Nike CEO Mark Parker speaks during a launch event in New York. Brendan McDermid | Reuters

Easy vs. hard

The #MeToo movement has rightly brought attention to questions of sexual harassment and assault. The types of cases that result could be divided into two buckets – what in law school we would label "easy cases" and "hard cases." One of the first thing students learn in law school is that "easy cases" refer to those in which the facts are really extreme – where a rule clearly applies or it doesn't. Here, that would mean egregious examples of sexual harassment, such as allegations of Matt Lauer's lewd and aggressive behavior toward subordinates. "Hard cases" refer to situations where it's harder to figure out whether the parties involved have violated the rule. There might be arguments on both sides, and it might be hard to predict how a court would rule. Or – a favored trap on the bar exam – the conduct might seem really bad as a matter of common sense but doesn't meet the technical requirements of the legal rule. The stories coming out of Nike are the hard cases. They do not clearly meet the legal standard for workplace harassment.

The problem of not-quite harassment

The law governing workplace harassment is quite unforgiving. The offensive conduct must be so severe or frequent that it creates an abusive working environment. The conduct must also be motivated by the victim's membership in a protected category, like their gender or race. Some legal scholars have argued courts have been too unforgiving in applying this test and that it should be brought closer to commonsense understandings of harassment. Lawyers and human resources experts have long known that the legal standard for harassment is incredibly high. So companies worked around it by defining harassment very broadly in their policies. This gave companies the power (but not the obligation) to punish employees for violations of the policy. But pre-#MeToo, it seemed companies chose not to act, even when they had the power to do so. As we now know, this just-do-nothing ethos was a terrible judgment from a moral and public relations standpoint. And while companies may have been correct that a claim may not have been harassment, legally speaking, they completely overlooked their potential liability for future discrimination claims. Here's why. A supervisor's derogatory comments about an employee's gender, race or religion may not amount to a harassment claim. But they are a smoking gun in a later discrimination claim.

The discrimination blind spot

Discrimination claims are all about the supervisor's frame of mind when he or she made a decision about an employee promotion, compensation or firing. But since we can't read someone's mind, the only thing we have to go on is their comments and behavior. If a supervisor makes objectifying comments about a woman's body and then later denies her a promotion, those comments may later be used to show his decision was biased. The Nike story offers a great illustration of this principle. A manager who views women primarily in terms of condom consumption is probably not also thinking of them as a potential vice president candidate. Nevertheless, it is unsurprising to me that Nike's human resources department seemingly failed to identify the problem as discrimination when employees complained. And that's because, in all likelihood, the discrimination had not yet happened. When the woman complained, it probably wasn't yet about a lost promotion, unfair compensation or a termination. It was "just" a comment. Of course, to the employee, it was never just a comment. She would have been keenly aware that her career was in her supervisor's hands. And that he could no longer be trusted. This is not really a rare occurrence for women in the U.S. In representative samples, around 25 percent to 40 percent of women report having experienced unwanted sexually based behaviors at work, and 60 percent said they encountered hostile behaviors or comments based on their gender. It's as though the employee can see the gun and anticipates the bullet to come. But all human resources sees is a weak harassment complaint unworthy of intervention.

A better way