Groping Toward Sanity

Why the Clinton sex scandals are changing the way we talk about sexual harassment

Cathy Young from the August/September 1998 issue

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This much seems clear: The charges of hypocrisy and the dissension in the ranks are certain to undermine the feminists' authority to speak out on sexual harassment. Even Anita Hill's halo as the patron saint of this crusade has been badly tarnished: A standard that requires job-related repercussions for rebuffing unwanted sexual advances doesn't leave much of her case against Thomas.

Of course, as some have pointed out, it's not just feminists who are guilty of double standards when it comes to the Clinton sex scandals: The conservatives who discovered sexual harassment when they discovered Paula Jones aren't far behind (though many conservatives, such as columnist Mona Charen, have warned against jumping on the sexual harassment bandwagon). Legal commentator Bruce Fein, who criticized the Supreme Court in 1993 for eliminating the requirement of economic or psychological damage in sexual harassment cases, assailed Wright for imposing such a requirement in Jones v. Clinton. John Whitehead, the president of the Rutherford Institute--which somehow went from defending the rights of Christians to championing Paula Jones--has compared the harassment endured by working women today to "the way blacks were treated in the twenties and thirties." The Independent Women's Forum, which has directed its share of barbs at harassment litigation, has joined forces with the dissident NOW chapter in Virginia to declare its abhorrence of sexual harassment.

The right-wing conversion to the cause may be driven by more than partisanship or Clinton hating. Some social conservatives (Irving Kristol, for one) have always been guardedly sympathetic to the feminist crusade against sexual harassment, viewing it, rather simplistically, as an effort to restore Victorian protections for the weaker sex. In National Review, Wendy Shalit, the newest member of the woman-as-victim school of conservatism, has warm words for Andrea Dworkin--one feminist who has cut Clinton no slack--and argues that feminism thrives by appealing to women's desire to be sheltered from predatory male sexuality. (That doesn't explain why, in post-Monica polls, women are more willing than men to dismiss Clinton's alleged misconduct as his private business.) But conservatives, whatever their intentions, don't make very convincing activists against sexual harassment, if only because they are latecomers to the campaign. If anything, their posturing sends the message that harassment charges are easily used as a political weapon.

And whatever their intentions, the pro-Clinton feminists are making the culture safe for a backlash against the post-Anita Hill sexual regime--a backlash which has been at least as strong a factor in the forgiving public attitude toward the Clinton scandals as the relatively strong economy, the reason many observers suggest. Judging from what talk show callers say, people may not approve of a middle-aged, married man carrying on with a young subordinate, but they find it at least as outrageous that a sexual harassment complaint should open the way to invasive questions about a consensual affair.

They are also quite willing to recognize that accusers may have ulterior motives and that encounters subsequently labeled as "harassment" may involve complex, reciprocal dynamics: Most people in a poll taken after Willey's TV interview thought neither Clinton nor Willey had told the complete truth. With no feminist thought police to suppress these heresies, even making fun of a woman who claims sexual harassment is no longer politically incorrect. On MSNBC, Wendy Murphy, a staunch feminist victims' advocate, caustically observed that it was ridiculous to "ask for $3 million merely because you saw a penis!"

Of course, cultural attitudes are not the only determining factor in how we approach sexual harassment. The follies and excesses of the crusade against sexual harassment are also a product of bad laws and policies. But perhaps it was only in the cultural climate created by the October 1991 teach-in that these laws and policies could have flourished.

Current harassment law is grafted onto Title VII of the 1964 Civil Rights Act, under the theory--conceived by Catharine MacKinnon--that sexual advances on the job are a form of sex discrimination, depriving women as a class of equal opportunity. Whatever one thinks of the legitimacy of laws banning discrimination in private employment, these laws were never meant to create protections from sexual overtures on the job, which are not "based on sex" in the same sense as the refusal to hire or promote women and which--as the judges who rejected early civil rights suits for sexual harassment pointed out--could be made by a man to other men.

Oncale v. Sundowner, the case in which the Supreme Court affirmed earlier this year that Title VII covers "hostile environment" behavior between heterosexuals of the same sex, highlights the absurdity of the discrimination model--so much so that The Washington Post urged Congress to uncouple sexual harassment from sex discrimination. The mistreatment Joseph Oncale allegedly suffered at the hands of his co-workers on an all-male oil rig--including an assault in the shower in which a soap bar was shoved between his buttocks--is horrible. But whatever the reason he was singled out for such abuse, it surely couldn't have been his gender.

Meanwhile, in male-on-female "hostile environment" cases, the charge of discrimination often rests not on differential treatment of women and men but on the premise that vulgar talk and crude behavior are uniquely harmful or offensive to women. This, University of Michigan law professor Kingsley Browne has noted, "seems like just the sort of stereotype that Title VII was intended to erase."

Indeed, the brand of feminist ideology that underlies the crusade against sexual harassment is focused not on equality but on sexual dominance. The standard response to concerns about the anti-sexual animus of this crusade--"Sexual harassment is not about sex, it's about power"--is disingenuous: To these ideologues, sex is not about sex but about power. MacKinnon, who played a key role in crafting harassment law and who has asserted that feminist theory "treats sexuality as a social construct of male power," is hardly an isolated voice. "Because of the inequality and coercion with which it is so frequently associated in the minds of women, the appearance of sexuality in an unexpected context or a setting of ostensible equality can be an anguishing experience," writes Boston University law professor Kathryn Abrams. "Treatment that sexualizes women workers"--any sort of sexual dynamic between men and women--"prevents them from feeling, and prevents others from perceiving them, as equals in the workplace." Sex is presumed, as it were, to equal sexism.

Many courts have endorsed this radical view; indeed, Abrams's ruminations on the perils of sexuality for women have been cited in several prominent cases, including Robinson v. Jacksonville Shipyards (1991), in which a federal judge in Florida issued an injunction banning not just the display but the possession of pictures or literature with sexual themes in the workplace. Two years later in a less prominent Florida case, Cardin v. VIA Tropical Fruits, another federal court upheld a claim of a sexually hostile environment based primarily on "pervasive" racy cartoons and written jokes at work. Some of this material was posted or circulated by women, and much of it made fun of male anatomy: One cartoon showed a woman peering under the sheets at her mate, with the caption, "Where's the beef?" The court conceded that the humor "depicted both men and women" but went on to explain, in pure MacKinnonite terms: "[V]erbal and visual sexual humor--particularly vulgar and degrading jokes and cartoons repeatedly disseminated in the workplace--may tend to demean women. This is because such joking defines women as women by their sexuality, and consequently may create practical obstacles...in the workplace."

The problems with the discrimination model of harassment law are compounded by the notorious subjectivity of "hostile environment" sexual harassment--defined by the EEOC and by the Supreme Court as "verbal or physical conduct of a sexual nature" that has "the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Official proclamations haven't done much to clear things up.

For instance, according to a U.S. Department of Labor pamphlet, if someone at work "made sexual jokes or said sexual things that you didn't like," or displayed a picture you consider offensive, it's illegal--at least if it's "making it hard for you to work." But does this mean that you dread going to work every day or that you're occasionally distracted? Does it mean that you're the sort of person who has a fit over a copy of Esquire with a cover photo of an actress, coyly looking over her shoulder with her back to the viewer, buttoning up her bra? (This really happened, prompting a full investigation and eventually costing the culprit his job at a wastewater treatment plant in Olympia, Washington.)

"If I run a stop sign, I have broken the law even if I did not intend to," a male EEOC official said during the Hill-Thomas teach-in, defending the emphasis on the victim's response rather than the offender's intent. But while one may fail to see a stop sign, its reality is hardly "in the eye of the beholder." If traffic laws were modeled on harassment policies, there would be no stop signs--you could just be fined for failing to stop when someone thought you should have.

Nor does harassment law require any actual damage to the plaintiff, economic or psychological. All that's needed, the Supreme Court held in 1993 in Harris v. Forklift, is a "discriminatorily abusive work environment." While the ruling stressed "a middle path between making actionable any conduct that is merely offensive and requiring...tangible psychological injury," it gave few clues as to where the line should be drawn. In a concurring opinion that sounded more like a dissent, Justice Antonin Scalia cautioned that the court's decision "lets virtually unguided juries decide whether sex-related conduct...is egregious enough to warrant an award of damages." (He added that given the "inherently vague statutory language," he saw no alternative.) Indeed, Harris was an example of the extent to which harassment litigation had descended into triviality: While the charges in Meritor involved repeated sexual assaults, Teresa Harris, a rental manager at a forklift company in Tennessee, was accusing her boss, Charles Hardy, of nothing more than crude humor--to which she did not object for two years, until Hardy stopped buying supplies from Harris's husband. Indeed, by Harris's own account, when she finally told him she was offended by his antics, Hardy apologized profusely and told her he had no idea she had been upset.