Many readers of this blog will appreciate a recent essay in the Fordham Law Review, “Consider the Source: When the Harasser is the Boss,” available on SSRN. The essay is coauthored by my William & Mary colleague Susan Grover and our recent graduate Kimberley Piro. Their work has already received quite a bit of attention in the virtual legal community — see here for analysis by Hank Chambers and here for analysis by Kerri Stone — so I simply wished to add a few thoughts of my own.
Under current doctrine governing workplace harassment, courts need not examine the relationship of the harasser to the harassed. Intuitively, most of us would probably agree that if the harasser has supervisory authority over the harassed, identical harassing behavior will inherently inflict greater harm. And an examination of the harasser’s status would seem to fit naturally within the Supreme Court’s requirement that harassment must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment'” in order to be actionable. Yet many courts bypass such an evaluation. Grover and Piro offer an eminently sensible prescription: that evaluation of the harasser’s status should be a necessary consideration of the inquiry into whether legally actionable harassing behavior has occurred.
Grover and Piro identify an intuitively appealing problem and suggest a relatively straightforward and manageable modification of present doctrine. Those of us less familiar with employment law might wonder why courts do not already incorporate harasser status into their analysis.
Perhaps the answer lies in the biographies of those responsible for elaborating the doctrine of sexual harassment under Title VII. Federal judges don’t have a “boss,” in any meaningful sense of the word. Indeed, many of them have not had a boss for a very long time. They enjoy virtually unassailable job security. They are used to the people working immediately around them — clerks, secretaries, staff attorneys — doing what the judge wants. And when they have an unpleasant interaction with a colleague, it is still an unpleasant interaction among equals.
Of course, I am not saying that no federal judge has experienced sexual harassment at the hands of a supervisor in his or her career. I am saying that, for many judges, the last job they held in which they were, or could have been, harassed by a supervisor is a decades-distant memory. Without salient personal experiences to contextualize the cases before them, judges may overlook a feature of the facts before them that seems quite obvious to most of the rest of us. Perhaps, then, Grover and Piro’s observations provide yet one more reason that appointing judges with a range of life experiences to the bench is important.