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Monday, March 29, 2004



Fear and loathing in the U.S. workplace

NEW YORK -- A friend wrote to say that a professor both of us know was summarily fired on charges of sexual harassment. Not long afterward it was found that the accusation had no basis, but by then it was too late. Our friend had moved out of the region with his family.

As it happens, I wrote a report on sexual harassment in 1998 when the U.S. Supreme Court decided on two cases -- two of what Joanna Grossman would later call "a trilogy" in her entry on the subject in "The Oxford Companion to American Law" (2002): Burlington Industries v. Ellerth and Faragher v. City of Boca Baton. (The third, Kolstad v. American Dental Association, which came out the following year, clarified when punitive damages may be levied against the employer.)

At the time some regarded this legal concept -- if it is one -- as ill-defined and thought the decisions would simply increase the burden already placed on the employer in this regard. I agreed. Now, six years later, I think the decisions have helped to create a police-state atmosphere in the workplace.

In Burlington Industries v. Ellerth, the Supreme Court remanded the case to the appeals court, saying the latter was right in recognizing the existence of "vicarious liability" in the case. The lower court had produced eight different opinions but did agree on that point. Vicarious liability means that the employer must take responsibility for an employee's action or nonaction.

In Faragher v. City of Boca Baton, the Supreme Court overturned the appeals court decision, saying the district court was right in deciding that Boca Baton City was not thorough enough in notifying its employees that an antiharassment measure was in place. The appeals court had said that demanding the kind of thoroughness the plaintiff wanted was "excessive."

In both cases the plaintiffs initiated their lawsuits after a lapse of some time: Kimberly Ellerth several months after she quit her job; Beth Ann Faragher two years after she resigned. Also, Ellerth at first did not think she had quit her job because she was sexually harassed. The Equal Employment Opportunity Commission took the initiative.

EEOC, the overseer of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of "race, color, religion, sex, or national origin," perhaps decided to make up for the debacle that was the Clarence Thomas affair in 1991. Thomas, when nominated to the Supreme Court, was accused of misconduct when he headed the EEOC.

These two decisions, in any event, held the employer responsible for employee conduct and said employer oversight must be thorough. Although in Burlington the Supreme Court said the employer can pursue "affirmative defense" as long as he has in place a strict procedure to respond to sexual harassment complaints, the court also said the employer was liable even when no "quid pro quo" -- "sleep with me or you're fired," as Grossman puts it -- is involved.

In the court's phrasing, whether the employee suffers any "adverse tangible job consequences" is not material. In this framework, the employer naturally overreacts. To be on the safe side, he actively seeks sexual harassment even when those involved do not perceive it. He takes on the mien of the secret police, ferreting out subversion, real or imagined.

In addition, although it is understood that misconduct must constitute "a pattern" to make a case, in reality a single complaint puts the accused in jeopardy. And, though I can't point to a court decision that says complaints can be made anonymously, they actually are so made, and the accused are proscribed from seeking out the accuser. The accuser has all the rights; the accused, none. There is no room for talk and enlightenment.

If all this doesn't create a "hostile work environment," which is the other prong of the concept of sexual harassment, what does? And, again, though an earlier court decision said "a hostile environment claim requires harassment that is severe or pervasive," in reality a passing remark overheard can be taken to create such an environment.

Joanna Grossman, in her entry for "The Oxford Companion," puts her finger on the largely subjective aspect of the situation when she writes: "Sexual-harassment claims are also hard to prove because of the difficulty in distinguishing between normal social interaction and harassment. . . . Moreover, much of the conduct that may contribute to a hostile environment is perfectly legal and appropriate if it is welcome, but actionable if it is unwelcome."

Grossman is an associate professor at Hofstra University School of Law who apparently has made part of her reputation by writing articles such as "The Culture of Compliance: The Final Triumph of Form Over Substance in Sexual Harassment Law." Thus, after pinpointing the inherent problem, she turns her attention to the "victims" of harassment. She doesn't think much of objections on First Amendment grounds.

How has such a unilateralism been allowed to come into being? I can think of three reasons: First, American society is legalistic and litigious. Second, a recent trend -- what Robert Hughes has characterized as a "culture of complaint" -- has developed. Third, the view has been promoted that in a "paternalistic" society like that of the United States no "consent" can be made between man and women on an equal footing. This last, developed and single-mindedly pursued by the law professor Catherine MacKinnon, ultimately led to the concept that, in the formulation of another student of law, Jeffrey Toobin, "there is no sex without harassment."

MacKinnon, who wrote "The Sexual Harassment of Working Women" in 1979, seems to have largely failed in her crusade to introduce antipornographic ordinances in various cities. One judge said such ordinances would be tantamount to instituting "thought police." But she has eminently succeeded in the workplace and in academia.

Hiroaki Sato is a translator and essayist who lives in New York.

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