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

(Page 3 of 4)

By distinguishing between "threatening or humiliating" conduct and mere offensiveness, Harris did enable some courts to roll back harassment litigation. In 1995, the U.S. Court of Appeals for the 7th Circuit reversed an award to a woman whose boss had acted crudely on a few occasions (grunting to express his appreciation of her skirt, making a remark about masturbation as a cure for his loneliness) and stressed that Title VII was not meant to "purge the workplace of vulgarity." More recently, in Oncale, Scalia pointed out that the law is not a "civility code"; he further stressed that normal "male-on-male horseplay or intersexual flirtation" should not be confused with harassment and urged "careful consideration of the social context in which particular behavior occurs."

But these admonitions are no substitute for actual standards, which remain vague and inconsistent--as evidenced by the confusion over the dismissal of Paula Jones's suit on summary judgment. The decision was well within the law, yet it easily could have gone the other way. Furthermore, as REASON Contributing Editor Walter Olson, author of The Excuse Factory: How Employment Law Is Paralyzing the American Workplace, pointed out in a commentary on the ruling, victories for defendants "are hard to turn into reliable precedent," since current legal doctrine "encourages lower courts to look at the `totality of the circumstances' in each case anew, rather than developing definite rules that clearly assign or reject liability given a particular pattern."

Not all "hostile environment" claims are merely about bad manners. A number involve egregious conduct, sometimes intended to chase female intruders off male turf. In one such case in the 1980s, three women quit their jobs with a road construction crew after a three-month reign of terror in which male co-workers forcibly groped them and urinated in their lunch boxes and water bottles.

Yet some petty claims go a long way. Debra Black, a former manager for the Cincinnati developer Zaring Homes, won a $250,000 judgment in 1995 over a few incidents of juvenile humor by her co-workers, such as suggestions of names like "Hooterville" and "Twin Peaks" for a lot next to a Hooter's restaurant; snickers at the mention of a property owner named Dr. Busam; and a comment by a manager who picked up a pastry at a breakfast meeting and said suggestively, "Nothing I like more in the morning than sticky buns." Black never complained until she was fired for attaching a sheet with the president's signature to a document he hadn't seen.

The same year, former Wal-Mart clerk Peggy Kimzey was awarded $50 million, later reduced by the judge to $5 million. Kimzey had quit her job when her boss wasn't disciplined despite her complaint about his yelling and name calling--non-sexual and directed at both sexes. (Kimzey had refused an offer of a position with a different supervisor.) The sexual harassment claim was based mainly on the fact that five years earlier, the same supervisor had made a couple of vulgar jokes about her body. Kimzey conceded that she wasn't particularly upset at the time; indeed, she had indicated in employee questionnaires that she liked the informal atmosphere on the job and had asked to come back to the same department after leaving for family reasons.

Nor is it clear that a single incident does not create a hostile environment unless it rises to the level of assault--the conclusion many have made from Wright's ruling against Paula Jones. After Harris v. Forklift was remanded to the lower courts, a judge ruled that, while the company owner's vulgar joking did not constitute sexual harassment before Harris told him she found it offensive, the plaintiff was entitled to a damage award of $130,000 on the basis of single crude remark her boss made about a month after she asked him to stop.

The award to Debra Black was later thrown out, and Wal-Mart may yet win on appeal. Still, even a victory is costly for the defendant. Most sexual harassment claims are settled--including some that would be very unlikely to hold up in court, such as a suit filed in 1993 by two female nurses at a hospital in Santa Rosa, California, charging that their female supervisor's penchant for ribald jokes and bawdy birthday cards created "an environment tainted with sexual harassment." Most companies prefer not to be sued in the first place. Since businesses can avoid liability by showing that they don't tolerate harassment, the incentive is to err on the side of proscribing any behavior that might be actionable. Business magazines have long advised that "sexual bantering" and "suggestive remarks" should be stamped out, with no reference to severity, pervasiveness, or even unwelcomeness.

Thus, while relatively few sexual harassment claims may end up in court, measures taken by employers as a direct result of harassment laws--the zero-tolerance policies on "sexual humor and innuendo," the rules at some companies requiring employees who start dating to sign a paper attesting that the relationship is "welcome" and nonharassing, the sexual harassment prevention workshops--affect tens of millions of people.

The "Sexual Harassment Prevention Game," designed by Seattle-based human resources consultant Chuck Hatten for such workshops and purchased by, among others, U.S. West, Boeing, McDonald's, and AT&T, is a striking but representative example of the mentality behind such programs. The board game, in which players move ahead or back depending on the answers they give to questions about hypothetical situations, includes a scenario in which a female janitor complains about locker-room pictures of scantily clad female bodybuilders, put up by another woman as inspiration for her fitness goals. The solution: The pictures must go. In another vignette, male employees who meet for weekly lunches where they trade raunchy jokes must be told that they have to invite women and cut out the humor (that women might contribute some jokes of their own is not even an option). An example of what is not harassment is revealing as well: A man brings flowers to a woman who earlier turned him down for a date, and she accepts but tells him she wants to keep their relationship professional. He's in the clear--but only as long as he never again shows any sign of romantic interest in her.

Thus, some of the worst abuses of the crusade against harassment happen "in the shadow of the law," in actions taken by private companies but traceable to the effects of sexual harassment litigation. Probably the best-known case of this kind was that of Miller Brewing Co. executive Jerold McKenzie, who won $26 million in damages for wrongful termination last year after he was fired for discussing a racy episode of Seinfeld with a female office worker. (While such lawsuits may deter overreaction to harassment complaints, they place employers in a damned-if-you-do, damned-if-you-don't predicament.) At Commonwealth Life Insurance a few years ago, a male manager was demoted with a pay cut and transferred to another office for a reciprocal exchange of off-color greeting cards with a female colleague who later cried harassment. Women who engage in office ribaldry usually benefit from a double standard, but the ax can fall on them too. In 1994 at a branch of United Jersey Bank, a few female tellers and managers shared some giggles over male nudes from Playgirl (with no customers in the bank at the time). A male teller decided to take offense, and the women were punished with unpaid suspensions and demotions.

Employers, of course, should have every right to restrict speech, forbid the display of pictures (sexual or not), or limit dating on the job. They should certainly have the right to require that employees treat each other with courtesy and respect, though different workplaces can be expected to have different cultures. But when the state and the courts impose these rules, which businesses adopt "voluntarily" to avert legal action, that's a different matter. The current interpretation of Title VII has empowered federal judges, juries, and regulators to act as sex and speech police. Apart from the constitutional concerns this situation should raise, it leads to the usual consequences that follow when the state seeks to control private behavior: People are discouraged from resolving personal conflicts on their own and encouraged to snitch on others and to use laws and regulations to settle personal scores.

In the mainstream media, the response to the Blob-like spread of the sexual harassment concept has been ambivalent. There has been some ridicule directed at cases of harassment overkill, such as an esteemed theology professor ordered into counseling for a classroom discussion of a classic story from the Talmud that includes a sexual reference; an employee who was forced to take down from his desk a small photo of his wife in a bikini; and a 6-year-old boy who was punished for "sexual harassment" after giving a girl a peck on the cheek. But the basic assumption that sex-related conduct in the workplace which is unwanted but is neither coercive nor assaultive is a proper area for litigation and regulation has gone largely unchallenged.

Surveys showing an "epidemic" of harassment--based on sweeping definitions that include jokes and unwelcome requests for dates--have received mostly uncritical media coverage. Articles in the popular press have advised men not to say or do anything to a female co-worker that they wouldn't say or do to another man ("Would you tell another guy you like the way he does his hair?") or "to Mom"; both tips imply that women at work must be treated as asexual. Harassment "experts" are still taken seriously when they assert that "what is sexual harassment to one person is not sexual harassment to another," or that "people should be able to arrive at work, do their job and go home without having to hear jokes, stories or comments of a sexual nature." Recently, guidelines to appropriate workplace behavior proposed by the advocacy group 9to5--among them, "Would I want to be seen on the national news saying or doing this?"--were cited by the Associated Press without a trace of irony; nor did the reporter notice the contradiction between this Orwellian precept and the assertion by 9to5 director Ellen Bravo that feminists are not seeking to create "an uptight work environment."

What do ordinary Americans make of all this? Most people with no ideological agenda surely recognize that women contribute a great deal to "sexualizing" the workplace. They probably are ambivalent about making it illegal for a man to pursue a female co-worker after she has told him she isn't interested: Too many marriages started that way. Nevertheless, the message that sexual harassment is A Very Serious Issue has sunk in. The confusion is evident in opinion polls. In a Time/CNN poll earlier this year, more than half of men and women agreed that "[w]e have gone too far in making common interactions between employees into cases of sexual harassment." In a Washington Post poll conducted around the same time, two-thirds of women and 42 percent of men agreed that "[t]he federal government should enact tougher laws against sexual harassment in the workplace." Nearly 80 percent of men and women, however, also thought that false complaints were common, and many reported policing themselves because of the new rules--even avoiding social contact with co-workers of the opposite sex, as about one in four men said they did often or sometimes.

But perhaps the ho-hum reaction to the sexual charges against Clinton speaks louder than polls. Indeed, one indication of how oppressed many people have felt by what one journalist called "the pressure-cooker politesse" of the post-Anita Hill era is the widely acknowledged sigh of relief when "Zippergate" suddenly made it OK to talk about sex and tell salacious jokes at the office--another way in which the Clinton sex scandals may help end the war on sexual harassment.