Tonight, Fox News senior political analyst Brit Hume appeared on Special Report to discuss the sexual harassment allegations against Republican presidential candidate Herman Cain. But he quickly made clear that he didn't know anything about the allegations against Cain. Instead, Hume took the opportunity to attack the current prohibition on sexual harassment.
Hume claimed that, while at one point, “subordinate employees were at a terrible disadvantage when subjected to unwanted sexual advances by their superiors,” now the situation has reversed itself and “those superiors are at an equal or greater disadvantage.”
That's some claim. The bosses are now the victims. How can this be true? Hume explains:
HUME: Not only are unwanted advances now against the law, but so is conduct that may be found to create quote “an intimidating, hostile, or offensive working environment.”
The problem is that what is intimidating, hostile, or offensive to some may not be to others. Innocently-intended compliments may be welcome to one person but may give offense to another.
But Hume's statement is either woefully uninformed, or an intentional pack of lies.
Hume is not quoting some new standard of law that wild-eyed liberals came up with. Rather, he is quoting Equal Employment Opportunity Commission guidelines on what constitutes illegal sexual harassment under the Civil Rights Act of 1964 that were upheld by a unanimous Supreme Court decision in 1986 authored by then-Chief Justice William Rehnquist.
Indeed, according to the Supreme Court, courts have held that a hostile environment could violate civil rights laws since at least 1971.
Hume is correct that “what is intimidating, hostile, or offensive to some may not be to others.” But in order to win a sexual harassment case, a plaintiff not only has to prove that he or she subjectively found the working environment to be hostile or abusive but also that the workplace was “objectively hostile or abusive.” In other words, a plaintiff can't win a case based solely on his or her subjective views about what is “intimidating, hostile, or offensive.” From the Supreme Court's unanimous 1993 decision in Harris v. Forklift Systems.
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.
So it's Brit Hume's view of the law against a unanimous Supreme Court.