The Sad Evolution of Sexual Harassment

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$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

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 locker apart from any other consideration – constituted 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.

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 of threats) is to be a matter 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.

27, 2004

McElroy [send her mail]
is the editor of
and a research fellow for The
Independent Institute
in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

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