Sexual Harassment: You’re not as protected as you think you are.

*Disclaimer, I am not a lawyer. Nothing here is or should be construed as legal advice.

When I was 15, I worked at a hardware store where my coworkers were mostly older men. A few weeks into my time there, one of them, a guy in his 70’s, started to spend a lot of time standing behind me. Every once in a while, I would feel his hand brush against my butt.

He was touching my butt. At work. He was 48 years older than me and I was a minor. I wouldn’t have been able to consent to it even if he had asked. Sounds like a crime, right?

Turns out, it’s not.

Because of the #MeToo and #TimesUp movements and pushback against sexual harassment in our own state Legislature, we’re finally talking about the harassment a lot of people, especially women and particularly Women of Color and LGBTQ people, experience regularly at work.

Part of the criticism against the #MeToo movement is that people should be convicted in a court of law, not the court of public opinion. Unfortunately, even with very clear proof, the courts fall short.

You may have seen in the news recently that there’s a specific exception for butt-grabbing in Minnesota law. This caught my eye.

The officials working to close that loophole say that, as far as they can tell, the only justification is that someone didn’t want football coaches to get into trouble for patting players on the butt. I’m 26, and when I was a kid, that was still a pretty common trope, but now, most kids would probably think that was weird and gross while most parents would report the coach to the authorities.

The good news is that bills are advancing through both houses of the Legislature to close that loophole. The bad news is that there are a lot of other aspects of our state’s sexual harassment laws where court interpretation is either based on a flawed assumption or completely outdated. What I’ve learned has made me feel both deeply frustrated and weirdly hopeful.

At a recent hearing on sexual harassment policy in the state Legislature, Sheila Engelmeier, an attorney and expert on harassment policies and procedures, pointed out that there’s a broader problem. “You almost have to be raped to qualify as a sexual harassment victim,” she said.

She’s right. Federally, only 2% of plaintiffs win sexual harassment suits. Few cases make it to state court in Minnesota, but the odds aren’t great there either.

Why is our state law not protecting us?

It all boils down to this: what we typically think of as ‘the law’—something written by the legislative branch—is pretty vague. (Check out Subd. 43 to see the Minnesota statute if you’re curious.)

It seems straight forward until you start to ask yourself what the individual words mean.

Early on in case law, that’s what the court is supposed to do. If you look at Supreme Court rulings, you’ll notice they cite dictionary definitions of words like ‘which’ or ‘that’. Judges are supposed to take into account what the legislative branch intended, but anything that’s not defined is up to the courts to figure out.

When our sexual harassment laws were written, the legislative branch didn’t communicate clearly enough with the judicial branch. Also, times have changed. If the courts don’t change with the times, it’s the legislature’s job to provide guidance.

So, what happened?

Courts acknowledged sexual harassment as a form of gender discrimination before civil rights laws added provisions doing the same thing. Court cases uphold laws, laws don’t uphold court cases. When the law changes, it’s a cue to judges that they should rule differently. In this case, judges thought the change meant they needed to separate sexual harassment from non-sexual harassment.

Here’s what this means in practice.

If a harasser tells a female co-worker, “Women don’t belong in [profession]. If you’re going to stay, you should [perform sexual act],” these sentences are related in context, but the law separates them.

On their own, each sentence can be explained away. If the harasser also says “Tall/short people don’t belong in [profession]” then it’s not discrimination based on gender. If the harasser also jokes with their friends and says, “Hey buddy, you should [perform sexual act],” it’s not sexual, it’s a joke.

Feel frustrated? This is about the point in my research when I started to rant out loud to the rest of the office before taking a second to look at these penguins who found a research camera. Feel better? I know I do. This is why I have a growing selection of cute stress balls on my desk.

It’s time to update our state laws.

If we don’t take action, our legal system will continue to work against all people affected by sexual harassment. And, I’m weirdly hopeful, because so many improvements to our laws are straight forward. We can do this.

Women in our state have made history leading on gender justice. It was female miners on the Iron Range who filed the first class-action sexual harassment lawsuit in the country in 1988 and won.

These women, like me, were cis and white. Women of color, LGBTQ people, and men all have their own stories and experiences with sexual harassment. Gender oppression hurts all of us. As my colleague Arique Aguilar says, “All of us do better in a more egalitarian society.”

Here are 4 things our state legislators can do right away:

1. Close the ‘fanny patting’ loophole in state law.
2. Cover paid & unpaid student interns in the Minnesota Human Rights Act.
3. Update the definition of ‘supervisor.’
4. Change the statutes to expand and better relate protections for both gender-related harassment and sexual harassment