March 5, 1998
Harassment Law Under Siege
By CATHARINE A. MACKINNONFor centuries, sexual harassment was considered "just life." That changed in 1986, when the Supreme Court recognized sexual harassment in the workplace to be a form of sex discrimination. In 1992, the Court extended this recognition to sexual harassment in schools. Since then, this law has intervened in the traditional male prerogative of sexual access to women who are men's subordinates in a hierarchy, as most women are. Yesterday, the Court held that male victims have the same rights against male perpetrators as women have.
Despite this, attempts to reverse such gains have been mounting recently. Many courts have held that a perpetrator cannot be held individually responsible if he is not the employer. Other rulings have made it increasing difficult to hold an employer or an educational institution responsible either. Through this pincer movement, sexual harassment could become a violation without a violator, an injury without a remedy.
Any day, a judge could find that sexual harassment is protected speech.
Against this backdrop, Paula Jones sued Bill Clinton for sexual harassment. When the Supreme Court let her case go ahead while he was in still in the Oval Office, a certain panic set in. The rules of power no longer outranked the rules of law. She mattered as much as he did. Droit du seigneur is dead. Women are citizens.
Then came the allegations that Monica Lewinsky had a sexual relationship with President Clinton -- allegations both have apparently denied under oath. These charges further catalyzed the fears behind and bigotry toward the attempts to reverse the law.
Sexual harassment law, it was said, had gone too far.
Commentators professed shock that a woman could initiate a lawsuit based on mere allegations -- as if any lawsuit begins any other way.
Alarmed pundits argued that sexual abuse at work in and of itself should not be actionable, unless there were other negative workplace consequences, like being fired or demoted -- as if women who have endured years of sexual abuse by their bosses should have no recourse under laws forbidding sex discrimination.
Sexual harassment lawsuits were bemoaned as the end of spontaneous and warm feelings between the sexes -- as if lack of rights promotes freedom and good relations.
The independent counsel law's lack of limits was said to prove that sexual harassment is a dangerous claim -- as if Kenneth Starr were investigating sexual harassment rather than perjury and obstruction of justice.
The media report that men can be asked if they abused women, and women can be asked if men abused them -- as if the end of the world had arrived.
In this remarkable hysteria, the defense of male prerogative has shifted. No longer are men simply arguing that the acts did not happen, or that the claims should fail in court. Now it is said that these troublesome women should not be heard at all. They should not be allowed to derail the serious business of government and industry.
In fact, sexual harassment law has been scapegoated. On no account so far was Ms. Lewinsky sexually harassed. Both she and Paula Jones were women subordinate to the same man at work; sex may or may not have been initiated. But no one so far has claimed that Ms. Lewinsky had "unwelcome" sex, which is essential to bringing a lawsuit for sexual harassment at work. As the judge in Paula Jones's case correctly found, Ms. Lewinsky's testimony was potentially relevant but determined nothing.
The two situations are widely conflated to charge that sexual harassment law is vague, reckless, anti-sex and lacking in standards. But in fact, the courts have used existing legal tools to prevent any such result.
The courts are clear, if others are not, that working women cannot sue for having mutual sexual interactions. Courts also recognize that sexual coercion can be situational: power differences can be a form of force. Sex under conditions of extreme inequality can be coerced and exploitative; sexual compliance can be coerced. But sex cannot be harassment at work by law unless the woman or man really didn't want to have it.
Sex between unequals is sometimes prohibited outright, but not usually at work or in sexual harassment codes. Schools sometimes use disciplinary rules, the military uses anti-fraternization policies, and mental hospitals and prisons use criminal law, all to forbid sex between hierarchical unequals. These provisions work like statutory rape laws: because of power differences, sex with students, recruits or inmates is prohibited, no matter who wants what. This is not sexual harassment law at work.
The allegation that Monica Lewinsky had a sexual relationship with President Clinton struck a nerve because of the inequality between them. Being an unpaid intern at the White House was more like being at school than being at work. People faced the fact that a comparatively young person in a vulnerable position can be sexually exploited, even if she wanted a sexual relationship, whether or not she had a legal claim for sexual harassment.
Yet Monica Lewinsky's predicament is being used to ridicule rules and laws that forbid sex between individuals in which a major power imbalance can lead to sexual exploitation.
The insidious argument that sexual harassment law turns "all sex into harassment" epitomizes the current backlash. The argument is as telling as it is demagogic. Those who believe that "all sex" is threatened by sexual harassment law apparently think that sex pressured through power is "just sex," not sexual oppression. They also assume, oddly, that all sex is unwanted. This is confused.
But their most telling fear is that if all sex must be equal, the end of sex is at hand. Funny, they never mention the alternative, the real possibility of which sexual harassment law is a part, the beginning of liberation: ending the inequality between the sexes.
When we have gone that far, we will have gone far enough.
Catharine A. MacKinnon, a law professor at the Universities of Michigan and Chicago, is the author of "Sexual Harassment of Working Women."
Copyright 1998 The New York Times Company