Regulation: A Reasonable Woman
An open letter about how to stay on the right side of sexual-harassment law
Dear Comrade [according to The Bias-Free Word Finder: Dictionary of Nondiscriminatory Language, the word fellow is no longer acceptable] Small-Business Owner:
The old Russian proverb, "A woman is not a person as a chicken is not a bird," is now enshrined in civil-rights law. Although the U.S. Supreme Court's recent unanimous decision in Harris v. Forklift, which lowered the standard of proof in sexual-harassment cases, did not specifically address it, the "reasonable woman" standard is snaking its way through our courts, legislatures, and administrative agencies.
A 1991 ruling by the U.S. Court of Appeals for the Ninth Circuit, Ellison v. Brady, held that determination of whether behavior or speech constitutes sexual harassment should be based on how a "reasonable woman" would perceive it. Previously the standard had been a "reasonable person." A federal district court in Florida immediately adopted the "reasonable woman" standard; it is now being applied in New York by the city's Commission on Human Rights and in a host of other jurisdictions. Stephen Bokat, vice president and general counsel of the U.S. Chamber of Commerce, predicts that the "reasonable woman" standard will eventually be applied nationwide.
Failure to understand and comply with the "reasonable woman" standard may cause you to kiss (excuse the expression) your business goodbye. Under the 1991 Civil Rights Act, penalties for sexual harassment in the workplace include punitive damages of up to $300,000 per incident (a ceiling Sen. Ted Kennedy, the great defender of womanhood, has vowed to raise to $1 million). This penalty applies if any of your employees brings a complaint against you or a co-worker—or against any of your suppliers, customers, or consultants; your lawyers, accountants, or union representatives; your insurance brokers, artists, or engineers; visiting photographers or journalists; building inspectors, sanitation workers, police or fire officials; bystanders at your job sites; or the homeless who scavenge your trash for recyclables. Under EEOC guidelines on employer accountability, you are now liable for the conscious and unconscious behavior of each of these individuals to the degree it may affect the sensitive psychological environment in your workplace.
You will recall that the standard for the successful prosecution of a harassment complaint is the victim's perception of having been subjected to hostile or unfriendly speech, behavior, or attitudes anywhere within our purview or that of our forepersons and supervisors. As Justice Sandra Day O'Connor wrote in Harris v. Forklift: "So long as the environment…is perceived as hostile or abusive, there is no need for it also to be psychologically injurious." Not that this opinion was itself without controversy. Though women's legal groups unanimously praised the ruling, a number of them had filed briefs arguing that sexual-harassment complainants should not be required to show that the conduct that offended them would also offend either a "reasonable person" or a "reasonable woman." So we have not heard the end of the argument against reasonableness per se.
But so far, the concept of reasonableness remains in place, and we must scrutinize the entrails of these standards so that, through profounder comprehension, we may formulate correct policy and emerge blameproof. What, we may wonder, is the exact difference between a "reasonable woman" and a "reasonable person"? Understanding this distinction may be the key to our survival.
Transcending the vexing question of whether a woman is or is not a person, let us cut to the heart of the matter and ask whether there is or can be such a creature as a "reasonable woman," or whether indeed there should be. Is not the very concept of reasonableness a patriarchal conceit? Does it not represent the hierarchical imposition of left-brain values, an exaltation of the emotionally disordered male "logic" that has created warfare, rapism, poverty, disease, and immeasurable pain and suffering throughout history? As a woman, I take offense at the imputation of "reasonableness." Perhaps I should sue.
Until I make new law establishing my personal criteria of unreasonableism, business owners have to grapple with the question of what the courts might have had in their brains when they established the "reasonable woman" standard. Since the only characteristic that absolutely distinguishes a woman from a genderless "person" is the fact of her sex, we have to infer that a woman's reasonableness is fused to her physiology. So the onset of female puberty must be the indicator of reasonableness. Shall we conclude, then, that business owners should formulate their human-resource policies according to the needs and perceptions of 12-year-old girls? (Having once been a 12-year-old girl, I must say that might not be such a bad idea.)
Or do women achieve their "reasonableness" at the other end of the sexual maturity cycle, the climacteric? Reasonableness would then require that all workplace thermostats be set at 52 (or the average age of those present). Overheated rooms are definitely a form of harassment.
Or is the menstrual cycle itself the signifier of female reasonableness? Do our courts and legislators intend that businesses be run on a lunar cycle, with preordained times for mass edema, irritability, and ovulation? At the appropriate points in the cycle, the company could issue its sales figures, engage in disputes, or announce a merger or spinoff. (Infusions of estrogen into the water cooler should solve the nonconformity problem.)
What other solutions might there be to the predicament we find ourselves in? One answer would be simply not to hire women, who are a hundred times more likely than men to bring sexual-harassment suits. While that may be the unintended consequence, or even the hidden intention, of the new codes, many of us would find that response unacceptable.
Another solution might be to require all employees, suppliers, customers, and service providers to submit all proposed remarks in writing for before-utterance preview (BUP). A special department would be instituted in every company to process these "utterance requests" (U.R.s), thus alleviating unemployment. Unfortunately, this system would not solve the problem of offensive gestures, looks, attitudes, etc., which are also covered by the codes.
Technology offers the most practical answer. A universal computer network, with every operator in an individual air-conditioned cell, would not only achieve the desirable end of physically separating the sexes, it would isolate all potential harassers (everybody) from all potential victims (everybody else). While this system would also accelerate the decline of our cities and cost hundreds of billions of dollars, it would be worth it. In a world where, according to American Management Association guidelines, "unreasonable conduct" includes "condescension… [and] exclusion (overlooking or denying someone access to places, people, or information)," and "unwelcome behavior" is defined as any "conduct that the employee did not solicit or incite and that the employee regards as undesirable" ("Hate your necktie!"), the punitive potential against maintainers of "abusive working environments" is vast. The network I envision would be programmed to automatically screen out all potentially offensive language, behavior, and thought. Eventually it will be possible for communication to take place without any human intervention at all.
Tama Starr is president of the Artkraft Strauss Sign Corp. in New York City and the author of The "Natural Inferiority" of Women: Outrageous Pronouncements by Misguided Males. She is currently working on a book satirizing feminist excesses for Harcourt Brace.
This article originally appeared in print under the headline "Regulation: A Reasonable Woman".