"This is the death of sexual harassment," Susan Carpenter-MacMillan, the flamboyant adviser to Paula Jones, announced on TV–meaning, of course, sexual harassment as a cause, not as behavior, and referring to feminists' failure to support her protegé. That was a few days before Jones's sexual harassment suit against President Clinton was dismissed on summary judgment in March. Since then, there has been a good deal of talk about what the case will mean for the legal system and for the American workplace, with many conservatives in the unaccustomed role of lamenting that women will be discouraged from complaining and many feminists in the equally unaccustomed role of decrying frivolous lawsuits.
As legal precedent, the ruling by Judge Susan Webber Wright in Jones v. Clinton probably won't mean much. But the case and its ramifications may have a lasting effect on the cultural climate–an impact that could ultimately translate into legal change. If Anita Hill's testimony at the Clarence Thomas confirmation hearings seven years ago turned into a "teach-in" that mainstreamed much of the radical feminist ideology on sexual harassment, then the Clinton sex scandals may become a counter-teach-in that brings us a step closer to a more balanced view of the sexual dynamics between men and women in the workplace.
The concept of sexual harassment was around before Anita Hill. It was coined in the mid-1970s, most likely by feminist legal theorist Catharine MacKinnon, and soon gained recognition in the courts. In 1986, the Supreme Court gave its unanimous blessing to sexual harassment law in Meritor v. Vinson, a case in which a bank teller alleged that her supervisor pressured her into a sexual relationship. But the issue remained on the cultural periphery until the "national consciousness raising" of October 1991, when the country was riveted by Hill's claim that as her boss at the Equal Employment Opportunity Commission, Thomas had occasionally asked her out, talked about X-rated movies, and once joked about a pubic hair on a Coke can. Maybe, as journalist Christopher Hitchens suggested in his review of Hill's dreary recent memoir, Speaking Truth to Power, "Everyone was slightly out of their skull that week."
The "teach-in" succeeded: The Thomas-Hill episode established a dominant paradigm of sexual harassment. In this paradigm, any manifestation of sexuality in the workplace, from romantic pursuit to racy humor, is abusive if someone decides–perhaps long after the fact–that it was "unwelcome." Even if they don't mean harm, men who "just don't get it" bear all the blame for sexual conflicts. To question a charge of harassment is grossly insensitive, even if the behavior of the "victim," such as remaining friendly with the alleged harasser, seems to contradict her claims. (Pennsylvania Republican Sen. Arlen Specter had to work hard to live down his "grilling" of Anita Hill.)
When the dust had settled, the new awareness of sexual harassment remained a part of the landscape. "Every time a man and a woman meet at the water cooler now, Anita Hill [is] right there between them," Wayne State University anthropologist Andrea Sankar told Newsweek a year after the hearings–and it speaks volumes about the social climate that this was supposed to be a good thing.
On Nexis, references to sexual harassment grew from fewer than 1,500 in 1990 to more than 8,000 in 1992 and nearly 15,000 in 1994. Every week, some new sexual harassment story was in the headlines. In 1993, New York State legislator Earlene Hill was able to cause a furor by revealing that a few years earlier, a male colleague had failed to move to let her get to her seat and jocularly invited her to climb over his legs, while another had said "sex" instead of "six" while reeling off numbers in a speech and then joked, "Whenever I think of Earlene, I think of sex."
Yet from the moment former Arkansas state worker Paula Corbin Jones came forward in May 1994 with her claim of indecent advances by then-Gov. Clinton, feminists were remarkably quick to abandon the Anita Hill paradigm. On CNN, legal scholar and former Democratic strategist Susan Estrich declared that it was healthy for feminists to make the point that "not all women necessarily are telling the truth, and not every complaint deserves to be used in a way which destroys a man." (Trying to neutralize charges of partisan hypocrisy, Estrich also noted, "Maybe we show it in the case of a friend of ours, but so be it.")
Others who had supported wide-ranging definitions of sexual harassment in the past suggested that if Clinton indeed had Jones escorted to his hotel room, displayed his distinguishing characteristics, and asked for oral sex, it was no big deal. Katha Pollitt, the acid-tongued commentator for The Nation, noted that Jones lost no pay or promotions for rebuffing him. Eleanor Smeal, former head of the National Organization for Women and president of the Feminist Majority Foundation, opined that it was "a marginal sexual harassment case at best."
Many feminists feebly argued that Jones didn't need their help. She was going to have her day in court, they said, whereas Anita Hill would not have been allowed to testify without feminist pressure. The dismissal of Jones's lawsuit took away this excuse; interestingly, some of the people who had used it, including ex-Rep. Pat Schroeder (D-Colo.), applauded Judge Wright's ruling. On ABC's This Week, NOW President Patricia Ireland couldn't give a straight answer to the question, "If Paula Jones's allegations are true, was she harassed?" A number of feminist commentators asserted that a case of harassment must involve some economic or psychological harm to the plaintiff. In fact, that hasn't been the law since 1993–though Wright did cite the absence of tangible damage in dismissing Jones's claim of outrage under Arkansas state law.
At the time Jones's suit was dismissed, allegations of sexual misconduct involving Clinton dominated the national scene as much as the Hill-Thomas circus did, with the post-Jones cases seemingly tailor-made for feminist outrage. Although White House intern Monica Lewinsky's alleged Oval Office trysts were fully consensual by her own account, they appear to involve the sort of vast "power differentials" between participants that many feminists have argued preclude valid consent. (In the topsy-turvy world of the Clinton scandals, it was left to conservatives such as Linda Chavez to take this position.) The charge by volunteer Kathleen Willey that Clinton kissed and groped her when she came to see him about a job had overtones of a quid pro quo shakedown.
While Willey's 60 Minutes appearance finally prompted strong words from Ireland, most feminists still took a "so what?" view of the whole thing. Gloria Steinem published an op-ed piece in The New York Times advancing what has become known as the "one free grope" theory: Clinton's alleged overtures to Jones and Willey, while boorish, did not amount to sexual harassment because he backed off when they said no.
It's getting harder and harder to tell the feminists from critics of "sexual correctness" like Katie Roiphe or Camille Paglia–the ones whom Susan Faludi derided a few years ago as "pod feminists," à la Invasion of the Body Snatchers. Susan Estrich scoffs that if every come-on in the workplace led to a lawsuit, "We'd all be in court all the time." Anita Hill laments "the use of the term sexual harassment to describe any and every kind of sexually related transgression." Faludi herself seems to have been body-snatched: She writes that women who are true adults "acknowledg[e] that sexual encounters are often muddy and fumbled affairs and that, in the case of sexual harassment, the response should be nuanced and in scale to the offense," which sometimes means not reporting it.
The accusations of hypocrisy are well-earned. Faludi, who now mocks the neo-Victorian view of working women as "shocked maiden[s]" horrified by a sexual advance, blames this image on paternalistic male pundits–though she herself once paid homage to that quintessential shocked maiden, Anita Hill. When Susan Estrich stresses that sex with one's subordinate may reflect poor judgment but is not against the law, she conveniently forgets to mention that in her 1991 law review article "Sex and Work" she argued that it should be against the law. But the ironic fact is that the new feminist perspective on men, women, and sex at work is mostly quite sensible.
Of course, this isn't systematic revisionism: Most likely, Clinton's feminist apologists want a one-time exception for a president whom, despite reservations, they regard as supportive of their issues and who is under attack from conservatives. NOW spokeswomen are as hawkish as ever on sexual harassment, except when they hide behind an uncharacteristic deference to judicial decisions in the Paula Jones case. Steinem, who protests that feminists are not against sex in the workplace and certainly not against sex, recently gave a glowing endorsement to a sympathetic book about Andrea Dworkin, the feminist writer who is best known for her belief that all sexual intercourse subjugates women and whom Steinem called "one of the finest writers and minds of our time."
Still, all this twisting and turning by feminists is likely to have a ripple effect they won't be able to control, as farsighted harassment hawks realize. Marie-Jose Ragab, president of a breakaway chapter of NOW in Virginia, told me that the national leadership's attitude was emboldening people to say that laws against sexual harassment have gone too far, a development she described as "inches away from hate speech." The New York Times editorial page, too, warns that feminist excuses for Clinton may erode the effort to restrict "sexual talk or gestures by men in the workplace."
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.
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.
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.