“Do you often conceal things from her?”
“No. But in this instance, you know, involving an old girlfriend, I didn’t think she would be sympathetic. I didn’t want to deal with her about this.”
“Have you had other affairs?”
“This wasn’t an affair.”
“I’m asking a general question. In terms of your relationship to your wife.”
“No. I haven’t had affairs.”
“All right. I advise you to tell your wife at once. Make a full and complete disclosure. Because I promise you that she will find out, if she hasn’t done so already. However difficult it may be to tell her, your best chance to preserve your relationship is to be completely honest with her.”
“Okay.”
“Now, going back to last night. What happened next?”
“Meredith Johnson called the house and spoke to my wife.”
Fernandez’s eyebrows went up. “I see. Did you expect that to happen?”
“God, no. It scared the hell out of me. But apparently she was friendly, and just called to say that the morning meeting was rescheduled for eight-thirty. Today.”
“1 see.”
“But when I got to work today, I found that the meeting had actually been scheduled for eight.”
“So you arrived late, and were embarrassed, and so on.”
“Yes.”
“And you believe that it was a setup.”
“Yes.”
Fernandez glanced at her watch. “I’m afraid I’m running out of time. Bring me up to date about what happened today quickly, if you can.”
Without mentioning Conley-White, he described the morning meeting briefly and his subsequent humiliation. His argument with Meredith. His conversation with Phil Blackburn. The offer of a lateral transfer. The fact that the transfer would deny him the benefits of a possible spin-off. His decision to seek advice.
Fernandez asked few questions and wrote steadily. Finally, she pushed the yellow pad aside.
“All right. I think I have enough to get the picture. You’re feeling slighted and ignored. And your question is, do you have a harassment case?”
“Yes,” he said, nodding.
“Well. Arguably you do. It’s a jury case, and we don’t know what would happen if we went to trial. But based on what you have told me here, I have to advise you that your case is not strong.”
Sanders felt stunned. `Jesus.”
“I don’t make the law. I’m just telling you frankly, so you can arrive at an informed decision. Your situation is not good, Mr. Sanders.”
Fernandez pushed back from her desk and began to stuff papers into her briefcase. “I have five minutes, but let me review for you what sexual harassment actually is, under the law, because many clients aren’t clear about it. Title VII of the Civil Rights Act of 1964 made sex discrimination in the workplace illegal, but as a practical matter what we call sexual harassment was not defined for many years. Since the middle nineteen-eighties, the Equal Employment Opportunities Commission has, under Title VII, produced guidelines to define sexual harassment. In the last few years, these EEOC guidelines have been further clarified by case law. So the definitions are quite explicit. According to the law, for a complaint to qualify as sexual harassment, the behavior must contain three elements. First, it must be sexual. That means, for example, that making a profane or scatological joke is not sexual harassment, even though a listener may find it offensive. The conduct must be sexual in nature. In your case, there’s no doubt about the explicitly sexual element, from what you have told me.”
“Okay.”
“Second, the behavior must be unwelcome. The courts distinguish between behavior that is voluntary and behavior that is welcome. For example, a person may be having a sexual relationship with a superior and it’s obviously voluntary-no one’s holding a gun to the person’s head. But the courts understand that the employee may feel that they have no choice but to comply, and therefore the sexual relationship was not freely entered into-it’s not welcome.
“To determine if behavior is really unwelcome, the courts look at the surrounding behavior in broad terms. Did the employee make sexual jokes in the workplace, and thus indicate that such jokes from others were welcome? Did the employee routinely engage in sexual banter, or sexual teasing with other employees? If the employee engaged in an actual affair, did they allow the supervisor into their apartment, did they visit the supervisor in the hospital, or see them at times when they didn’t strictly have to, or engage in other actions that would suggest that they were actively and willingly participating in the relationship. In addition, the courts look to see if the employee ever told the supervisor the behavior was unwelcome, if the employee complained to anyone else about the relationship or tried to take any action to evade the unwelcome situation. That consideration becomes more significant when the employee is highly placed, and presumably more free to act.”
“But I didn’t tell anybody.”
“No. And you didn’t tell her, either. At least, not explicitly, so far as I can determine.”
“I didn’t feel I could.”
“I understand you didn’t. But it’s a problem for your case. Now, the third element in sexual harassment is discrimination on the basis of gender. The most common is quid pro quo-the exchange of sexual favors in return for keeping your job or getting a promotion. The threat of that may be explicit or implied. I believe you said it was your understanding that Ms. Johnson had the ability to fire you?”
Yes. “How did you gain that understanding?” “Phil Blackburn told me.” “Explicitly?” “Yes.”
“And what about Ms. Johnson? Did she make any offer contingent on sex? Did she make any reference to her ability to fire you, in the course of the evening?”
“Not exactly, but it was there. It was always in the air.”
“How did you know?”
“She said things like `As long as we’re working together, we might as well have a little fun.’ And she talked about wanting to have an affair during company trips we would make together to Malaysia, and so on.”
“You interpreted this as an implied threat to your job?”
“I interpreted it to mean that if I wanted to get along with her, I had better go along with her.”
“And you didn’t want to do that?”
“No.”
“Did you say so?”
“I said I was married, and that things had changed between us.”
“Well, under most circumstances, that exchange alone would probably serve to establish your case. If there were witnesses.”
“But there weren’t.”
“No. Now, there is a final consideration, which we call hostile working environment. This is ordinarily invoked in situations where an individual is harassed in a pattern of incidents that may not in themselves be sexual but that cumulatively amount to harassment based on gender. I don’t believe you can claim hostile work environment on this single incident.”
“I see.”
“Unfortunately, the incident you describe is simply not as clear-cut as it might be. We would then turn to ancillary evidence of harassment. For example, if you were fired.”
“I think in effect I have been fired,” Sanders said. “Because I’m being pulled out of the division, and I won’t get to participate in the spin-off”
“I understand. But the company’s offer to transfer you laterally makes things complicated. Because the company can argue-very successfullv, I thinkthat it does not owe you anything more than a lateral transfer. That it has never promised you the golden egg of a spin-off. That such a spin-off is in any case speculative, intended to occur at some future time, and it might never happen. That the company is not required to compensate you for your hopesfor some vague expectation of a future that might never occur. And therefore the company will claim that a lateral transfer is fully acceptable, and that you are being unreasonable if you turn it down. That you are in effect quitting, not being fired. It will place the burden back on you.”
“That’s ridiculous.”
“Actually, it’s not. Suppose, for example, you found out that you had terminal cancer and were going to die in six months. Would the company be required to pay the proceeds of the spin-off to your survivors? Clearly, no. If you’re working in the company when it spins off, you participate. If you’re not, you don’t. The company has no broader obligation.”
“You’re saying I might as well have cancer.”
“No, I’m saying that you’re angry and you feel the company owes you something that the court will not agree it does. In my experience, sexual harassment claims often have this quality. People come in feeling angry and wronged, and they think they have rights that they simply don’t have.”
He sighed. “Would it be different if I were a woman?”
“Basically, no. Even in the most clear-cut situations-the most extreme and outrageous situations-sexual harassment is notoriously difficult to prove. Most cases occur as yours has: behind closed doors, with no witnesses. It’s one person’s word against another’s. In that circumstance, where there is no clear-cut corroborating evidence, there is often a prejudice against the man.”
“Uh-huh.”
“Even so, one-fourth of all sexual harassment cases are brought by men. Most of those are brought against male bosses, but one-fifth are brought against women. And the number is increasing all the time, as we have more women bosses in the workplace.”
“I didn’t know that.”
“It isn’t much discussed,” she said, peering over her glasses. “But it’s happening. And from my point of view, it’s to be expected.”
“Why do you say that?”
“Harassment is about power-the undue exercise of power by a superior over a subordinate. I know there’s a fashionable point of view that says women are fundamentally different from men, and that women would never harass an employee. But from where I sit, I’ve seen it all. I’ve seen and heard everything that you can imagine and a lot that you wouldn’t believe if I told you. That gives me another perspective.
Personally, I don’t deal much in theory. I have to deal with the facts. And on the basis of facts, I don’t see much difference in the behavior of men and women. At least, nothing that you can rely on.”
“Then you believe my story?”
“Whether I believe you is not at issue. What’s at issue is whether you realistically have a case, and therefore what you should do in your circumstances. I can tell you that I’ve heard it all before. You’re not the first man I’ve been asked to represent, you know.”
“What do you advise me to do?”
“I can’t advise you,” Fernandez said briskly. “The decision you face is much too difficult. I can only lay out the situation.” She pushed her intercom button. “Bob, tell Richard and Eileen to bring the car around. I’ll meet them in front of the building.” She turned back to Sanders.
“Let me review your problems,” she said. She ticked them off on her fingers. “One: you claim that you got into an intimate situation with a younger, very attractive woman but you turned her down. In the absence of witnesses or corroborating evidence, that isn’t going to be an easy story to sell to a jury.
“Two: if you bring a lawsuit, the company will fire you. You’re looking at three years before you come to trial. You have to think about how you’ll support yourself during that time, about how you’ll make your house payments, and your other expenses. I might take you on a contingency basis, but you’ll still have to pay all direct costs throughout the trial. That will be a minimum of one hundred thousand dollars. I don’t know whether you’ll want to mortgage your house to pay for it. But it has to be dealt with.
“Three: a lawsuit will bring all this out into the open. It’ll be in the papers and on the evening news for years before the trial begins. I can’t adequately describe how destructive an experience that is-for you, and for your wife and family. Many families don’t survive the pre-trial period intact. There are divorces, suicides, illnesses. It’s very difficult.
“Four: because of the offer of lateral transfer, it’s not clear what we can claim as damages. The company will claim that you have no case, and we’ll have to fight it. But even with a stunning victory, you may end up with only a couple of hundred thousand dollars after expenses and fees and three years of your life. And of course the company can appeal, delaying payment further.
“Five: if you bring a lawsuit, you’ll never work in this industry again.
I know it’s not supposed to work that way, but as a practical matter,
“I’11 never be hired for another That’s how it goes. It would you be one thing if you were fifty-five. But you’re only forty-one. I don’t know if you want to make that choice, at this point in your life.”
“Jesus.” He slumped back in the chair.
“I’m sorry, but these are the facts of litigation.”
“But it’s so unjust.”
She put on her raincoat. “Unfortunately, the law has nothing to do with justice, Mr. Sanders,” she said. “It’s merely a method for dispute resolution.” She snapped her briefcase shut and extended her hand. “I’m sorry, Mr. Sanders. I wish it were different. Please feel free to call me again if you have any further questions.”
She hurried out of the office, leaving him sitting there. After a moment the assistant came in. “Can I do anything for you?”
“No,” Sanders said, shaking his head slowly. “No, I was just leaving.”
In the car, driving to the courthouse, Louise Fernandez recounted Sanders’s story to the two junior lawyers traveling with her. One lawyer, a woman, said, “You don’t really believe him?”
“Who knows?” Fernandez said. “It was behind closed doors. There’s never a way to know.”
The young woman shook her head. “I just can’t believe a woman would act that way. So aggressively.”
“Why not?” Fernandez said. “Suppose this wasn’t a case of harassment. Suppose this was a question of implied promise between a man and a woman. The man claims that behind closed doors he was promised a big bonus, but the woman denies it. Would you assume that the man was lying because a woman wouldn’t act that way?”
“Not about that, no.”
“In that situation, you’d think that anything was possible.”
“But this isn’t a contract,” the woman said. “This is sexual behavior.”
“So you think women are unpredictable in their contractual arrangements, but stereotypical in their sexual arrangements?”
The woman said, “I don’t know if stereotypical is the word I’d use.”
“You just said that you can’t believe a woman would act aggressively in sex. Isn’t that a stereotype?”
“Well, no,” the woman said. “It’s not a stereotype, because it’s true. Women are different from men when it comes to sex.”
“And black people have rhythm,” Fernandez said. “Asians are workaholics. And Hispanics don’t confront . . .”
“But this is different. I mean, there are studies about this. Men and women don’t even talk to each other the same way.”
“Oh, you mean like the studies that show that women are less good at business and strategic thinking?”
“No. Those studies are wrong.”
“I see. Those studies are wrong. But the studies about sexual differences are right?”
“Well, sure. Because sex is fundamental. It’s a primal drive.”
“I don’t see why. It’s used for all sorts of purposes. As a way of relating, a way of placating, a way of provoking, as an offer, as a weapon, as a threat. It can be quite complicated, the ways sex is used. Haven’t you found that to be true?”
The woman crossed her arms. “I don’t think so.”
Speaking for the first time, the young man said, “So what’d you tell this guy? Not to litigate?”
“No. But I told him his problems.”
“What do you think he should do?”
“I don’t know,” Fernandez said. “But I know what he should have done.”
“What?”
“It’s terrible to say it,” she said. “But in the real world? With no witnesses? Alone in the office with his boss? He probably should have shut up and fucked her. Because right now, that poor bastard has no options at all. If he’s not careful, his life is over.”
Sanders walked slowly back down the hill toward Pioneer Square. The rain had stopped, but the afternoon was still damp and gray. The wet pavement beneath his feet sloped steeply downward. Around him the tops of the skyscrapers disappeared into the low-hanging, chilly mist.