What Is and What Is NOT Sexual Harassment? Let’s Not Bear False Witness.

The following blog is a response to Steve McRae’s #metoo story about claims from Katie Joy Paulson of sexual harassment, which is linked in the references. I first examine how the U.S. defines sexual harassment within workplaces (because that’s where these claims are often made), whether Katie’s claims would be considered sexual harassment using those guidelines, and whether Steve has any legal recourse.

When in Rome, don’t do as the Romans may do. Italian workers lack legal protections against sexual harassment, but American workers are protected. According to the World Policy Analysis Center at UCLA, in 68 countries, including France, Italy, and nations in the Middle East and Latin America, employees have no protections when faced with a hostile work environment or an abusive supervisor or coworkers.[i]

Fortunately, valid claims in the United States are fairly adjudicated. Over the past few years, the #metoo movement has been shedding light on certain celebrities’ dirty little secrets, opening the door to a storm of sexual harassment allegations. Examples from celebrities such as Matt Lauer, Bill Cosby, Bill O’Reilly, and Harvey Weinstein and companies such as Nike and Uber have helped to ignite anger against those in power who’ve acted so unethically and criminally. Of course, we also have examples of claimants whose cases seem rather dubious, such as one from Christine Blasey Ford against Brett Kavanaugh.

In the United States, Title VII of the Civil Rights Act of 1964 explicitly outlaws sexual harassment, which it defines as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”

To adjudicate claims of sexual harassment, the Equal Employment Opportunity Commission (EEOC) examines the circumstances and those involved on a case-by-case basis. Sexual harassment claims are more likely to win if (1) the harassment was corroborated by others; (2) the company lacked or failed to communicate its sexual harassment policy; (3) a quid pro quo (this for that) situation occurred; and (4) managers were aware of the harassment but they failed to act. An example of a quid pro quo would be if a manager told an employee that he could get the promotion or raise if he submitted to a sexual advance. A quid pro quo isn’t necessary in sexual harassment claims. Claimants only need to show a “reasonable person” would believe the sexual harassment posed a “hostile work environment” and the environment is sufficiently pervasive. The courts have ruled that “stray comments” do not constitute sexual harassment.

Enter Steve McRae. While battling with his former business partner (Kyle Curtis) to get the money he’s rightfully owed from a successful YouTube business they shared, a friend of Kyle’s (Katie Joy Paulson) sided with Kyle against Steve. She accused Steve of sexual harassment because Steve tweeted that a porn star whom he and Kyle had on their channel was “hot as f***.” She also claimed she heard him mutter the word that describes a man’s private parts in a conversation. These are not pervasive, sufficient, and no reasonable person would consider these to be sexual harassment or part of a hostile work environment.

Now that we have shown that Katie’s claims would fail if she were in a workplace with Steve, we should examine the legal recourse Steve could have against Katie for publicly tweeting her false allegations about him. These could be considered under U.S. defamation of character laws against slander (spoken words) and libel (written words). Steve McRae is a YouTube personality, yet not to the level of being considered a public (and perhaps Twitter verified) figure with a high burden of proof to file defamation claims. According to Alllaw.com, the following conditions must all be satisfied:

“Though each state has its own particular requirements as to what constitutes defamation, generally all of the following elements must exist:

• publication to someone other than the person being defamed;
• of a false statement;
• of fact (rather than opinion);
• that injures the reputation of the person being defamed (“plaintiff”), and
• is not privileged.”[ii]

It appears from numerous tweets that Steve provided as evidence[iii] that what Katie has said about him is damaging to his reputation. I sincerely hope Katie will retract her claims and move on. Otherwise, one could only conclude she is acting either out of malicious intentions or an intrinsic desire for drama.

[i] Heymann, J. & Vogelstein, R. (2017). Commentary: When sexual harassment is legal. Fortune. November 17. Accessed March 6, 2018 at http://fortune.com/2017/11/17/sexual-harassment-legal-gaps/

[ii] https://www.alllaw.com/articles/nolo/civil-litigation/starting-defamation-character-lawsuit.html

[iii] https://greatdebatecommunity.com/2020/05/21/my-truth-my-story-and-being-metood-by-vlogger-katie-joy-paulson/