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 4 of 4)

Is there a better way to handle real sexual coercion and abuse on the job without polarizing the sexes, rolling out the heavy artillery against trivial misbehavior, or empowering the state to act as a manners police?

In a recently published article in the Yale Law Journal, Yale law professor Vicki Schultz assails the emphasis on sex rather than discrimination in current sexual harassment doctrine. As a result of this focus, she argues, nonsexual discrimination and gender-based hostile acts--men denigrating a female co-worker's competence or sabotaging her work--go unnoticed, while the persecution of innocuous sexual jokes gives feminists a bad name. Schultz's ideas seem to be in vogue with the feminist left: An abridgement of her article was prominently featured in The Nation, and an interview with her appeared in an issue of Ms. devoted to sex in the office.

Schultz makes some good points in criticizing the MacKinnonite equation of sex with sexism. But her suggestion that discrimination without sexual elements is slighted in current litigation is just plain wrong. In fact, many sexual harassment claims--such as the previously mentioned lawsuit against Zaring Co. by former manager Debra Black--are hitched to sex discrimination charges found worthless even by the court which upholds the harassment charge. Moreover, Schultz's approach would likely create more problems that it would solve. Her definition of harassment would require employers to proscribe politically incorrect comments about gender--for instance, that mothers with small children should stay home--and perhaps even comments questioning an individual woman's competence in a "masculine" job.

Other scholars and attorneys would get rid of the discrimination model altogether and deal with sexual misconduct in the workplace as a civil tort. Many acts alleged in serious harassment claims, from sexual battery to indecent exposure, are grounds not only for criminal charges but for civil action--including liability suits against a company which was negligent in failing to protect workers from being victimized on the job. In the mid-1970s, there were also a few successful damage suits under tort and contract law for sexual impositions by superiors involving no force but the abuse of workplace authority.

In a 1990 law review article, Ellen Frankel Paul, a classical liberal political scientist at Bowling Green State University in Ohio, argued for going back to the tort approach. Her proposed tort would cover quid pro quo propositions and sexual conduct that a reasonable person would find "outrageous and extreme"; it would require intentional or reckless wrongdoing by the harasser and "economic detriment and/or extreme emotional distress" to the victim; and the employer would be liable only if it knew of the misconduct but failed to act (or failed to provide a complaint mechanism). Interestingly, many elements of Paul's approach, if not its legal underpinning, are reflected in the emerging new cultural consensus about what constitutes actionable sexual harassment--such as the idea that a legal claim should require either tangible job detriment or severe and demonstrable psychological harm.

That's heartening, since whatever the advantages of a tort approach, such a legal revolution is unlikely in the near future. The harassment-as-discrimination model has become entrenched; the Supreme Court is unlikely to reconsider its unanimous rulings in Meritor and Harris. Even without such radical reform, a great deal would be achieved by changing hostile environment law so as to require actual hostile intent--that is, to change the current wording, which refers to conduct that has "the purpose or effect" of impeding work performance or creating an offensive or hostile environment, to "purpose and effect."

Is it likely that Congress will take any steps that could be perceived as weakening protections against sexual harassment? Few politicians are eager to rise to the defense of people who tell dirty jokes at the office, even if they are victimized by draconian punishments. A few years ago, an attempt by the EEOC to draft "religious harassment" guidelines which would have imposed sexual harassment-style rules on religious expression in the workplace was abandoned after protests from Christian and Jewish groups and from members of Congress; it's hard to imagine legislators taking such a stand in defense of less respectable kinds of expression.

But political and legal practicality is affected by the cultural climate. Right now, there seems to be a great deal of public support for the view that an individual's noncoercive sexual behavior is no one else's business and that a lawsuit based on sexual misconduct should involve actual damage to the plaintiff. Right now is a good time for critics of "sexual correctness" to go on the offensive, hold a consciousness raising of their own, and push for legislative change.

If the Clinton scandals end up negating the effects of the Hill-Thomas drama, it will be the ultimate irony: Clinton's 1992 campaign rode the momentum of the "Year of the Woman," which had its roots in the upheaval over Anita Hill. But maybe that's not bad for a Clinton legacy.

Comments

nfl jerseys|11.15.10 @ 9:07PM|#

crth

log in or register to reply

قبلة الوداع|8.13.11 @ 2:15AM|#

thank u

log in or register to reply