Trump, Sexual Harrasment And The Workplace

It is axiomatic to say that no woman should be subjected to sexual harassment in the workplace. Let's double down on that and say that no person should be subjected to harassment generally in the workplace -- not the handicapped, not someone who is gay or black or Jewish or purple. No one.

If only it were true.

As we all know only too well, it is not true. Harassment comes in all forms. It comes from rich, influential men exerting their power and it comes from sad, silly bosses trying to assert their own. It comes from co-workers who are racist, and it comes from supervisors who are clueless.

We are human. That's the bad news; we can be stupid and racist and willful and sexist. But that is also the good news, because we are also hopeful and caring and daring and strong.

And that is where the law comes in. While I like to poke fun at my former profession as much as anyone, to bastardize Shakespeare, I come today to praise the law, not bury it. The beauty of the law is that it attempts to set a standard to which we all must meet. You have to meet it whether you are Donald Trump, or Hillary Clinton, or the grocer down the street.

We are a land of laws, not men, or women.

What does that mean, actually? It means, for instance, that a subordinate like Gretchen Carlson can sue her powerful boss Roger Aisles for sexual harassment and that even he is held to a standard that we deem appropriate for the workplace. That is the beauty of law.

Is law flawed? Of course. Jim Crow laws were the law. Women didn't have the right to vote until 1920. Alcohol was banned in 1920, for crying out loud!

But in the context of the workplace, we as a society have made incredible strides in the past 50 years. Whereas once it was acceptable to not hire someone because of their race or religion or sex, today that is illegal. While Don Draper could pat a secretary on the behind without fear or retribution, that sort of behavior is now not only illegal, it is considered morally reprehensible.

The beauty of the law is that attempts (usually, hopefully, and not always successfully) to take into account changing social mores and attempts to transform them into workable rules. Sexual harassment, for example, violates Title VII of the Civil Rights Act of 1964. According to the Equal Employment Opportunity Commission,

"It is unlawful to harass a person (an applicant or employee) because of that person's sex. Harassment can include ... unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex.

Does that mean that all such discussions are verboten? No. The EEOC says, "[T]he law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious."

So where is the line? There are two forms of sexual harassment that are considered actionable. The first is the situation where the harassment is so commonplace that it creates what is known as a "hostile work environment." The other is what is known in the law as a "quid pro quo" -- literally "this for that." A promotion is promised in exchange for a sexual favor.

Among many other reasons, the rash of stories of powerful men behaving badly has made this a very sad political season. That said, at least in the workplace, victims of sexual harassment now have tools and rules that are leveling the playing field.

In law we trust.

(This post was first published in USA TODAY.)

Need help? In the U.S., call 1-800-656-HOPE for the National Sexual Assault Hotline.