Disclosure_ A Novel - Michael Crichton [57]
“Okay.”
“Now, going back to last night. What happened next?”
“Meredith Johnson called the house and spoke to my wife.”
Fernandez’s eyebrows went up. “I see. Did you expect that to happen?”
“God, no. It scared the hell out of me. But apparently she was friendly, and just called to say that the morning meeting was rescheduled for eight-thirty. Today.”
“I see.”
“But when I got to work today, I found that the meeting had actually been scheduled for eight.”
“So you arrived late, and were embarrassed, and so on.”
“Yes.”
“And you believe that it was a setup.”
“Yes.”
Fernandez glanced at her watch. “I’m afraid I’m running out of time. Bring me up to date about what happened today quickly, if you can.”
Without mentioning Conley-White, he described the morning meeting briefly and his subsequent humiliation. His argument with Meredith. His conversation with Phil Blackburn. The offer of a lateral transfer. The fact that the transfer would deny him the benefits of a possible spin-off. His decision to seek advice.
Fernandez asked few questions and wrote steadily. Finally, she pushed the yellow pad aside.
“All right. I think I have enough to get the picture. You’re feeling slighted and ignored. And your question is, do you have a harassment case?”
“Yes,” he said, nodding.
“Well. Arguably you do. It’s a jury case, and we don’t know what would happen if we went to trial. But based on what you have told me here, I have to advise you that your case is not strong.”
Sanders felt stunned. “Jesus.”
“I don’t make the laws. I’m just telling you frankly, so you can arrive at an informed decision. Your situation is not good, Mr. Sanders.”
Fernandez pushed back from her desk and began to stuff papers into her briefcase. “I have five minutes, but let me review for you what sexual harassment actually is, under the law, because many clients aren’t clear about it. Title VII of the Civil Rights Act of 1964 made sex discrimination in the workplace illegal, but as a practical matter what we call sexual harassment was not defined for many years. Since the middle nineteen-eighties, the Equal Employment Opportunities Commission has, under Title VII, produced guidelines to define sexual harassment. In the last few years, these EEOC guidelines have been further clarified by case law. So the definitions are quite explicit. According to the law, for a complaint to qualify as sexual harassment, the behavior must contain three elements. First, it must be sexual. That means, for example, that making a profane or scatological joke is not sexual harassment, even though a listener may find it offensive. The conduct must be sexual in nature. In your case, there’s no doubt about the explicitly sexual element, from what you have told me.”
“Okay.”
“Second, the behavior must be unwelcome. The courts distinguish between behavior that is voluntary and behavior that is welcome. For example, a person may be having a sexual relationship with a superior and it’s obviously voluntary—no one’s holding a gun to the person’s head. But the courts understand that the employee may feel that they have no choice but to comply, and therefore the sexual relationship was not freely entered into—it’s not welcome.
“To determine if behavior is really unwelcome, the courts look at the surrounding behavior in broad terms. Did the employee make sexual jokes in the workplace, and thus indicate that such jokes from others were welcome? Did the employee routinely engage in sexual banter, or sexual teasing with other employees? If the employee engaged in an actual affair, did they allow the supervisor into their apartment, did they visit the supervisor in the hospital, or see them at times when they didn’t strictly have to, or engage in other actions that would suggest that they were actively and willingly participating in the relationship. In addition, the courts look to see if the employee ever told the supervisor the behavior was unwelcome, if the employee complained to anyone else about the relationship