Workplace Fairness

Menu

Skip to main content

  • print
  • decrease text sizeincrease text size
    text

Joan Would Have Lost Her Sexual Harassment Suit Against McCann Erickson

Share this post

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.

 


Share this post

Mad Men, Madder Women: Have Roles Really Changed in the Workplace?

Share this post

Vivian DillerLike many baby boomers who regularly watch AMC’s “Mad Men,” I marvel at how accurately they get it: the smoky ambiance, the retro style and the subtleties of how people lived, worked and played in those good/bad ole days. Each Sunday we watch history unfold through the characters who work at the Sterling, Draper, Cooper and Pryce Ad Agency. A recent episode (aired on 9/12/10) particularly intrigued me, as a psychologist and author who writes about women’s issues in contemporary society. The episode brilliantly illustrated a cultural phenomenon that I have called “the beauty paradox.” (see my recent Huffington Post piece by that name), highlighting its origins and continued influence in today’s world.

The beauty paradox is the ambivalence women feel about the role beauty plays in their personal and professional lives. Should or shouldn’t looks matter? Are smart women taken less seriously if they place importance on their appearance? Are sensuality and femininity at odds with ambition and success at work? In “Mad Men” — where women are growing increasingly madder about this burgeoning issue — we get to watch a dramatization of this cultural phenomenon.

This particular episode revolved largely around the two females leads: Joan, the voluptuous secretary and Peggy, the brainy creative director. They engage in a series of interchanges with their male office mates, who range from the crude and chauvinistic to the slowly emotionally evolving partner in charge, Don Draper. The boys view Joan both as an object of desire and derision, openly poking fun at the role she plays in the office. “Joan’s on the desk with boobs on the blotter,” they laugh, underestimating her innate, instinctive intelligence, even if we viewers know better. Peggy is portrayed as smarter and more ambitious, the worker-bee who can hardly relate to Joan. The men devalue her too, as the gal trying to be one of the boys, although they hardly view her, or any woman, as a serious professional threat. When Peggy asks advice of Draper — the only male who seems unfazed by either of these women — he encourages her to take the matter into her own hands. A cultural revolution is beginning.

Here is where it gets complicated. As we see roles start to change and power begin to shift, we also witness an internal battle growing within women themselves. And it is there that “Mad Men” gets it right again. Peggy is shown trying to deal with these bad boys in the professional manner suggested by her boss. Being new to this role, she tries first to give them fair warning about Joan’s true influence in the office, but she gets nowhere. They continue the banter, mocking Joan, “What do you do around here besides walking around like you’re trying to get raped?” Peggy is then faced with an internal debate, one that I believe continues in the minds of many women today: does she side with her own sex against the men’s demeaning attitude toward a fellow female worker? Or does she look the other way in order to side with the men, who clearly dominate the coveted roles at the agency? Mustering up courage, she decides to fire Joey, Joan’s most flagrant abuser and as he leaves, he tells Peggy, “Well, I was wrong about you.” To his fellow ad men, Joey warns “Watch out fellas, the fun is over.” These may be the episode’s most revealing and interesting moments. Clearly, Peggy is hurt by the men’s disappointment in her, but she also feels triumphant as she exercises, for the first time, the authority granted by her boss. She feels, in fact, more like one of the boys than she ever has, excited by the power she senses will grow.

That is, until she shares her courageous act with Joan, who is not at all pleased by Peggy’s defense of her womanhood. From Joan’s perspective, she has only been further devalued, this time by her female cohort whose actions have painfully highlighted Joan’s position — the beautiful secretary who needs to be saved by someone with more male-like power. We, as viewers, also shift from applauding Peggy’s new found consciousness to lamenting any diminution of Joan, a woman we know is capable of defending herself. The beauty paradox is played out between these two women for us all to see. It is a drama surprisingly similar to the one played all too often (albeit, behind closed doors) in women’s lives today.

While the reality of sexual harassment has changed somewhat since the “Mad Men” days, women continue to struggle with how to mesh beauty and sensuality with their professional lives. They struggle with one another — like Joan and Peggy did — and within themselves. They worry if their looks will interfere with their climb up the ladder. They are not sure if overt femininity displays power or weakness. The dilemma still remains; which side to take? Should the Joans of today minimize their beauty in the service of establishing themselves as smart, clever women? Should today’s Peggys let themselves enjoy being a girl and embellish their femininity or will that put them at risk of losing out in their race to the top?

Joan was on to something in that elevator when she told Peggy she would not be seen as a heroine so much as just “another humorless bitch.” The Women’s Movement was supposed to resolve this dilemma as the glass ceilings were being broken at Sterling, Draper, Cooper, Pryce and elsewhere. But the truth is, women continue to struggle with this issue in spite of all the crashing and breaking they’ve done over the past 50 years. We may have a female Secretary of State. Women sit as judges on the Supreme Court. There are Peggy Olsens all over the media world. Yet still, being female, attractive and powerful at the same time remains a complicated equation. The title of AMC’s hit series may be “Mad Men,” but in many ways the show is about its women and the evolution of their revolution.

Oh, and let’s not forget Betty Draper, suffering out there in stagnant suburbia. Her unhappy, stay-at-home mother role is about to undergo its own revolution. Fast forward (which means an episode sure to be coming soon) to another Betty, with the last name Friedan. She will give an identity to the “no name illness,” being increasingly experienced by the women of “Mad Men’s” era. And from what women tell me today, I’m not sure we have yet found a full cure for this cultural malady. Your thoughts?

This article was originally posted on The Huffington Post

About The Author: Vivian Diller, Ph.D., is a psychologist in private practice in New York City. After completing her Ph.D. in clinical psychology, she went on to do postdoctoral training in psychoanalysis at NYU. She has written articles on beauty, aging, eating disorders, models, and dancers, and served as a consultant to a major cosmetic company interested in promoting age-related beauty products. Her book, “FACE IT: What Women Really Feel As Their Looks Change” (2010), written with Jill Muir-Sukenick, Ph.D. and edited by Michele Willens, is a psychological guide to help women deal with the emotions brought on by their changing appearances. “Today” co-host Hoda Kotb called it “a smart book for smart women.” For more information, please visit www.VivianDiller.com.


Share this post

Follow this Blog

Subscribe via RSS Subscribe via RSS

Or, enter your address to follow via email:

Recent Posts

Forbes Best of the Web, Summer 2004
A Forbes "Best of the Web" Blog

Archives

  • Tracking image for JustAnswer widget
  • Find an Employment Lawyer

  • Support Workplace Fairness

 
 

Find an Employment Attorney

The Workplace Fairness Attorney Directory features lawyers from across the United States who primarily represent workers in employment cases. Please note that Workplace Fairness does not operate a lawyer referral service and does not provide legal advice, and that Workplace Fairness is not responsible for any advice that you receive from anyone, attorney or non-attorney, you may contact from this site.