FLASHBACK: Trump Labor Pick Eugene Scalia Argued Companies Shouldn’t Necessarily Bear Legal Responsibility for Bosses Who Sexually Assault or Threaten Employees

July 25, 2019

Scalia in 1998: “Saying ‘You’re An Incompetent Stupid Female Bitch’ A Single Time Is Not Actionable Environmental Harassment.”

WASHINGTON, D.C. (July 25th, 2019) — President Trump’s Labor Secretary pick Eugene Scalia’s record representing big corporations that trampled workers’ rights was disqualifying enough. Now some of Scalia’s past legal opinions, unearthed by consumer watchdog group Allied Progress, reveal there was no line he was not willing to cross to shield companies from legal responsibility, even to argue that workplace protections against sexual harassment and assault put too much onus on company leadership. These are views he held even in the 1990s when victim-blaming was prevalent and inappropriate workplace behavior was more commonly swept under the rug.

Scalia proposed letting companies off the hook in these kinds of cases in the Harvard Journal of Law & Public Policy in 1998, offering these scenarios: “One supervisor orders his assistant to accompany him on a business trip and gropes her on the plane, at dinner, and in the hotel. A second supervisor does the same and tells her that’s what he did with her predecessors. … I believe the employer should not be liable in any of these scenarios unless it endorsed the conduct.”  Scalia also opined: “Saying ‘You’re an incompetent stupid female bitch’ a single time is not actionable environmental harassment.”

Derek Martin, director of Allied Progress reacted: “Only Donald Trump would pick a guy who thinks sexual assault at work isn’t a company problem to run his Labor Department. Eugene Scalia may be a gifted legal mind, but his moral compass clearly needs some calibration. The Senate should reject this nominee and demand a Labor Secretary who will look out for all Americans in the workplace, not just the ones that sign the checks.”

Consumer watchdog group Allied Progress echoed its prior call on the Senate to reject Scalia’s expectednomination to be the next Secretary of Labor. Scalia’s record shows he would be a threat to the agency’s fundamental mission to look out for the welfare of workers and job seekers, from his attacks on raising the minimum wage, to his representation of corporations accused of illegally mistreating whistleblowers and union organizers, to his reputation as a “one-man scourge” against the Wall Street reforms put in place to protect workers following the financial crisis, to his extreme views that companies shouldn’t be accountable for sexual misconduct at the workplace.

WHAT YOU NEED TO KNOW:

Eugene Scalia Believes Companies Are Not Necessarily Liable For Sexual Harassment Against Their Employees

Eugene Scalia Has Argued That Weighing Employers’ Quid Pro Quo Sexual Threats As A Distinct Form Of Sexual Harassment Is “The Triumph Of Form Over Substance” And “Should Be Abandoned.”

Eugene Scalia Has Argued That The Legal Concept Of Quid Pro Quo Sexual Harassment, Or Threatening Employees Into Submitting To Sexual Advances, “Should Be Abandoned” And It Represents “The Triumph Of Form Over Substance.”

Eugene Scalia Argued That The Concept Of Quid Pro Quo “Should Be Abandoned” Because It Is “Redundant And Ambiguous In Theory, And Cumbersome And Confusing In Practice.” In a 1998 article in the Harvard Journal of Law & Public Policy, Eugene Scalia argued,“quid pro quo is redundant and ambiguous in theory, and cumbersome and confusing in practice. It should be abandoned.” [Eugene Scalia, “Article: The Strange Career of Quid Pro Quo Sexual Harassment,” Harvard Journal of Law & Public Policy, 307, Spring 1998]

• The American Bar Association Defines Quid Pro Quo Harassment As “When A Job Benefit Is Directly Tied To An Employee Submitting To Unwelcome Sexual Advances.” “This occurs when a job benefit is directly tied to an employee submitting to unwelcome sexual advances. For example, a supervisor promises an employee a raise if she will go out on a date with him, or tells an employee she will be fired if she doesn’t sleep with him. Only individuals with supervisory authority over a worker can engage in quid pro quo harassment, since it requires the harasser to have the authority to grant or withhold job benefits.” [“Sexual Harassment,“ American Bar Association, 03/18/13]

Eugene Scalia Argued That Quid Pro Quo “Owes Its Longevity To The Triumph Of Form Over Substance In The Application Of Discrimination Law.”[Eugene Scalia, “Article: The Strange Career of Quid Pro Quo Sexual Harassment,” Harvard Journal of Law & Public Policy, 307, Spring 1998]

Eugene Scalia Argued That The Quid Pro Quo Threats Should Not Be Treated As A Separate Form Of Discrimination.

Eugene Scalia Wrote, “No Reason Exists To Treat Quid Pro Quo Sexual Harassment Cases As A Category Of Discrimination Separate And Apart From Adverse Job Action Simple.” “Whatever the origin of the quid pro quo test for women who suffer adverse job action because they refuse to trade sex for work, today no reason exists to treat quid pro quo retaliation cases as a category of discrimination separate and apart from adverse job action simple.” [Eugene Scalia, “Article: The Strange Career of Quid Pro Quo Sexual Harassment,” Harvard Journal of Law & Public Policy, 307, Spring 1998]

Eugene Scalia: It Would Be A “Tired Formalism” And A “Legal Fiction” To Hold Companies Responsible For Managers Who Sexually Assault And Threaten Employees.

Eugene Scalia Said It Would Be A “Tired Formalism” And A “Legal Fiction” To Hold A Company Responsible If Its Supervisors Ordered Employees On Business Trips, Groped Them, And Then Threatened To Fire Them.

Eugene Scalia Argued That An Employer Should Not Be Liable If Its Supervisors Ordered Employees On Business Trips, Groped Them, And Then Fired Them If They Didn’t Submit. “One supervisor orders his assistant to accompany him on a business trip and gropes her on the plane, at dinner, and in the hotel. A second supervisor does the same and tells her that’s what he did with her predecessors. A third supervisor adds that if she doesn’t submit she’s fired. The first scenario is environmental harassment only, not quid pro quo. The third is both. The second is ambiguous. I believe the employer should not be liable in any of these scenarios unless it endorsed the conduct.” [Eugene Scalia, “Article: The Strange Career of Quid Pro Quo Sexual Harassment,” Harvard Journal of Law & Public Policy, 307, Spring 1998]

Eugene Scalia Said That It Would Be A “Tired Formalism” And Implied It Would Be A “Legal Fiction” To Argue The Employer Should Be Liable For The Threat Against The Employee In This Scenario. “Others will argue that the employer should be liable without more in each. Either answer has more to recommend it than yoking to the tired formalism of quid pro quo yet another legal fiction: that the supervisor who goes the extra measure and violates the company non-discrimination policy in word as well as deed, thereupon acts with the authority of, and on behalf of, the company.” [Eugene Scalia, “Article: The Strange Career of Quid Pro Quo Sexual Harassment,” Harvard Journal of Law & Public Policy, 307, Spring 1998]

Eugene Scalia: “Saying ‘You’re An Incompetent Stupid Female Bitch’ A Single Time Is Not Actionable Environmental Harassment.”

Eugene Scalia Argued That Calling An Employee “‘An Incompetent Stupid Female Bitch’” A Single Time Is Not Actionable Environmental Harassment.”

Eugene Scalia Argued That If An Employer Called An Employee “‘An Incompetent Stupid Female Bitch’ A Single Time It Would Not Be Actionable Environmental Harassment.” “Saying ‘You’re an incompetent stupid female bitch’ a single time is not actionable environmental harassment.” [Eugene Scalia, “Article: The Strange Career of Quid Pro Quo Sexual Harassment,” Harvard Journal of Law & Public Policy, 307, Spring 1998]

Eugene Scalia: “Why Should Suit Lie For Saying ‘I Don’t Have Time For You Right Now, Kim, Unless You Tell Me What You’re Wearing,’[…]?”

Eugene Scalia Asked Why An Employer Should Be Liable For A Quid Pro Quo Threat By Saying To An Employee, “‘I Don’t Have Time For You Right Now, Kim, Unless You Tell Me What You’re Wearing.’”

Eugene Scalia Asked Why An Employer Should Be Liable For A Quid Pro Quo Threat By Saying To An Employee, “‘I Don’t Have Time For You Right Now, Kim, Unless You Tell Me What You’re Wearing.’” “Why should suit lie for saying ‘I don’t have time for you right now, Kim, unless you tell me what you’re wearing,’ a statement that Judge Flaum found to be a quid pro quo proposition in his Jansen opinion?” [Eugene Scalia, “Article: The Strange Career of Quid Pro Quo Sexual Harassment,” Harvard Journal of Law & Public Policy, 307, Spring 1998]

Eugene Scalia Argued That The Quid Pro Quo Threat In This Case Is Not “Substantial Enough, Or Different Enough, To Constitute A Separate ‘Form’ Or ‘Category’ Of Discrimination.” “More to the point, if the retaliation case is treated as adverse job action, and the submission case is handled as environmental discrimination, it is difficult to see how the quid pro quo threat alone is substantial enough, or different enough, to constitute a separate ‘form’ or ‘category’ of discrimination.” [Eugene Scalia, “Article: The Strange Career of Quid Pro Quo Sexual Harassment,” Harvard Journal of Law & Public Policy, 307, Spring 1998]

A Conservative Lawyer Called Scalia’s Argument “Nothing Less Than A Well-Cloaked Assault Upon The Citadel Of Sexual Harassment Law Itself.”

Steven H. Aden, The Top Lawyer For “America’s Most Effective Pro-Life Organization,” Argued That Scalia’s Article Was “Nothing Less Than A Well-Cloaked Assault Upon The Citadel Of Sexual Harassment Law Itself.”

In A Rebuttal To Scalia’s Article, Lawyer Steven H. Aden Argued That Scalia’s Argument Was “Nothing Less Than A Well-Cloaked Assault Upon The Citadel Of Sexual Harassment Law Itself.” “Scalia’s argument is nothing less than a well-cloaked assault upon the citadel of sexual harassment law itself. In tearing down the quid pro quo/hostile environment superstructure, Scalia ignores or redefines several types of sexual harassment claims, leaving them either without adequate remedy or with heightened standards of employer liability to meet.” [Steven H. Aden, Esq., “Symposium: “Harm In Asking“: A Reply To Eugene Scalia And An Analysis Of The Paradigm Shift In The Supreme Court’s Title Vii Sexual Harassment Jurisprudence,”8 Temp. Pol. & Civ. Rts. L. Rev. 477, Spring 1999]

Steven H. Aden Is Now Chief Legal Officer And General Counsel At Americans United For Life, “America’s Most Effective Pro-Life Organization.” “Steven H. Aden serves as Chief Legal Officer & General Counsel at Americans United for Life. Aden joined Americans United for Life in August 2017, overseeing all legal operations of America’s most effective pro-life organization.” [“Steven H. Aden,” Americans United for Life, accessed 07/23/19]

In 2011, Eugene Scalia Reportedly Defended HSBC Bank In A Sexual Harassment Case By Attempting To Depict A Deposed Witness As A “Slut.”

Eugene Scalia Represented HSBC Bank In A Sexual Harassment Case That Alleged The Bank Had Fired An Employee In Retaliation For Reporting Inappropriate Behavior By A Senior Employee.

HSBC Bank Hired Eugene Scalia As A Defense Counsel After It Was Sued For Firing An Employee In Retaliation For Reporting A Senior Employee’s Inappropriate Behavior Towards A Co-Worker. “I reported a long feature for HuffPost Highline last year about Picarella, who in 2011 joined a three-person team at HSBC and almost immediately discovered that his boss, Eileen Hedges, was harassing a young analyst, who in the story I called Jill. […] Eventually he decided to go to HR to report Hedges’s behavior. This led to Jill getting fired (for lying to HR about a relationship with a fellow employee) and Picarella losing all his responsibilities at work. […] Picarella sued HSBC over the retaliation, and that’s where Eugene Scalia comes in:  HSBC hired him as defense counsel.” [David Dayen, “Eugene Scalia Once Represented a Big Bank in a Sexual Harassment Case. It Got Ugly.,” The American Prospect, 07/22/19]

• HSBC Settled With The Abused Employee For A “Rumored” “Low Seven Figures.” “HSBC, after firing Jill, did conduct an investigation of one aspect of the harassment claim, and it resulted in a settlement with Jill rumored to be in the low seven figures. Hedges was eventually fired, though she landed with a good job at a vendor of HSBC’s.” [David Dayen, “Eugene Scalia Once Represented a Big Bank in a Sexual Harassment Case. It Got Ugly.,” The American Prospect, 07/22/19] 

Eugene Scalia Reportedly Tried To Depict A Witness As A “Slut” In Order To Dismiss Her Claims Of Sexual Harassment, Even Though HSBC Had Already Settled With Her.

In Defending HSBC Bank From The Case, Scalia Used “Probing Questions About [A Deposed Witness’] Romantic Relationships To “Depict [Her] As A Slut And Effectively Dismiss Her Claims.” “For much of the deposition, Scalia asked probing questions about Jill’s romantic relationships. Scalia intimated that Jill was stalking a former HSBC colleague, asked if others in the office had nude photographs of her, and queried about various other sexual partners. At one point Scalia used the fact that Jill told a colleague about a senior HSBC executive grabbing her behind, but not her leg, as some proof that she wasn’t being wholly truthful. The line of questioning ventured close to the experiences Jill cited at HSBC as harassment. And the goal was obvious—to depict Jill as a slut and effectively dismiss her claims, as a bank shot to discredit Picarella’s retaliation case.” [David Dayen, “Eugene Scalia Once Represented a Big Bank in a Sexual Harassment Case. It Got Ugly.,” The American Prospect, 07/22/19]

• “Like any attorney, Scalia is entitled to vigorously represent his client. But in this case, he depicted a sexual harassment victim —someone who already had received a settlement from HSBC—as a philandering liar.” [David Dayen, “Eugene Scalia Once Represented a Big Bank in a Sexual Harassment Case. It Got Ugly.,” The American Prospect, 07/22/19]

As Recently As 2015, Eugene Scalia Was Part Of A Legal Team That Tried To Get A Class Action Sexual Harassment Case DismissedBy Claiming A Company Could Not Be Held “Vicariously Liable For Acts Outside The Scope Of Managers’ And Supervisors’ Employment.”

In 2015, Eugene Scalia Defended Ford Motor Company Against A Sexual Harassment Lawsuit And Attempted To Get The Case Dismissed On “Legalistic Grounds” Arguing In Part That Ford Couldn’t Be Held Liable For Actions “Outside The Scope Of Managers’ And Supervisors’ Employment.”

Eugene Scalia Represented Ford Motor Company In A “Class Action Sexual Harassment Lawsuit” In Which The Company’s Legal Team Asked “A Federal Judge To Dismiss The Case On A Wide Range Of Legalistic Grounds.”“Ford has moved to dismiss a class action sexual harassment lawsuit that has been broadened to include 29 more women, including employees at the Chicago Stamping Plant in Chicago Heights. […] Ford’s legal team, which includes Eugene Scalia, the son of Supreme Court Justice Antonin Scalia, is asking a federal judge to dismiss the case on a wide range of legalistic grounds and submitted 472 pages of documents to support their case. Ford’s attorneys for instance say the claims of five of the defendants should be dismissed because they failed to disclose their claims against Ford as potential assets in bankruptcy proceedings.” [Joseph Pete, “Ford asks court to toss growing sexual harassment lawsuit,” The Times, 07/05/15]

• Ford’s Defense Team On The Case – Which Included Eugene Scalia – Explicitly Argued That “Ford Cannot Be Held Vicariously Liable For Acts Outside The Scope Of Managers’ And Supervisors’ Employment.”[Joseph Pete, “Ford asks court to toss growing sexual harassment lawsuit,” The Times, 07/05/15]

Thirty-Three Women Claimed That, While Employees At A Ford Plant, They Were Subject To Sexual Harassment, Unwanted Touching, Explicit Photos Of Their Colleagues’ Genitals, And Attempted Rape.

Thirty-Three Women Claimed That While They Were Employed At A Ford Plant, They Were Subject To “Unwanted Touching, Unwelcome Sexual Advances, Requests For Sexual Favors, Male Colleagues Showing Them Pictures Of Their Genitals And Attempted Rape.”“Thirty-three female employees total at local Ford plants now say they were victims of unwanted touching, unwelcome sexual advances, requests for sexual favors, male colleagues showing them pictures of their genitals and attempted rape, in a federal lawsuit filed in November.” [Joseph Pete, “Ford asks court to toss growing sexual harassment lawsuit,” The Times, 07/05/15]

The Employees Alleged They Were Retaliated Against If They Tried To Report The Sexual Harassment.

The Employees “Alleged They Were Written Up Or Threatened” If They Complained. “Female autoworkers alleged they were written up or threatened with being fired if they dared to complain. They also said men were routinely given personal days they hadn’t earned and were paid for overtime they didn’t work, while women didn’t enjoy such privileges.” [Joseph Pete, “Ford asks court to toss growing sexual harassment lawsuit,” The Times, 07/05/15]

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