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Victim blaming in sexual harassment lawsuits

On Behalf of | Oct 13, 2021 | Employment Litigation

Most of our readers would likely be surprised by the idea that U.S. sexual harassment lawsuits often have a significant amount of victim blaming. Indeed, this is true across the entire U.S.

Fired for being too tempting?

In a lawsuit that lasted from 2010 to 2013 in Iowa, a dental hygienist was fired for “tempting” her boss. Prior to her firing in 2010, the woman had considered the dentist a father figure. The two never had any inappropriate touching or talking and nothing even remotely sexual happened between the two. Of course, the woman sued because she was fired based on her sex, but the Iowa Supreme Court disagreed. They said that, even though she was fired because he was sexually attracted to her, there was no sexual harassment or hostile work environment, so the firing was legal. In essence, it was her fault.

Pervasive sexual harassment

In another case, Meritor Savings Bank v. Vinson, a bank teller was subjected to repeated and unwanted sexual behavior, including sexual contact with the threat of being fired if she did not comply, for over two years. In that 1986 U.S. Supreme Court case, the district judge allowed evidence of the woman’s clothing, like tight pants, low-cut blouses, etc., including testimony about sexual fantasies. And, even though, there were witnesses to the abuse that testified, he found the sexual harassment was voluntary.

The unwelcomeness test

Though, even though she was victim blamed at the lower level, the Supreme Court did find this abhorrent behavior unlawful discrimination, but it still found that evidence of “sexually provocative speech or dress” was still relevant and allowable, thereby, still allowing victim blaming to continue. This is still the law of the land under the so-called, unwelcomeness test that seeks to weight whether the sexual harassment was welcome or not, which puts the onus on the victim.

The takeaway

Our current blame-shifting model is now entrenched victim blaming for all those throughout the country, including Chicago, Illinois. Though, with the advancement of the #metoo movement, hopefully, these precedents will begin to change.

 

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