L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 295, October 31, 2004
The Nightmare After Halloween
The Sad Evolution of Sexual Harassment
Special to TLE
A $60 million lawsuit filed against FOX News and Bill O'Reilly guarantees that the topic of sexual harassment will be batted around by media. The complaint hinges on alleged "phone sex" between O'Reilly and his former associate producer Andrea Mackris. Of the many awkward questions raised by the accusations, one looms large. Even assuming tasteless remarks occurred, how could anyone demand $60 million dollars for conversations on which they could have hung up?
The astronomically high sum demanded, in and of itself, suggests the issue sexual harassment is out of control. The issue has evolved dramatically in the last three decades and now seems to blatantly favor and, perhaps, encourage accusations.
Sexual harassment laws and policies originated in society's sense of fair play. The term entered social debate through Lin Farley's book, "Sexual Shakedown: The Sexual Harassment of Women on the Job," published in 1978. Farley chronicled wrenching stories of sex discrimination that literally destroyed women's careers. It was impossible to leave the book without feeling that something in society was badly wrong; something needed to be changed.
The question was "how."
Businesses are notoriously vulnerable to campaigns of bad publicity, especially concerning the sexual abuse of women. Yet gender feminists immediately and single-mindedly pushed for government agencies to impose de facto law into the workplace through using court precedents and established agencies.
The book "Sexual Harassment of Working Women" (1979) by gender feminist Catharine MacKinnon defined sexual harassment as the legal issue it is today. Namely, as a form of discrimination on the same level as racism for which legal sanctions already existed. Title VII of the Civil Rights Act of 1964 already prohibited an employer from discriminating on the basis of "race, color, religion, sex, or national origin." It was merely a practical matter of extending that prohibition to cover women.
Initially, sexual harassment suits revolved around quid pro quo situations: for example, sleep with me or you are fired. In 1986, however, Meritor Savings Bank v. Vinson legally established the idea of a "hostile environment."
A hostile work environment exists when co-workers or employers engage in unwanted sexual behavior, including comments, which seriously impair an employee's job performance and comfort. This legal concept increased an employer's liability and diminished a complainant's burden of proof. Suits that would have been tossed out of court prior to Meritor now had legal merit.
In 1991, the ground again shifted to favor complainants through three events: Anita Hill's accusations against Clarence Thomas who was then being considered for the Supreme Court; and, the court cases Ellison v. Brady and Robinson v. Jacksonville Shipyards.
The much-televised Hill accusations introduced the issue of sexual harassment into America's living rooms. The National Association of Working Women, which had been receiving about 200 calls a week concerning harassment, began receiving 200 calls a day.
Ellison v. Brady introduced the "reasonable woman" standard into law. Conduct was no longer analyzed from the perspective of a "reasonable person" but of a "reasonable woman." In practical terms, this meant cases would be analyzed from the perspective of the complainant and not the defendant.
Robinson v. Jacksonville Shipyard established that nude pin-ups in a lockerapart from any other considerationconstituted sexual harassment even if the complainant was not targeted. This is the juncture at which jokes spoken at a water cooler became the province of courts.
Thus, as Prof. Ellen Frankel Paul of Bowling Green State University states in her essay "Bared Buttocks and Federal Cases," sexual harassment shifted from the "objectively injurious" to the "merely subjectively offensive."
As that shift occurred, court awards to "victims" rose astronomically.
Barnes v. Train (1974) is commonly viewed as the first sexual harassment case in America even though the term was not used and the first court's dismissed the case. Barnes, an employee of the Equal Opportunities Division of the Environmental Protection claimed that her job was eliminated for refusing to have sex with her employer. Barnes ultimately received $18,000 for back pay and lost promotions even though her abuse was grievous by almost anyone's standard.
Today, Mackris is asking for $60 million. No threat of violence is alleged. No physical contact occurred. Neither promise of promotion nor threat of dismissal seems to have happened. Mackris did not complain to FOX or, apparently, to anyone else before going to the attorney who filed her suit. A comparison of the two figures$18,000 and $60 million is an indication of how far the issue has drifted from its roots.
Happily, a backlash appears to be underway. For example, in June the Supreme Court rendered a decision on Pennsylvania State Police v. Suders. The Court ruled: it is a valid defense for employers to demonstrate that a complainant failed to use whatever reasonable system existed for the reporting of sexual harassment.
The ruling is a step toward sanity. Another step would be for government to cease regulating speech in the workplace. As long as conversation (with the exception threats) to be matters for the court, then abuse is inevitable. The politically correct approach to sexual harassment means that those who claim victimhood are almost automatically believed. This presumption offers lopsided power to those who even hint at an accusation.
Sexual harassment must be rolled back for the same reason it arose as an issue: fairness.
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