Sexual Harassment And The "One Free Grope" Rule

“Are you ticklish?”

“How you doin’?”

“I just think of you as a painting hanging in the courtroom.”

“You’re sweet like candy. The candy tastes sweet, but I don’t know how you …”

“I don’t think he was actually threatening kidnap her, he was just warning her. He was being nice!”

“I know she said her boundary is that I not touch her, but what if my boundary is to touch her?”

“Some women are just too good looking, and men have to stare at them.”

“He’s emotionally fragile right now, so you should just be nicer to him. Would it hurt to spend a little time with him?”

“I’ve known other women who worked with him and never said they were uncomfortable – and they were really pretty!”

“I mean you’re pretty, but not rape-able pretty.”

If you were a juror, how many of the statements above, taken individually, would you consider sexual harassment? How many of the statements, combined with one incident of groping, would you consider sexual harassment?

In 1998, Gloria Steinem wrote a much-criticized op ed for the New York Times called, Feminists and the Clinton Question.[1] In her article, Steinem characterized Bill Clinton’s behavior toward women accusing him of sexual harassment as “gross, dumb, and reckless” but explained his continued popularity with women voters, saying that, even if women voters believed all of Clinton’s accusers, which she says she did, his behavior was not “sexual harassment” under the law. She explained that because all of his accusers (at that time) agreed that Clinton stopped when they said “no,” Clinton had not violated the core standard of sexual harassment law: Consent.[2] By contrast, she explained, Clarence Thomas created a hostile work environment for Anita Hill by repeating unwanted behavior.

Sexual harassment law, Steinem explained, is not intended to prevent sexual conduct itself, but rather unwanted, non-consensual conduct. What Steinem called the “Clinton Question” was quickly characterized as the “one free grope rule” by conservative columnists.[3] Excusing Clinton’s abuse of power, they argued, was purely political and inconsistent with treatment of republican politicians.

In 1999, Juanita Broaddrick went public with the allegation that Bill Clinton had forcibly raped her. Steinem appears to have stayed silent as to that allegation and whether it answers the Clinton Question.

Whether you call it the Clinton Question, the One Free Grope Rule, or Just Locker Room Talk, both Oregon and federal sexual harassment law say that unwanted conduct must be “severe or pervasive” enough to alter the conditions of employment before it is considered unlawful harassment under employment law. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986), OAR 839-005-0030(1)(b).

While we all kind of know that “severe” means “really bad,” and “pervasive” means “really often,” the standard has continued to be less than clear, particularly as it is applied in practical workplace prevention efforts related to sexual harassment. See, e.g., Christian v. Umpqua Bank, 984 F.3d 801, 809-10 (9th Cir. 2020). The Supreme Court has explained, “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships.” Id. (quoting Oncale v. Sundownner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998)). But, if you like so many people, are asking yourself when you are allowed to grope your coworkers and when it’s not allowed, that standard is less than helpful.

In Oncale, a Supreme Court opinion published less than an month before Gloria Steinem’s “Clinton Question” op ed, Justice Scalia attempted to clarify the severity or pervasiveness constellation (aka the “when you get to grope” standard), saying, “A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office.” Id.

So, in 1998, conservatives and liberals alike seemed to agree that free gropes were available under sexual harassment law for some elites, like politicians (if we like them) and football coaches, but potentially not for everyone, according to Scalia.

It may feel like 1998 was a long time ago for football fans, but today a lot has changed and nothing has changed. The confusing severe or pervasive, “free gropes,” standard continues to exist in sexual harassment law, and celebrities continue to excuse groping. For example, in a 2017 interview with ABC news, Matt Damon described what he believed to be a “continuum” of harassment from bad harassment like “rape and child molestation or whatever” to maybe-okay harassment like the public groping Al Franken engaged in and “the Louis C.K. thing” (aka masturbating in front of people who worked for him).[4] In Damon’s view, unlike rape and child molestation, legal consequences for groping and public masturbation merely encourage men to deny the behavior for fear their “life’s going to get ruined.”

In reality, assault and battery have been illegal at common law for centuries.[5] In the 1704 opinion Cole v. Turner, the Chief Justice of the King’s Bench explained, “if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery … but if any of them use violence against the other, to force his way in a rude inordinate manner, it will be battery.”[6] Early common law in the United States, likewise, recognized battery under both civil and criminal law. In 1900, for example, it was criminal battery for a physician to ask a woman to undress and then ask her to sit on his lap, although she consented at the time, where she later learned it was not necessary to any treatment.[7] Other traditional examples of battery included “rude touching” like seizing a breast pocket of a jacket, pushing a hat back, and snatching a paper from someone’s hand. See W.D. Rollison, Torts: Assault, Battery, Notre Dame Law Review, Vol. 17, Issue 1 at 6 (1941) (note that although this article is titled “torts,” in many of the historical cases the author cites, the touching was charged as a crime).

As it has been for centuries, groping continues to be a crime in Oregon and arguably every other state in the nation.[8] It stands to reason, then, that behavior historically seen as criminal, such as “rude touching,” would, as a matter of law, rise to the level of “severe” sexual harassment. Despite criminal prohibitions, though, it is not uncommon for there to continue to be disagreement as to whether free gropes are allowed.

As a more practical matter, because of its lack of clarity, the “severe or pervasive” standard serves neither employers nor employees. This is true because if an employer is notified of an allegation of sexual harassment, they have an obligation to “prevent and correct promptly” (Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998)) or “take immediate and appropriate corrective action” (OAR 839-005-0030(5)) to stop the sexual harassment. The “severe or pervasive” standard, however, encourages employers (and the rest of us) to turn a blind eye to most of the sexually harassing behavior we see despite the known harmful effects on employees and workplaces. On the other hand, the duty to respond to sexual harassment becomes immediate once it is triggered, setting employers up for a surprise if their evaluation of “severe or pervasive” is different than someone else’s.

For attorneys who primarily handle car wreck cases or others with more experience in that area, this is like if the courts created a standard saying “fender benders” are not actionable, “but severe or pervasive” collisions are. Not only does it encourage drivers to be more reckless, it makes it difficult as a lawyer to determine what a community will view as a “real collision.” Many might say we already have this standard because of the challenges in proving soft tissue injuries, but they have to admit that a “severe or pervasive” liability standard is different and additional to a damages hurdle.

The essential trouble with the severe or pervasive standard is that it creates the legal fiction of a safe-zone where someone can engage in offensive, unwanted verbal or physical conduct directed at someone because of their gender, but it is not sexual harassment because it isn’t severe or pervasive enough. This leaves us in the space where people we like are never sexual harassment because they are the ones who get the free grope passes.

Instead, the law should define sexual harassment as any offensive, unwanted, verbal or physical conduct directed at someone because of their gender. Then, there is room to clarify that sexual harassment is only illegal if it rises to a certain level. The likely reason we do not do this is that it would require us to acknowledge that as a society, we are choosing that it is okay for some sexual harassment to go on, especially if we like the sexual harasser.[9] In reality, it is possible to generally like someone, think they’re good at their job, and still acknowledge that they engaged in harassment.

For most people who have experienced unlawful harassment, the first grope was not the first or last incident of harassment, but might be memorable in a way that eclipses the harassment leading up to it. Likewise, most people who are willing to grope someone without permission at work are demonstrating predatory behavior that does not stop at the one grope or one person. This makes the standard not only confusing, but also dangerous in encouraging employers to ignore problems that are likely more insidious than they first appear.

I collected the comments at the beginning of this article from friends, clients, or my own experience. Each of the comments, like the “severe or pervasive standard,” is an expression of rape culture. Rape culture is an environment where violence against women is normalized and excused, leading to increased risk and perpetration of rape. It may be true that not every sexual harassment experience needs to be the purview of the court, but we should at least consider that verbal and physical conduct tending to normalize gender-based violence is in itself dangerous and unacceptable.

As Gloria Steinem argued, sexual harassment law is not meant to prohibit or interfere with consensual sexual conduct or wanted flirtation. But, sexual harassment law, like all discrimination law, is meant to work towards correcting power imbalances. Until the standard is more clear, it will continue to fail at that goal.

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This article was originally published in the Oregon Trial Lawyer Magazine.

[1] https://www.nytimes.com/1998/03/22/opinion/feminists-and-the-clinton-question.html [2] For more about the allegations against Clinton, check out Impeachment: American Crime Story, 2021, FX Networks. [3] It looks like this phrase first appeared in a countering op ed by Debra J. Saunders, Clinton’s Contribution: One Free Grope, in SFGATE, March 24, 1998, https://www.sfgate.com/opinion/saunders/article/Clinton-s-Contribution-One-Free-Grope-3319063.php [4] https://abcnews.go.com/Entertainment/matt-damon-opens-harvey-weinstein-sexual-harassment-confidentiality/story?id=51792548 [5] https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=3961&context=ndlr, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1873&context=flr [6] Cole v. Turner, 90 Eng. Rep. 958 (1704), https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=3961&context=ndlr at 1-2. [7] Bartell v. State, 106 Wis. 342 (1900). See also De May v. Roberts, 46 Mich. 160 (1981) (man who was unqualified to practice medicine convicted of assault for assisting in a birth without permission). [8] But see, https://www.mic.com/articles/162270/48-states-have-clear-laws-against-groping-while-2-states-barely-have-any-at-all and https://revealnews.org/article/in-2-states-sexual-assault-laws-lag-far-behind-the-mainstream/ (arguing that it’s hard to tell whether groping criminal in Idaho and Mississippi). Merriam-Webster’s defines “grope” as “to feel about blindly or uncertainly in search” or “feel up.” ORS 163.415 makes it unlawful to “subject another person to sexual contact” if “the victim does not consent to the sexual contact.” ORS 163.305 defines “sexual contact” as including “touching of the sexual or intimate body parts of a person.” See also State v. Buller, 31 Or. App. 889 (1977) (holding it a question of fact for the jury whether touching a victim’s buttocks over clothing was touching of an intimate body part). [9] Because the sexual harassment standard sets the standard for harassment law as to other protected classes, this also contributes to a misconception that people with marginalized identities are sensitive, rather than effectively discouraging harassing behavior.