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Joan Would Have Lost Her Sexual Harassment Suit Against McCann Erickson

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millhiser_ian_bioThe following contains spoilers from Sunday night’s episode of Mad Men. The big reveal in Sunday night’s episode of Mad Men was that Sterling Cooper, a company where racist jokes are frequently thrown about and where the company’s only female partner literally earned that partnership because she was prostituted out to a client, is actually a progressive employer by the standards of its era. The episode is the first after Sterling Cooper is absorbed into the advertising behemoth McCann Erickson, and it begins with an African American secretary telling her casually racist boss that she won’t be going over to McCann with him because “advertising is not a very comfortable place for everyone.” Yet the highlight of the episode is Joan’s sexual harassment at the hands of a senior member of her new firm, and her eventual decision to take a buyout worth only half of her partnership stake in the now defunct Sterling Cooper rather than take McCann to court. (Joan, of course, is the partner who agreed to an indecent proposal from a client). In response to Joan’s fictional experience with sex discrimination, the real-life American Civil Liberties Union (ACLU) urged Joan to contact them in a tweet announcing that “sexual harassment has no place at work!” Yet the sad truth is that, had Joan actually pursued a lawsuit against McCann in 1970, the year when the final half-season of Mad Men takes place, she would have almost certainly lost.

Sunday’s episode focuses on Joan’s increasingly terrible interactions with three male colleagues. Early in the episode, Joan is matched with Dennis, an account executive who botches a call with a client and then dismisses Joan’s feedback (“Who told you you got to get pissed off!”) when she calls him out on his incompetence. Fearful that Dennis will destroy the client relationships that are her only capital within the firm, she approaches Ferg, a more senior colleague, seeking help.

Though Ferg initially presents himself as a lifesaver — he takes Dennis off Joan’s business and promises that she will report directly to him – he soon makes it clear that his real interest in Joan is sexual. Ferg suggests that the two of them travel together to Atlanta to meet the client Dennis upset and tell her that he’s “not expecting anything more than a good time.” Once Joan goes over Ferg’s head, she’s informed that Ferg is a high-status player at McCann and that she needs to fall in line. At first, Joan threatens to bring in the Equal Employment Opportunity Commission (EEOC), Betty Friedan and the ACLU to press her sexual harassment claim, but she ultimately takes what amounts to a settlement offer consisting of only half of what McCann owes her for her stake in Sterling Cooper.

Had Joan sued McCann, she would have relied on a legal theory that wasn’t even in its infancy in 1970. The ban on sexual harassment in the workplace flows from Title VII of the Civil Rights Act of 1964, which forbids employment discrimination because of “race, color, religion, sex, or national origin.” Six years after the law’s passage, however, the courts had only barely begun to grapple with how sex discrimination actually manifests in the workplace, and the term “sexual harassment” didn’t even exist yet.

According to the National Organization for Women, “Cornell University activists coined the term sexual harassment in 1975,” five years after Joan’s fictional harassment took place. The first successful sexual harassment suit was decided in 1976, and that was only the decision of a single federal district judge. The EEOC did not issue guidelines targeting sexual harassment as a kind of sex discrimination until 1980. And the Supreme Court did not recognize Title VII’s prohibition on sexual harassment until its 1986 decision in Meritor Savings Bank v. Vinson.

Had Joan filed suit against McCann, her lawsuit would have preceded all of these legal developments. For that reason, despite her threat to get the ACLU involved, it is unlikely that top-notch civil rights lawyers would have wanted to use her case as the vehicle to try to blaze a new legal trail. When lawyers bring a “test case” seeking to create new law, they typically choose their plaintiff or plaintiffs very carefully, selecting someone with an especially compelling case who is likely to win the sympathy of judges or justices. Bad facts make bad law, and a lawyer who offers a novel legal theory on behalf of a client who experienced subtle or uncertain harassment is likely to not only lose their case, they are likely to create a bad precedent that will harm future plaintiffs.

Here, for example, are the allegations in Vinson, the first Supreme Court case to recognize that sexual harassment suits are viable:

Respondent testified that during her probationary period as a teller-trainee, Taylor treated her in a fatherly way and made no sexual advances. Shortly thereafter, however, he invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but out of what she described as fear of losing her job she eventually agreed. According to respondent, Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.

Though Vinson recognized that this egregious level of harassment-becoming-assault violates the law, it set a very high bar for future sexual harassment plaintiffs. “For sexual harassment to be actionable,” Justice William Rehnquist wrote for the Court, “it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” The Court also cited favorably to a racial harassment case establishing that the “‘mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee’ would not affect the conditions of employment to sufficiently significant degree to violate Title VII.”

Ferg’s advances, though clearly inappropriate, did not even approach the egregious level of discrimination that allegedly occurred in Vinson. He began his conversation with Joan by excusing Dennis’s sexism, but ultimately promised to give Joan the professional “respect you desire.” And he propositioned Joan more through innuendo than through the direct demands that allegedly occurred in Vinson. There’s little doubt what kind of “good time” Ferg was looking for, but it would be difficult for Joan to prove that this one incident constituted the kind of “severe or pervasive” harassment Vinson demands.

That’s not to dismiss the reality of Ferg’s harassment of Joan, or to suggest that the working conditions that she faced were anything less than disgusting. But sexual harassment claims are notoriously difficult to win, and even our modern, more developed sexual harassment law is inadequate to combat the kind of harassment women like Joan continue to face in the workplace.

Had Joan filed suit against McCann, she would have been a true pioneer, bringing a novel legal case years before the term “sexual harassment” even existed. She also would have almost certainly lost her case in a legal system that was not the least bit prepared to hear it.

This blog was originally posted on Thinkprogress.org on May 4, 2015. Reprinted with permission.

About the Author. The author’s name is Ian Millhiser. Ian Millhiser is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal. Ian’s first book is Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

 


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Intellectual Imperialism

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In order to think about ways to align labor rights and human rights and create the changes needed to eliminate the poverty and oppression caused by those ignoring the basic rights that all people should reasonably expect to enjoy; we must address the concept of Intellectual Imperialism.

Intellectual Imperialism is the exploitation of intellectual capital by focusing our best and brightest scientific and engineering minds on developing innovations in labor saving, rather than life saving, technology. The mindset that only by reducing the number, and cost, of workers can a mature industry remain profitable, is a perception in dire need of change if international labor and human rights standards are to be effectively implemented and enforced.

We invest our government and corporate research funding capital, and the efforts of our best people, creating new and improved ways to have fewer and fewer people able to run our industrial plants, rather than focusing that same set of limited resources on discovering innovative ways of employing the same number of people to create more, better quality, more useful products, whose production would create even higher levels of employment.

Better products increase demand, greater demand increases industrial employment to meet that demand, higher employment increases disposable income, more disposable income creates more consumer spending, and all contribute to higher profits, and therefore a stronger economy.

This is not to say that progress and innovation, geared towards increasing profit, is any way a bad thing. The profit motive has served to create the funding for all manner of innovations.

From early civilizations prior to the first time an ancient Greek, Phoenician, or Norse sea captain asked their kings and queens to sponsor exploration to find new trade routes, products, and treasure, profit has driven innovation.

Scientific and engineering advances have improved the quality of life worldwide, at all economic levels. We must continue to innovate, but we must also change the focus of our innovative efforts such that innovation creates, rather than eliminates, employment, increasing, rather than reducing, industry’s ability to generate profits for the benefit of their stakeholders.

The reallocation of capital and human resources to maximize education and employment opportunities is vital to the health and prosperity of our nation and the international community.

A greater percentage of corporate and public research and development funds must be used to improve training and education. This is essential to properly prepare our young people for their place in the future work force.  Keeping the skills of today’s work force vital and current, so their skill set can continue to evolve, is key to keeping them prepared for the constant work place change that is the hallmark of the 21st century global economy.

Corporate funding to permanently endow innovative elementary and secondary school programs; corporate and union funded endowment of professorships, teaching assistant-ships, and research staffs at universities; government, corporate, and labor partnerships in the endowment of international educational exchange programs will create a permanent environment for ongoing educational innovation.

In order to foster the cultural and core value changes required, it is imperative that governments, multinational corporations, organized labor, human rights organizations, academia, and community activists begin the dialogue necessary to form the consensus needed to implement meaningful, lasting, change.

A key element is the agreement and commitment by all International Labor Organization (ILO) member nations to implement changes in their domestic labor laws and trade policies to create the ability for workers everywhere to have the protection of, and means to enforce, the four conventions comprising the ILO’s Fundamental Principles and Rights at Work.[1]

The commitment to enforce the right to freedom of association and the right to engage in collective bargaining; elimination of all forms of compulsory or forced labor; abolition of child labor; and finally, elimination of discrimination in employment and occupation with serious penalties universally imposed on violators is essential.[2]

Further, enforceable legislation needs to be passed guaranteeing that workers employed by international corporations anywhere in the world should be paid a wage that creates a standard of living equivalent to that enjoyed by that company’s workers with the best pay, benefits, and conditions employed in similar jobs. This is the only way to bring the race to the bottom to a halt and put an end to social dumping.

An international coalition of government, industry, and labor must come together to create a plan to design and implement a worldwide program of green infrastructure construction projects to replace outdated, crumbling, bridges, roads, railroads, water treatment, and power delivery systems in developed countries, and bring renewable, green, transportation, water and power delivery systems to developing nations.

This will create new business opportunities for capital investment as well as millions of management, administrative, technical, skilled, and unskilled jobs around the world. The investment in education will create the innovations needed to create this green transportation and utility infrastructure, which will create opportunities for capital investment in green mining, agricultural, industrial, and service industries, resulting in more employment, more corporate profits, and a higher standard of living for people everywhere.

If we do not, if we continue to ignore the ever-increasing hunger, squalor, sickness, ignorance, and worldwide economic and ecological damage, caused by the unregulated greed and shortsightedness of so many in political, industrial, labor, and social leadership, if we continue to march, with flags waving and bands playing, obliviously backward into the dark ages, the legacy we leave our children and grandchildren will be a millennium of darkness and despair.

YOU must choose, WE must choose, choose  between sitting by while our civilization spins into chaos, or standing up, helping our family, friends, and neighbors to stand up, then standing together, work in solidarity to make this world a cleaner, greener, healthier, more innovative and profitable place. A place where there is opportunity for all. 

About the Author: Robert Daraio is a Local Representative of The Newspaper Guild of New York, CWA Local 31003; the Recording Secretary of the New York Broadcast Trades Council; moderator of theBroadcast Union News website; and a 2011 graduate of the MALS program at the CUNY Murphy Institute for Worker Education and Labor Studies.

[1] The ILO is the international organization responsible for drawing up and overseeing international labor standards. It is the only ‘tripartite’ United Nations agency that brings together representatives of governments, employers and workers to jointly shape policies and programs promoting Decent Work for all. This unique arrangement gives the ILO an edge in incorporating ‘real world’ knowledge about employment and work. http://www.ilo.org/global/about-the-ilo/lang–en/index.htm
 
[2] Adopted in 1998, the Declaration commits Member States to respect and promote principles and rights in four categories, whether or not they have ratified the relevant Conventions. These categories are: freedom of association and the effective recognition of the right to collective bargaining, the elimination of forced or compulsory labor, the abolition of child labor and the elimination of discrimination in respect of employment and occupation.http://www.ilo.org/declaration/thedeclaration/lang–en/index.htm 
 
This post was originally published by Broadcast Union News on November 9, 2012. Reprinted with permission.
 

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