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The heartbreaking sadness of sexual harassment

October 18th, 2017  |  Joy Waltemath

By Joy P. Waltemath, J.D.

Amazon Studios executive Roy Price. Harvey Weinstein. Before that Bill O’Reilly. Roger Ailes. The news is all about sexual harassment allegations in tech, in Hollywood, among the movers and shakers in this world. #MeToo (a hashtag for women who have been sexually harassed or assaulted) currently is trending on Twitter (although I’ve read that as a movement, it’s been around for about a decade). Sexual harassment is again getting its 15 minutes of fame; it’s not the first time.

I last blogged about sexual harassment in April, back when the Bill O’Reilly allegations were receiving significant media attention. But what I’ve been thinking about lately is not the viral outrage, nor the media attention, that is currently on display, but instead a small, sad case that involved two women working at a hotel in a central Florida city not known for tourism.

One woman was Filipino; she worked in housekeeping. The other was white; she worked the hotel’s breakfast bar. Both were hired and ultimately fired by the hotel’s general manager, who also held an ownership interest in the business. The reason I mention the race/national origin of these women is that the general manager, an Indian male, apparently believed it was important.

The housekeeper. The women’s sexual harassment allegations withstood a motion for summary judgment filed by the company that owned and ran the hotel. According to her testimony, throughout the Filipino worker’s three years of employment, the general manager allegedly threatened her with the loss of her job, her family, and her husband—and with being sent back to the Philippines—if she did not give him oral sex and have sexual intercourse with him. Since she was Filipino, the general manager allegedly said she should be forced to have sex with Indian men, whom he claimed were “superior.” She said she was afraid of him physically and because of his position; he said if she reported him, she would be in “big trouble” because he was the “big boss,” powerful, and he could do anything he wanted, including preventing her from finding another job. She gave in to his increasing demands, including forced sex with the general manager and another man, because she said she could not risk losing her job.

The breakfast bar worker. After the breakfast bar worker was hired (two years after the housekeeper was hired), the general manager allegedly forced the two women to engage in group sex with him. He repeatedly told the breakfast bar worker that because she was local “white trash,” she should give him oral sex or have intercourse with him, she testified. If she did not, he threatened her with termination, but if she gave in, he rewarded her with extra hours. He allegedly told her that white women were lazy, stupid, and garbage, that his Indian investors would dominate the “white trash” who lived in their town, that she was white trash and only good for providing sex to powerful men like him, and that he could do what he wanted because he had power and money. She was afraid to tell anyone about the general manager’s behavior because she said she needed to keep her job, and he told her she would never work again if she complained.

But once there were two of them … The housekeeper testified that once she knew that the breakfast bar worker, who was also being sexually abused, was a witness to the general manager’s behavior, she felt more powerful. As a result, she then refused his demand for sex; he yelled at her and she slapped his face; he fired her. And as the general manager’s alleged demands for sex with the breakfast bar worker increased (he demanded that she have sex with “him and his friends” and also demanded anal sex), she too refused, telling him that what he was doing was illegal. He fired her too. Both women, in fact, alleged that they were fired after refusing oral sex.

They lost their jobs anyway. Notably, by the time the hotel’s summary judgment motion was heard, the general manager had settled with the women and was no longer part of the litigation. The hotel’s defense was to claim that Faragher/Ellerth affirmative defense applied, but the court said no. There were obviously tangible employment actions here—both women were fired—which meant the defense didn’t apply. Plus, it looked to the court like there was substantial record evidence that the general manager acted as an “alter ego” of the hotel, holding a high-level position as an owner and general manager, to render the hotel strictly liable for his behavior.

Were their objections enough? The women’s retaliation claims were straightforward; they said once they refused oral sex, they each got fired—as the general manager had threatened. The hotel argued that it was entitled to summary judgment anyway because their rejection of the general manager’s sexual advances was not “protected activity” under Title VII. And, while there is a circuit split as to whether someone who rejects a supervisor’s sexual advances actually has engaged in protected activity (the Eleventh Circuit has yet to weigh in), the court here agreed with the Sixth Circuit’s reasoning in EEOC v. New Breed Logistics that if an employee demands that her supervisor stop engaging in unlawful harassment by resisting or confronting the supervisor’s unlawful harassment, “the opposition clause’s broad language confers protection to this conduct.”

Think about this. This case is a reminder that sexual harassment is about power. These women believed that they had so few options, so little relative power, that they needed to submit to sex with their boss to keep their jobs as a housekeeper and a breakfast bar worker. Not their jobs at a television network. Not to get good work in Hollywood. Not to have a career in Silicon Valley. Not to work in BigLaw.

Have you ever been that powerless? Can you even imagine what your world would be like if this were your best option?

I worry sometimes that the Tinseltown trappings or high-profile defendants featured in what seem like ever-breaking “big name” sexual harassment allegations allow us to distance ourselves from the heartbreaking sadness of forced sexual encounters in vacant hotel rooms faced by these otherwise invisible women. When I think about sexual harassment, I want also to remember them.

The case is Charest v. Sunny-Aakash, LLC (M.D. Fla., September 20, 2017).