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PATRIOTS REPORT

Sexual Harassment

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Just What Does 'Deal With It' Mean? 

We grow up being told that a part of adult life is learning

to "deal" with it. Yet, we have legislative and judicial

systems passing laws that prevent us from having to "deal."

Today, no one has to "deal" with smoke on airplanes. And no

one has to "deal" with workplace, sexual harassment. The

concept of "if you can't stand the heat get out of the

kitchen" does not meet jurispudential preference which is to

remove the heat. Though relatively new, the interpretations

of sexual harassment are already expanding.

Nudity is not a critical success factor in reporting a sport.

It is not even a factor. Therefore, it is alien to the

workplace (or soon will be determined to be if the courts

maintain their current course bearing.) Any league, team, or

media that further tolerates nudity in locker room reporting

is standing in harm's way. Birthday suits will beget

lawsuits, for there are far too many individual sensitivities

involved for the leagues and managements of the teams and

media to sooth or control.

It was not too long ago that the classic test for sexual

harassment between and among adults was the concept of

consent. Basically, one "no," expressed or implied by word

or gesture, established the discontent. However, the

interpretation and extrapolation of laws regarding sexual

harassment are rushing toward further protection. Today,

even in the absence of "no," any provocative or degrading

word, gesture, or action which affronts is considered

harassment under current thinking. The sexual harassment

covers like and opposite genders of employees and visitors

to the company of the employee.

Moreover, sexual harassment need not be reported by the

person who is being victimized. A co-worker upon seeing the

harassment of a peer can report and file the charge. And

management, once aware of a sexual harassment, is immediately

involved and must take action to stop the offending behavior.

Successful sexual harassment suits have led to the punishment

of both the company and the offending people. Examples...

Scenario #1: Employee complains to management of sexual

harassment by visitor. Management is involved and must

investigate immediately. If management determines the

harassment to be real, it must stop the offensive behavior,

or become liable. (This scenario similar to the cocktail

waitress who is harassed by a patron. Management must

protect the waitress from the patron by stopping the patron's

activity or removing the patron.) Scenario #2: Employee

complains to his/her management of sexual harassment while

visiting a client. Management is involved and must inform

the client's management of problem who becomes involved and

must stop the offending behavior of its employee. (Research

has not found a test case, yet).

Harassment on the basis of sex is a violation of Section 703

of Title VII of the 1964 Civil Rights Act VII. It reads...

Unwelcomed sexual advances, requests for sexual favors, and

other verbal or physical conduct of a sexual nature

constitute sexual harassment when:

1. Submission to such conduct is made, explicitly or

implicitly, a condition of an individual's

employment.

2. Submission to or rejection of such conduct by an

individual is used as the basis for employment

decisions affecting such individual.

3. Such conduct has the purpose or effect of

unreasonably interfering with an individual's work

performance or creating intimidating, hostile, or

offensive working environment.

The ramifications of broadening interpretations of the above

clauses, especially No. 3 are great. Today, the problem of

having an unprotected locker room with mixed genders in a

work environment is that the risk is greater than the reward.

One could view that such an environment, per se, creates an

intimidating, or hostile, or offensive work environment.

Considering the public comments of parties to the locker

rooms, one finds it difficult to conclude otherwise.

Again...

Therefore, a few of the questions that need to be answered by

the various managements are...

If some of the female reporters and male athletes must steel

themselves for the locker room interviews, are not both

victims of sexual harassment by the system(s) which

perpetuates the discomfort?

Have the concepts set forth in the Ludtke case been

implemented satisfactorily?

Why must Coach Sam Wyche provide his own privacy curtains for

his team, the Cincinnatti Bengals? And why is so much

attention drawn to his curtains?

Is time a privacy shield?

If time is a privacy shield, is 15 minutes adequate time to

take off tape, shower and minister your wounds?

" O! Ye that love mankind!   Ye that dare
   oppose not only tyranny, but the tyrant,
Stand Forth! "
Thomas Paine, Common Sense 1776