And this raises a third question: Who is to say how an employer can best deal with sexual harassment claims? If the company’s own survey indicates that it needs to do something different from what is being done now, who gets to decide what that should be?
In fact, the D.C. Circuit itself saw a need for reforms in its decision in Farrar v. Hobby Lobby Stores Inc., a case involving religious objections to contraception coverage mandated by Obamacare (though I’d argue that there are other ways of accomplishing this goal). The court held that while Congress could pass legislation requiring employers not to provide contraceptive coverage through their health plans, such legislation would have been unconstitutional if it required women who work at companies with religious objections either to pay out of pocket or else forego benefits altogether simply because they were female employees rather than male employees. In other words, if Congress was going to force employers like Hobby Lobby and Conestoga Wood Specialties Corporation—whose owners had sincerely held religious beliefs against providing certain forms of birth control—to violate those beliefs under threat of severe financial penalties imposed on them by the federal government, then federal law had no right “to interpret religion as meaning adherence only when motivated by religiously based reasons.” A ruling against Hobby Lobby therefore would have effectively made every employee objecting about his or her wages also subject not just to discrimination lawsuits but also potentially severe financial penalties imposed on him or her personally by the federal government simply