still room for nookie -- or even talking about it -- at the office? Two lawsuits coming down the pike may answer those questions, and both directly impact the American Apparel case. The first was brought against Warner Brothers by a typist who claimed to have been offended by crude language and behavior in the writer's room of the show Friends. A decision in favor of the studio was overturned on appeal, and the case is now headed for the California Supreme Court.

According to Adam Levin, defense lawyer for both the Warner Brothers and American Apparel suits, these issues aren't necessarily just about randy employees soliciting sex from the uninterested. While sexual harassment claims originally centered around "quid pro quo harassment" -- either you sleep with me or you don't get the promotion, or even lose your job -- Levin says such claims have increasingly advanced into the realm of "hostile environments," in which crude or racy language, even that which is overheard and not directly targeted at the alleged victim, can constitute harassment. Levin says in the second case, the court should impose stricter limits on liability in the "communicative workplace" -- creative environments that might be hampered by restrictions on potentially embarrassing or offensive speech.    

 "It's our position that an employee cannot complain, knowing that offensive speech is part of the job," says Levin. "Everyone knows that Friends uses sexual innuendo. It would be an odd result if someone could take a job on Deadwood or Sex and the City and come in with their own agenda." Levin says he plans to defend Charney on the same grounds: "It's our position that where a company has an ad campaign that includes elements of sexuality, it's axiomatic that employees who work there agree to accept such imagery and language."     

In both cases, Levin is careful to stress that he isn't defending targeted speech. In the Friends suit, the plaintiff, Amaani Lyle, alleges that the writers discussed Courtney Cox's love life and David Schwimmer's sexual orientation, not Lyle's. But even targeted speech or expression doesn't automatically result in a mega-million-dollar award, so long as the alleged harassment isn't "severe or pervasive," the standard courts use when deciding whether actual working conditions were altered. Nevertheless, though the courts may decide that Charney's alleged use of words like "cunt" or his reported encouragement of staff masturbation sessions weren't "severe or pervasive," he still may face consequences.     

In 1999, Jeremy Ringermacher was a twenty-year-old art student at the notoriously liberal California Institute of the Arts. He and classmate Ariel Rosenberg submitted a three-foot drawing titled "The Last Art Piece," which realistically depicted a number of CalArts faculty, staff and students in an orgy. When an eighty-two-year-old CalArts cashier depicted in the drawing learned it was on display in the school gallery, she suffered an asthma attack and had to be hospitalized.     

Part of the school's defense was that the drawing was only on display for a day. A subsequent class-action suit against the school was dismissed and is currently under appeal. But in the meantime, Ringermacher says the case has jeopardized his current career -- as a ventriloquist doll maker. "Someone posted a note on the internet a week before I was supposed to present all my figures at a convention in Las Vegas. They sent it to thousands of my clients and said I was a sexual assailant," said Ringermacher. "I lost thousands of dollars." In the second case, Miller v. Dept. of Corrections, the same court elected to lower the bar in cases of sexual nepotism, allowing an employee to sue for sexual harassment after one of her peer coworkers had an affair with their boss.     

According to Garry Mathiason, the decision resurrects a policy recommended in the early 1980s by the Equal Employment Opportunity Commission, the government agency responsible for pursuing harassment claims. "There was a famous case involving the Securities and Exchange Commission that set this out: if you have rampant sexual favors at such an extreme level that it permeates the entire environment, it's harassment, and absent that, it isn't," says Mathiason. The courts rejected the agency's call for a stricter regulation against sexual favoritism. "The author of that stricter regulation, ironically enough, was Clarence Thomas," Mathiason chuckles.

The decision by California judges to resurrect Thomas's policy was controversial among ethicists. "The Miller case pushes harassment out of the bounds where it's supposed to be," says David Gebler, president of Working Values, a business ethics consultancy. "Harassment is supposed to be a tort, an action against one person by another, not a simple conflict of interest."

While the Miller case may seem likely to affect only those of us intent on dating a superior or subordinate, experts say it could ultimately affect all workplace flings, leading the number of workplaces with explicit dating policies, currently estimated to be only fifteen percent, to increase dramatically. As a result, says Gebler, your company may be next.     

If you live in California, it's a serious possibility. Last year, the state legislature required all companies with more than fifty employees to institute sexual-harassment-prevention training. The new statute, admits human resources consultant David Bowman, "is an absolute boon for trainers." Meanwhile, employers concerned about ever-more-prevalent workplace romances are increasingly asking employees to sign "love contracts", liability waivers that protect the company from the consequences of fishing trips conducted off the company pier. Take, for instance, this excerpt from a sample boilerplate contract circulating among human resource managers:

"Dear [Name of Object of Affection]: I very much value our relationship and I certainly view it as voluntary, consensual and welcome and I have always felt that you feel the same. However, I know that sometimes an individual may feel compelled to engage in or continue a relationship against their will out of concern that it may affect the job or working relationships… I want to assure you that under no circumstances will I allow our relationship or, should it happen, the end of our relationship, to impact on your job or our working relationship. Though I know you have received a copy of [our company's] sexual harassment policy, I am enclosing a copy [Add Specific Reference To Policy As Appropriate] so that you can read and review it again. Once you have done so, I would greatly appreciate your signing this letter below, if you are in agreement with me…"

While legal aphrodisiacs and the new California court decisions might serve to reinforce the limits of appropriate behavior, some critics say they are doing just the opposite. "People are always on guard, because the category of "hostile environment" is so loose and continually changing," says Daphne Patai, a professor at the University of Massachusetts-Amherst who has written several books criticizing what she calls the "sexual harassment industry."

"The courts have arrived at some crazy situation where you don't have show any economic damage," says Patai. "Sometime in the mid-'80s, they decided that you don't have to show economic or psychological damage, you just have to show you didn't like it. And that's not a reasonable legal standard."

So what do First Amendment lawsuits have to do with those of us who aren't art students, sitcom writers, or underwear designers? Everything, says Patai. "It's the workplace attempting to defend itself before the suits begin. The Draconian measures take place before the lawsuits," she says.

Patai argues that the feminist push for stricter sexual-harassment codes now serves as ammunition for conservatives who want to limit discussion of sex in the classroom. "The only affirmative defense an employer could have was that they had acted immediately. The employee only has a hope of case by having a record of complaining early and often."     

The result is that the war on sexual expression is usually fought on the sub-legal level. Company or university policies typically call for much more prudishness than the courts. In many cases, they impose anti-fraternization policies of questionable legality. "If you read sexual-harassment regulations distributed to people in universities, they're so loosely cast. The offending behavior could be anything," says Patai. "Academics are explicitly told in handbooks that sexual harassment can be a one-time thing."     

In many cases, company heads dictate sexual harassment policy, and some are more liberal than others. "We're a company that's twenty-five years old. All of our senior management, except one, met here at The Princeton Review," says Harriet Brand, a spokesperson for the New Jersey-based company. "I keep a list of couples who met here. That's up to forty-five or fifty."     

Of course, Brand knows the precise number of interoffice couples because the company has to ensure that parties to a relationship don't supervise each another, she says, which might instigate the concerns that prompted the Miller decision. Such an outcome is usually expensive: the average jury verdict in a California sexual-harassment case exceeds $1 million, says Mathiason.     

But just as sexual harassment lowers morale, so does an overly restrictive work environment. This may explain why some companies boast of being more liberal about workplace romance, or even encourage it (Southwest Airlines' stock market abbreviation is LUV, a reference to its workforce, which includes 1,000 couples). Most companies find themselves acting like nervous parents on prom night, according to Dr. Pepper Schwartz -- laying down rules they know probably won't be kept anyway. In many cases, that means establishing a legal defense, not actually changing behaviors.   

Proof of that, says Schwartz, is that sexual harassment has become a catch-all for any behavior, ethically permissible or not, that may create a legal liability for the company. For example, a man calling a female co-worker a "bitch" might more properly be called gender harassment, yet it's frequently included in sexual harassment claims. Under the law, it's unclear why sexual nepotism is bad, says Schwartz. Is it because it's a devastating experience for those who consent to it, or because third parties have been denied an equal opportunity, or both?     

"My generation fought hard not to have institutions act in loco parentis for adults," says Schwartz, a professor of sociology at the University of Washington and former "Sex and Health" columnist for Glamour magazine. "But because there's an economic advantage to placing institutions in role of parents, the institutions are fighting back."     

Mari Florence, author of Sex at Work: Attraction, Harassment, Flirtation, and Discrimination, says companies are indeed doing more parenting. She argues that while the new developments in the sexual harassment arena will not eliminate workplace romance, they will formalize it.     

"What it may dampen are the more casual affairs," says Florence. "People may think twice about the one night stand after happy hour."

Nevertheless, says Janet Lever, a Cal State sociology professor who studies intimate relationships, people have as much a right to flirt or to have one-night stands as they do to marry. Having to notify HR that your cubicle-mate is also your fuck buddy can ruin the mood, she says. It may be unfair to expect the estimated fifty percent of American workers who have conducted an office affair (half of whom marry) to act out their sex lives elsewhere. "Flirtations can actually make the workplace a better place to be," Lever says. She conducted a study of 15,000 workers; half agreed.   

It's hardly the attitude that company lawyers or human-resources officials like to hear, but it may make sense. "People spend more time in the workplace than ever before," says Lever. "We all give lip service to how nice it would be to be friends first. It doesn't happen in a club. You really do establish friendships at work, and you can see how people act under pressure. The woman knows how the guy in the cubicle next to her treats his mother because she can overhear his phone calls."

Most experts interviewed for this article were uncertain what has prompted the recent court decisions and legislation. Especially puzzling is the fact that sexual harassment claims have been on the decline since 2000, according to EEOC statistics. Lever suggests an increased number of women in management, where sexual-harassment cases become even more dangerous. Florence ventures that because more jobs are leaving California, the state has an interest in promoting job security. Both suggest that the expanded code will protect more victims. They also acknowledge that the new laws may be abused by opportunists and manipulated by conservatives to restrict sexual liberty. All agree that where California goes in its harassment code, the entire country eventually follows.     

If sexual-harassment policy becomes increasingly strict nationwide -- as both critics and supporters of the new developments suggest it will -- it is likely to affect all workers, not just the alleged victims or harassers. For those who feel they've had to put up with too many off-color jokes, it will be justice long overdue.

But for Overmyer, the American Apparel employee who took notes for her nearly naked boss, it will simply be one form of tyranny replacing another. "Any industry that is building an image that is more sexual, for you to take that creativity and expect it to not be in that person, and expect them to act corporate -- I don't think it's fair," she says. "I don't know which way is better."

              

Justin Clark has written for L.A. Weekly, Psychology Today and Black Book.

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