Sexual Harassment: What Is It?; W. McElroy

by Wendy McElroy T he issue of sexual harassment is shred ding the fabric of the relations between men and women. Conservatives see laws against sexual harassment as further attacks on men and the free market. Feminists see sexual harassment as yet another outrage against women committed by men and the free market. Men fear to pay women com pliments; some women feel harassed by every Southerner who calls them "honey." It is difficultto remember a time when there was less good will or humor between the sexes. Meanwhile, employers rush to formulate policies they hope will insulate them from charges of sexual harassment, which the Equal Employment Opportunity Commis sion (EEOC) has ruled is a violation of Section 703 of Title VII of the 1964 Civil Rights Act. Because sexual harassment falls under Title VII (which defines the respon sibilities of employers), it is employers who have become the targets of legal action.

According to the EEOC guideline, employ ers are responsible for any sexual harass ment within their businesses if they knew or should have known about the situation and if they took no immediate action to remedy the problem. With all the controversy and liability that adheres to the issue of sexual harassment, one question becomes crucial: What is it? Most feminists answer this question Ms. McElroy is the editor of Freedom, Femi nism, and the State (Cato Institute, 1982), which has been republished as a university text by Holmes and Meier. quickly. The National Organization for Women has offered this definition: "any repeated or unwarranted verbal or physical sexual advance, sexually explicit deroga tory statement, or sexually discriminatory remark made by someone in the workplace, which is offensive or objectionable to the recipient, or which causes the recipient discomfort or humiliation, or which inter feres with the recipient's job performance."

The legal system has evolved its own standards. In general, the judiciary has di vided sexual harassment into two catego ries: (1) a quid pro quo, by which sexual favors are directly traded for professional gain; and (2) a hostile working environment, in which women are threatened. In 1980,the EEOC concurred with this guideline by finding that sexual harassment includes physical, verbal, and environmental abuse. This guideline was affirmedunanimously by the U.S. Supreme Court in 1986. It is the more subtle form of sexual harassment-' 'a hostile working environ ment"-that has caused most of the con troversy and confusion. Companies and in stitutions across the continent scramble to clarify the specifics of this litigious issue. The policy advanced by the Presidential Advisory Committee on Sexual Harassment at York University in Toronto is fairly typical. York defined sexual harassment as: "unwanted sexual attention of a persistent or abusive nature, made by a person who knows or ought reasonably to know that such attention is unwanted; or, implied or expressed promise of reward for complying 234 with a sexually oriented request; or, implied or expressed threat of reprisal, in the form of either actual reprisal or the denial of opportunity, for refusal to comply with a sexually oriented request; or, sexually ori ented remarks and behavior which may reasonably be perceived to create a negative psychological and emotional environment for work and study."

Such policies clarify nothing. Words like "unwanted," "abusive," and "perceived" are too subjective to allow a real sense of what behavior constitutes sexual harass ment. Further attempts to reach a definition seem only to muddy the issue. For example, in September 1989, Harvard University is sued a guideline that removed any connec tion between behavior and intent. In other words, sexual harassment can occur even though the transgressor was a man of good will, with absolutely no intention of harm. In the section "Sexism in the Classroom," the Harvard guideline cautioned: "Alienat ing messages may be subtle and even unin tentional, but they nevertheless tend to compromise the learning experience of both sexes.... For example, it is condescend ing to make a point of calling only upon women in a class on topics such as marriage and the family, imposing the assumption that only women have a natural interest in this area."

The 9th U.S. Circuit Court complicated the definition even more in a landmark decision. Judge Robert Beezer ruled that women are protected from any remark or behavior that a "reasonable woman" would have problems with. The court also embed ded a double standard into the law by declaring that some behavior acceptable to men may be legally actionable by women. No wonder men are resentful. They are being backed into a corner by accusations that seem to have no rules of evidence and little burden of proof. Government Is Not Part of The Solution I stumble into this quagmire with a unique perspective. As an individualist feminist, I 235 believe not only in the rights of women, but also in their dignity. I also believe that the free market is the best way for women to protect both. In short, although I think sexual harassment is a real problem, I don't want government involved in the solution.

I do not include assault or threat of assault in this discussion of sexual harassment. Such behavior is clearly a legal matter. By "sexual harassment" I refer only to behav ior that is non-violent, however offensive it may be. In this, the law should have no part. Yet-because women resort to lawsuits sexualharassmentis almostalwaysdiscussed in legalterms. What is the exact definitionof the offense? What constitutes evidence? I want to ask more fundamental ques tions: (1) Can the law effectivelyaddress this area? Is it even possible for the courts to adjudicate and punish attitudes toward women?(2)Shouldthe law address this area? What is the cost and danger of doing so? To answer the first question it is important to appreciate that sexual harassment is an expression of some men's attitudes toward women. Since I don't believe government can successfully mandate attitudes, I think legal remedies are doomed to failure-or worse. A change in attitude can come only from a change in the hearts and minds of people. This cannot be legislated.

To address the second question: Should government control the bad attitudes of its people? The very prospect of this is horri fying. The worst oppressor in the history of women has been the state. When the state claims to be "protecting" me through pa ternalistic policies, I tend to reach for my dignity, if not for my wallet. But the main reason to avoid the legal system is not historical. It is simply that sexual harassment doesn't violate anyone's rights. What is the purpose of law in society? I believe the purpose of law is to protect individual rights, to protect self-ownership. Self-ownership means that every human being, simply by being human, has a moral and legal claim to his or her own body. Law comes into play only when a woman is a victim or initiator of force.

236 THE FREEMAN • JUNE 1993 Contrast this with the view of law implicit in legislative attempts to prohibit or punish sexual harassment. Most feminists are try ing to use the law to enforce a proper standard of morality or behavior, such as non-discrimination or respect for women. The law has become a means of enforcing "virtue." From this perspective, certain "bad" 3:cts ough~ to be prohibited whether or not they are peaceful. In the case of sexual harassment, because men should not hold degrading opinions of women, the law punishes men whenever their unacceptable opinions are expressed in a public manner. The correct moral position becomes law. I have great problems with imposing my moral views-however correct I believe them to be-on other people. I have trouble understanding how someone' s bad attitude violates my rights. It seems to me that the most fundamental human freedom is the right to weigh evidence and reach a conclu sion. People have a right to reach conclu sions that I find wrong and offensive: They have a right to consider me inferior because of my sex. If I can take someone to court over his or her attitude toward me, this says that I have a right to tell them what opinions they are legally allowed to hold. More than this-it says that the government has a right to regulate opinions.

In Time magazine, Ellen Frankel Paul of Bowling Green State University com mented on this grim prospect: "Do we really want legislators and judges delving into our most intimate private lives? Deciding when a look is a leer and when a leer is a civilrights offense? Should people have a legally en forceable right not to be offended by others? At some point, the price for such protection is the loss of both liberty and privacy rights." Which Standard? Any attempt to impose' 'thought control" would be the death of individual freedom. And this is a freedom to which the weakest members of society (such as women) should cling. If moral and cultural standards can be imposed by law, ultimately it will not be the weak who decide "which standard." Moreover, if government has the right to control and punish cultural attitudes, where will the cut-off point be? If it is proper to punish bad sexual attitudes, why not bad religious ones? Yet the political control of bad attitudes is precisely what sexual ha rassment laws are about.

A driving force behind these laws is so cialist or radical feminism. In tum, this form of feminism is a building block of political correctness-the movement that considers virtually all of Western culture to be racist and sexist. Those who are politically correct seek to correct this injustice by championing the victims of Western civilization. Dinesh D'Souza, in his controversial book Illiberal Education, defined these "victims": "Those who suffer from the effects of Western colonialism in the third world, as well as race and gender discrimi nation in America. " In other words, women and minorities. For th~ good of society, a persecution of "wrong" attitudes toward women has be gun. I believe that a new inquisition is underway, one that is being driven by the political correctness movement. It is-in large part-an economic inquisition.'70neof the main battlefields has become the work place. The heretics to be punished are those businessmen who do not express the polit ically correct attitude toward women.

And yet in condemning the political ex ploitation of abused women, I do not want to deny the importance of sexual harass ment as a problem. Sexual harassment is an offense to the dignity and decency of human beings. To forswear the legal system is not to abandon the right of protest. Many well intentioned men are like those who have never suffered from racism; they have a natural tendency to dismiss the sufferingas not real. Many women share this reaction. Even the insightful commentator Jane S. Shaw declared: "I'm skeptical about sexual harassment simply because during more than twenty years in the workforce, I never experienced anything that I would call sexual harass ment. I have, however, experienced some awkward on-the-job situations that were SEXUAL HARASSMENT: WHAT IS IT? 237 related to sex . . . . They undoubtedly re flected uncertainty about appropriate be havior, especially as mores changed over the past couple of decades. "

I cannot comment on Ms. Shaw's per sonal perceptions or her experiences. But I can add my own. For the last few years, I have achieved a modest status as a writer of documentaries. During this period, I have experienced no sexual harassment whatso ever. Before this, I worked at whatever job I could in order to pursue writing at night. I entered the workforce at the lowest rung. In other words, I was an interchangeable unit. When I was a secretary, thousands of other women could have performed myjob as well as I did. When I was an interchangeable unit, I relied heavily upon the common decency of my employers, who were men. Most were benevolent; a few lived up to the worst stereotypes of predatory men; one crossed the line into assault. Although I do not forgive any of the humiliations, only the assault was a matter for the law. ·Most men are decent people who are busy livingtheir lives. When the shrill and accus ing cry of aggrieved women reaches their ears, they have the natural impulse to turn away. Because they see nothing of them selves in the male caricatures being pre sented, they dismiss the women as hyster ical or man-hating. On at least one level, I can't blame them. Much of men's reactions come from the fact that women are using force, in the form of law, to impose stan dards of behavior upon them. And force is the death of discussion or sympathy.

Men are becoming so angry about sexual harassment that they are losing their sense of compassion for abused women. Every word in the workplace might become evi dence in a legal proceeding. To them, wo men's cry for decent treatment resembles a witch hunt. Men's compassion has been replaced by exasperated demands for a list of things they are no longer allowed to say or do, for a clear definition of what consti tutes sexual harassment. This is a fair ques tion. I freely admit that I cannot clearly define sexual harassment any more than I can clearly define what is offensive. Sexual ha rassment is a subjective term that depends on the personalities and cultural back grounds of the people involved. But to say that the edges of a problem are gray, rather than hard and clean, is not to say that it does not exist. Racism is difficult to define, yet few people would deny its existence. Subjectivity is a good reason for keeping both sexual harassment and racism out of the court system, where the law requires a clear point of enforcement. But it is not a reason to ignore the pain of abused women.

The free market is not an arena ofjustice: It was never meant to be. It is simply a coordinating mechanism, by which supply and demand are balanced. Equally, the court system does not protect my dignity: That is not its proper purpose. It exists to protect my rights. It is up to me to stand up and protest any assault on dignity. Those who tell me to be silent or walk away are denying that I have this right of protest. No wonder so many women are turning to the law. I would like to believe that my commit ment to individual rights and to women's dignity are not in conflict. I do believe that an attack on sexism is not an attack on the free market: It does not deny the right of businessmen to hire and fire according to their own personal judgment. It does say: If an employer has the legal right to fire me, I have the legal right to protest, publicly and loudly, not from the witness stand of a courtroom, but from whatever platforms a free society allows.

Those who are hostile to the free market are using the issue of sexual harassment to gainpolitical control of the workplace. They are having an easy time of it, because they seem to be the only ones addressing a genuine problem. The very intensity of wo men's indignation over sexual harassment should have alerted people to the need for a solution. But by blaming women, busi nesses have dismissed the problem. They have left it to others to voice the growing wellspring of anger. 0 THEFREEMAN IDEASON UBERTY DoNo HARM by Jane M. Orient, M.D. I am Jane Orient, Executive Director of the Association of American Physicians and Surgeons. I am in the solo practice of private medicine in Tucson, Arizona. I speak as a physician who is bound by the Oath of Hippocrates. By my Oath, I must refrain from doing harm to my patients, and I must abstain from mischief and corruption. I may not promise my patient a three-minute remedy and then give her a deadly potion.