In the #metoo era, one could be forgiven if they thought that victim blaming had been eliminated from sexual harassment lawsuits. Indeed, with the amount of progress that we have made in the U.S. in sexual assault and rape laws, most of us likely assume there is parity with sexual harassment litigation. Unfortunately, at least here in the U.S., victim blaming has become a part of how we litigate sexual harassment in the U.S.
The “unwelcomed” ruling background
The U.S. Supreme Court heard a case wherein a bank teller endured nearly three years of sexual torture from her boss. This included flashings, accosting in the bathroom, verbal abuse and even 50 times of forced or coerced intersection. He threatened to fire her, beat her and kill her. There was a plethora of witnesses, and even co-workers that had similar treatment. Nonetheless, the trial court allowed evidence of the woman’s dress and co-worker testimony about what she talked about, as it related to sex and sexual fantasies. Then, he found that atrocious behavior was not illegal sexual harassment.
The U.S. Supreme Court holding
The U.S. Supreme Court disagreed with the trial court and found the manager’s behavior was unlawful discrimination because it created a hostile work environment. The problem is that they found this because the sexual advances were “unwelcomed.” This unwelcomed standard puts the burden of proof expressly on the victim to prove they did not want to happen what happened, i.e., victim blaming. This is the law of the land, even today.
Reflected in state law as well
Even state law reflects this victim blaming culture. Take, for example, a court case from Iowa. In that case, from 2013, a dental assistant was fired for “tempting” the dentist into cheating on his wife with her. Now, one could also be forgiven if they assumed that this meant the two had a relationship, sexual text messages or talking or, at least, some kind of sexual interactions. Though, those who assumed this would be incorrect. Indeed, from all accounts, the entirety of this tempting existed solely in the dentist’s own head. There was never any touching, no flirting and she saw him as a father figure. Nonetheless, he fired her, and it was upheld by the Iowa Supreme Court, who essentially, blamed the firing on her, not the dentist. Unfortunately, since this is baked into federal law, this type of victim blaming culture will also affect Staten Island, New York, residents.