Language is what makes human society possible; when people attach perverse and unshared meanings to words, it is an attack on society.--Roy Conlogue
Words can distort when applied loosely.... Words can destroy lives.--Erma Paris
The Clarence Thomas hearings, Tailhook, recent allegations about President Clinton, and a saturation bombardment of news articles, magazine stories, and surveys have got most of the nation talking, if not always thinking, about "sexual harassment." It promises to be the litigation-and-cocktail issue of the '90s.
Kathleen A. Hall's "Primer on Sexual Harassment" in the last issue of The Montana Professor (4.1, Winter 1994) served the valuable function of informing academics about various aspects of this crime. The article also acknowledged, again most valuably, that the concept of "sexual harassment" is "fuzzy" and involves much "hair-splitting" (5). In admitting this, Professor Hall echoes the concern many others have expressed about how the country is going about the legal and social construction of this offense.
Recent articles in The Chronicle of Higher Education suggest the degree to which this highly charged issue now bedevils the academic workplace: "Colleges Must Help to Unravel the Bewildering Complexities of Sexual Harassment" (13 November 1991); "Colleges Must Be Careful Not to Write Bad Policies on Sexual Harassment" (10 March 1993); "Thorny Legal Issues Face Colleges Hit by Sexual Harassment Cases" (4 August 1993); "The Bedeviling Issue of Sexual Harassment" (8 December 1993). Many others have voiced the same questions asked by one exasperated writer: "But what exactly is 'harassment,' sexual or otherwise?.... What is the standard and how is the offense proven?" (Philip Jenkins, "Hard Cases and Bad Law," Chronicles, October 1993, 20).
The purpose of this essay is to explore how courts and colleges have "answered" these crucial questions. It will illustrate just how "fuzzy" the concept is. It will also contend that the concept of "sexual harassment" is now being interpreted and enforced in ways that threaten free speech, due process, and gender relations on and off the campus.
Billie Wright Dziech, co-author of The Lecherous Professor: Sexual Harassment on Campus, writes in The Chronicle of Higher Education (13 November 1991):
Many men do truly understand and have worked just as hard as women to eradicate the problem and to establish that sexual harassment is a professional and ethical, rather than a gender, concern.... Men have as much or more to lose as a result of sexual harassment, and their powers and numbers within institutions compel them to assume even more personal and professional responsibility.
I agree--thus this critique of the ways in which the concept of "sexual harassment" is being defined and applied.
What this essay has to say will not be welcome in some circles, where it will be dismissed as yet another example of "backlash," an au courant epithet invoked at times to discredit feedback a system needs to keep from going to extremes. You readers, of course, will make up your own minds whether or not the examples, the quotations, the law cases, the official pronouncements in this essay make a credIble case that we ought be concerned about how "sexual harassment" is being defined and used.
One of the problems with the concept of "sexual harassment" is that it defies precise definition and has come to embrace an enormous variety of words and deeds. It is important, therefore, to make clear at the outset that this essay is not concerned with quid pro quo harassment, as when a superior offers to trade a job advantage for sex, or threatens a job penalty if sex is not forthcoming. No one is confused about what this is or about its reprehensibility. The form of "sexual harassment" this essay is going to focus on is called "hostile environment" harassment.
According to the Equal Employment Opportunity Commission, this form of "sexual harassment" is created by "verbal or physical conduct of a sexual nature [that] has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment." When the workplace is "polluted" with sexual hostility toward women, the argument goes, it discriminatorily alters the terms and conditions of employment within the meaning of the statute. The hostility may be expressed either through conduct or through speech. Courts have held a sexually hostile atmosphere may exist even if there is no discrimination in wages, job assignments, or other tangible benefits. It is hostile-environment harassment, according to the Affirmative Action Officer at Montana State University, that is "much more common" and "much more difficult to identify" (The Exponent, 22 October 1991). As this essay will contend, this form of harassment is much more common in part because it is more difficult to identify.
In her "Primer," Kathleen Hall writes: "sexual harassment is illegal. It is beyond opinion or feelings. The Supreme Court has decided these issues." This puts too happy a face on the situation. Professor Hall is closer to the truth when she writes earlier, " American sexual harassment laws are a unique combination of fuzziness and hair-splitting." The trouble is, that although "sexual harassment" is illegal, there is no common agreement inside or outside courts about how to define "sexual harassment," or about what specific acts constitute it, especially in reference to "hostile-environment" harassment. As plaintiffs sue and as "malefactors" are punished, "there's still considerable debate over just what constitutes actionable behavior" (Newsweek, 21 October 1991, 34).
The recent Supreme Court decision in Harris v. Forklift, Inc. (1993) may provide some guidance in this regard. Teresa Harris was subjected to a number of demeaning and insulting comments and acts by her supervisor. For example, he described her as a "dumb-ass woman," suggested that they go to a motel to negotiate her raise, and suggested that she landed a lucrative contract by promising to perform fellatio on the client. He also threw things on the ground and commented on how much or little women exposed of their breasts when retrieving them, and asked women, including Harris, to retrieve coins from his pants' pockets. Harris objected, but the behavior continued. She became depressed, drank heavily, and finally quit (USA Today, 13 October 1993).
Although the Court's opinion in Harris v. Forklift, Inc. did not provide a cogent definition of "hostile-environment" "sexual harassment," or spell out specific acts that might constitute such an environment, it did provide a general indication of how the term should be understood. The Court explained that determining whether an environment is "hostile or abusive" entails looking at all the circumstances. Justice O'Connor wrote, "These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance" (qtd. in The Wall Street Journal, 17 November 1993, A22). According to this standard, "merely offensive" conduct is not prohibited. Rather, the conduct must "create an objectively hostile work environment, an environment that a reasonable person would find hostile or abusive."
By using such words as "hostile or abusive," and by requiring that the behavior be severe and frequent enough to unreasonably interfere with work performance, the Court has made clear that the behavior must be excessive, repeated, and injurious. Sexual harassment is a serious crime, according to the Court, because its effects are severe.
But even this effort to provide standards for determining a "hostile environment" leaves many questions unanswered. As Newsweek pointed out, "bosses and judges [will] still have trouble separating harassment from merely oafish behavior" (25 October 1993, 57), and even Justice Scalia complained that the Court's decision "adds little certitude" to already "inherently vague statutory language." The problem is that the Supreme Court, instead of offering its own definition and standards, has essentially followed the administrative guidelines promulgated by the Equal Employment Opportunity Commission. These guidelines, however, are too vague and broad to provide the foundation for consistent and clear law. More to the point, the EEOC's concept of "hostile environment" may itself be too open and subjective to ever be a credible legal concept.
It is too soon to determine how the Supreme Court's decision in Harris v. Forklift, Inc. will affect the way lower courts and other agencies, such as colleges, define "sexual harassment." By this time just about every company and college in the country has drafted its own definition of "sexual harassment," many going well beyond what has been sanctioned by Harris v. Forklift, Inc. My own feeling is that this decision will do almost nothing to deflate or even slow the stunning expansion this term is undergoing thanks to anxious male judges fearful of being seen as sexist, aggressive attorneys pushing the boundaries of legal interpretation, "gender equity specialists" eager to expand the scope of administrative regulations to protect women, and cautious administrators worried about lawsuits. In the following section, I'll examine some of these definitions and show how they dangerously inflate the concept of "hostile environment." Instead of this crime being "beyond opinion or feelings," it is, I'm afraid, very much subject to them.
In Harris v. Forklift, Inc., the Court suggested that the discriminatory conduct must be reoccurring, severe, and "physically threatening or humiliating." With the Supreme Court's definition in mind, let's survey how "sexual harassment" has sometimes been defined both on and off campus. This exercise should make clear just how unclear the situation really is.
According to Chris Burns-DiBiasio, Director of the Affirmative Action Office at the University of New Hampshire, sexual harassment "must involve a pattern of repetition such that a reasonable student would be offended" (in "Guilty If Charged," by Richard Bernstein, The New York Review of Books, 13 January 1994, 11). Notice that the norm of judgment has become a "reasonable student" and that now the behavior does not have to be so "hostile or abusive" as to interfere with performance but merely has to offend, though the Supreme Court seemed to dismiss "merely offensive" utterances.
Many schools and colleges have lowered the standard even further, criminalizing "any unwanted or unwelcome sexual behavior that makes a person feel uncomfortable..." (Essex Junction, USA Today, 11 October 1993). Princeton defines "sexual harassment" as "unwanted sexual attention that makes a person feel uncomfortable or causes attention that makes a person feel uncomfortable or causes problems in school or at work, or in social settings." At Pennsylvania State University "sexual harassment" is simply defined as "anything that makes people uncomfortable about sexual issues" (qtd. in The Village Voice, 14 January 1992). As Katie Roiphe notes, "the word 'uncomfortable' echoes through the all the literature on sexual harassment" (The Morning After 87 [see review in this issue]).
Some schools have even vaguer and lower standards for determining "sexual harassment." Emory University, for example, defines harassment as any behavior or language directed at others on account of race, age, gender, sexual orientation, handicap, etc., that has the "reasonably foreseeable effect of creating a hostile environment for those in the above identified categories." At Brown University, the harassment code says that harassment can be defined as any behavior that produces "feelings of impotence" or "anger" or "disenfranchisement" (The Wall Street Journal, "Speech Codes and Campus Censors," 10 June 1992). Colby College decrees that harassment is any behavior or speech that causes someone to feel "loss of self-esteem." The University of Minnesota defines "sexual harassment," in part, as "callous insensitivity to the experience of women" ("Salem in Minnesota," Academic Questions 5.2, Spring 1992, 74).
Sometimes the definition of "sexual harassment" is broadened in subtle and circuitous ways. Here's how Montana State University defines sexual harassment in a brochure entitled Sexual Harassment and Intimidation: A Preventative Guide for Students and Employees:
Unwelcome sexual advances, requests for sexual favors accompanied by implied or overt threats, unnecessary physical contact, sexually explicit or demeaning comments, or conduct of a sexual nature that creates an intimidating, hostile or offensive working or learning environment, or unreasonably interferes with an individual's academic or work performance.
Although this definition follows EEOC and Supreme Court wording and emphases, it does add "unnecessary physical contact"; the contact, apparently, need not be offensive, lascivious, or even sexual, just "unnecessary."
More intriguingly, MSU has managed to functionally expand the general scope of sexual harassment through the "crime" called "sexual intimidation." This offense is defined as:
Any unreasonable behavior that is verbal or nonverbal, which subjects members of either sex to humiliation, embarrassment or discomfort because of their gender.
Examples of "sexual intimidation" are "making stereotypical remarks about the abilities of men or women," "segregating different assignments based on sex," "segregating students into same sex groups," and "using sexist cartoons to illustrate concepts." This concept of "sexual intimidation" is so broad (thanks to such subjective and vague terms as "embarrassment or discomfort") that it would criminalize, apparently, even feminist stereotypical generalizations about "women's ways of knowing" and thus their ways of not knowing, an assignment that requires males to write about women's magazines, a classroom debate between a group of women and a group of men, or a presentation that uses "sexist" cartoons to illustrate the concept of "sexism." A letter to the faculty from the President of MSU gnomicly "explains" that "sexual intimidation violates state interpretive rules." Perhaps it should come with interpretive rules.
In Harris v. Forklift, Inc., the Court held that the frequency of the discriminatory conduct must be taken into account, implying that it must occur more than once, as the word "harassment" implies. But in "What is Sexual Harassment?" Sascha Ruegemer, a "gender equity specialist," asserts that sexually harassing behavior does not have to be repeated; even one act or word can be labeled sexual harassment "when the behavior of this type is extremely offensive" (The Exponent, 25 September 1992). What do the courts say? Well, that depends on which court you ask. Although some courts have stated that a plaintiff must show a "pattern of harassment" rather than a "few isolated incidents," other courts have expressly rejected that distinction and held that the plaintiff "need not prove that the instances of alleged harassment were related in either time or type" (phrases from court decisions in Browne 486-87)./1/
Many "hostile-environment" cases involve allegedly "obscene" and "pornographic" material in the workplace. The Los Angeles Commission on the Status of Women, however, wants a far lower threshold, one that bans from the workplace "all unwelcome written, verbal, or physical contact with suggestive overtones, including suggestive letters, jokes, displays of suggestive objects, pictures, cartoons, and posters" (Browne 507 #169). Again, notice that the EEOC's word "sexual" has become the even vaguer and more inclusive phrase "suggestive overtones." According to this mindset, sexual materials in the workplace not only could create a "hostile" work environment, they automatically do. As the Assistant Chief Examiner in the State of Washington's Auditor Office puts it, even sexual material on a person's work-station computer that offends a coworker passing by "borders on a sexual harassment type of situation." In Robinson v. Jacksonville Shipyards (1991), a court enjoined workers--presumably just men--from reading any "sexually suggestive" materials at work. It's definition of forbidden materials is sweeping: "material will be presumed sexually suggestive if it depicts a person of either sex who is not fully clothed or in clothes that are not suited to or ordinarily accepted for the accomplishment of routine work in and around the shipyard and who is posed for the obvious purposes of displaying or drawing attention to private portions of his or her body" (qtd. in Browne 548 #395).
In a number of harassment cases, sexual jokes have been said to contribute to a hostile environment. As any "reasonable person" would acknowledge, sexual jokes are not equally offensive, nor do all imply a lack of respect for women or "hostility" to them. "Courts in harassment cases, however, almost never describe the jokes for which they are imposing liability," instead merely referring to them as "dirty jokes" and assuming that is the end of the inquiry (Browne 536). Courts apparently accept the debatable notion that sexual jokes are criminal simply because they "objectify" women as "sex objects" (as they often objectify men as well). This, according to Robin Lakoff, is not a sexual message but a discriminatory one: "When a man talks to a woman at work in bedroom terms, the man is saying, 'You don't belong in the office. You're a sexual object'" (USA Today, 10 October 1991). Kingsley Browne argues, however, that "there is no necessary contradiction in viewing one's colleague (or even one's subordinate) simultaneously as an attractive sexual being and a competent co-worker. Indeed, the societal ideal for marriage is that the parties in the marriage view each other as intellectual equals, as autonomous persons, and as desirable romantic partners" (491 #60).
"Gender-equity specialist" Sascha Ruegemer would seem to be on firm ground when she contends that "for an act to be considered sexual harassment, it must meet two conditions: it must be unwelcome and it must be of a sexual nature." But not so. "Sexual harassment" does not in fact have to involve anything "sexual." In Andrews v. City of Philadelphia (1990), the judge wrote that "the Supreme Court [in Vinson] in no way limited this concept to intimidation or ridicule of an explicitly sexual nature" (qtd. in Browne 487 #35).
Still, one might reasonably assume that "sexual harassment" at least has to involve something being explicitly said or done to somebody in particular. Not so! "Sometimes the assertion [of sexual harassment] goes beyond what the alleged harasser has said to what the harasser is thinking. Thus, plaintiffs in sexual harassment cases have relied on both the tone of voice and the look on a face" (Browne 496). And should something be explicitly said, it doesn't have to be said to anybody in particular. In State v. Human Rights Commission, a court determined that a supervisor's general references to women in "gender-specific" derogatory terms constituted "sexual harassment" even though the supervisor never directly expressed hostility or animosity towards the plaintiff herself. In other words, he was guilty of "sexual harassment" because he manifested "general disrespect" towards women in conversations he had with men (Browne 493).
In an intriguing case now unfolding at the University of New Hampshire, a student who overheard a conversation between a professor and another student filed suit for being "sexually harassed" even though the female student to whom the remarks were made found nothing objectionable in them (Richard Bernstein, "Guilty If Charged," The New York Review of Books, 13 January 1994). Even more surprisingly, some courts have even permitted harassment actions to proceed based in part upon speech that the plaintiff neither witnessed or overheard! (Browne 535). In the same case at the University of New Hampshire, another student filed a complaint against the professor for "sexually harassing" her only when she was told about his remarks about her by another student.
For a number of people, "sexual harassment" does not have to be sexual, does not have to be severe, does not have to be repeated, does not have to be physically threatening or even humiliating, does not have to be hostile, and does not have to be so abusive as to interfere with one's work. It can be any unwelcomed act or word that makes a person--read woman--uncomfortable. The word or deed need not be directed at her or even witnessed by her to be "sexually harassing." Obviously, we're no longer in "Kansas" anymore.
Most definitions come with examples of the sorts of acts or words that could be considered instances of "sexual harassment." The list provided by Montana State University is typical. As examples of "Physical Harassment" it mentions:
As examples of "Verbal Harassment" it lists:
Examples of "Non-verbal Harassment" are:
This list is hardly exhaustive. Other words and acts that have been mentioned as possibly constituting "sexual harassment" include: "sexist" comments; "humor and jokes about sex"; "remarks"; "undue" attention; "negative stereotyping"; giving a woman flowers; mooing, barking, or snorting; asking a woman for a date (especially after being rejected once); spreading rumors; inviting someone to one's home; commenting on sexual graffiti; referring to a female as a girl, doll, babe, or honey; blowing kisses or winking; intentionally standing too close to someone; lighting cigarettes and opening doors if one's been asked to stop; "exclusion" and "shunning"; inappropriate staring; or asking only one woman to lunch. A word on this crime. Acknowledging that men must be "extremely" careful lest their intentions be misunderstood and they be charged with sexual harassment, Dr. Bernice Saddler, Director of the Center for Women Policy Studies in Washington, advises a man who wants to continue a business discussion with a woman over lunch to take two women to lunch, thus averting any possible misunderstanding as to his intentions toward either of them.
We have traveled a considerable distance from the Supreme Court's conception of what constitutes "sexual harassment" when asking only one woman to lunch could be interpreted as a crime. Whistles, looks, a violation of proximics may make some uneasy, and may be boorish, but should such acts be criminal? Are we all ready to live in society where "facecrimes" and "copulatory gazes" bring punishment? Are these the sorts of things the Supreme Court had in mind when it talked about behavior so persistently obnoxious that any reasonable on-looker would immediately see that they created a hostile and abusive work environment and altered the terms of the victim's employment?
The definition of "sexual harassment" has been seriously expanded by these lists of examples intended to "clarify" the concept. These "examples" are being interpreted as defining--in and of themselves--what "sexual harassment" is. As a result, a single act in any one of these categories--a "leer," a "stare," a joke or gesture--is now equated with "sexual harassment."
Obviously, a definition this all-embracing inevitably calls into question the credibility of "sexual harassment" surveys and statistics. I understand I'm raising an emotional issue; these statistics are important in "demonstrating" that men are in fact oppressing women to an alarming degree. Thus, an ad for Academic and Workplace Sexual Harassment: A Resource Manual reads, "studies indicate that sexual harassment is at epidemic proportions in the academy and in the workplace...." Commenting on the statistics published in Hostile Hallways, Alice McKee, the president of the Center for Research on Women at Wellesley College, repeats the claim that "sexual harassment is an epidemic in the schools today" (The Christian Science Monitor, 2 June 1993). At a Take Back the Night march at Princeton in 1992 it was said that 88 percent of the school's female students had experienced some form of "sexual harassment" on campus (Roiphe 99). Judith L. Lichtman asserts that recent surveys report that "perhaps as many as 85% of American women have experienced sexual harassment on the job" (USA Today, 14 October 1993).
The "epidemic" of "sexual harassment" is virtually guaranteed when such things as sexual jokes, stares, looks, yells, whistles, "cornering," "scoping," "mockery," "sexist comments," "undue attention," "flowers," "tapes of love songs," and even "interrupting women" are used to define "sexual harassment." One of the most widely mentioned studies, Hostile Hallways, defined "sexual harassment" using fourteen categories, including "sexual comments" (whatever that means), jokes, gestures, looks, encountering sexual graffiti, spreading "sexual rumors," and calling someone gay or lesbian. As an editor at The Wall Street Journal wrote: "if using a four-Ietter word or staring at another kid is considered sexual harassment, the only surprise should be that the numbers are as low as they are" (7 June 1993).
But even unreliable statistics have their usefulness. Dramatic figures appearing to describe a plague, an emergency, justify the existence of a special bureaucracy to handle "sexual harassment" cases. They even justify special procedures and whatever actions the EO/AA officer should take.
Thanks to stunningly vacuous and subjective definitions and interpretations of "sexual harassment," we are indeed "clearly sunk in a marshland of never-ending offenses, where anything from a look or a laugh can be defined as harassment--and has been" ("Speech Codes & Censors," The Wall Street Journal, 10 June 1992). The next section will make clear that this is not paranoia.
So far I've been talking about definitions, guidelines, standards, and some legal and administrative interpretations. But laws gain their real meaning from their applications. Nothing will more dramatically illustrate the distended dimensions of the concept of "sexual harassment" than the following survey of some of the words and deeds that have actually been cited as instances of "sexual harassment."
When a colleague wouldn't move his legs to let New York State Assemblywoman Carlene Hill conveniently pass by, she charged him with "sexual harassment"; "If I don't speak up, then they won't realize it's wrong and there will be a new victim" (qtd. in Newsweek, 25 October 1993, 56). A group of women working at the Stroh Brewery sued the company claiming that its ad featuring the "Swedish Bikini Team" fostered a hostile environment that encouraged "sexual harassment" (Time, 25 November 1991). A TV personality settled a "sexual harassment" suit brought by a former employee who charged that he "attempted" to touch her (Newsweek, 28 October 1991, 33). Another man was charged with "sexual harassment" for "scaring women" by waving a "dead mouse" in their faces (Bozeman Daily Chronicle, 20 September 1992).
In one court case, a novelty "while-you-were-out" message pad that read "I want your body" was cited as contributing to a hostile work environment. A woman charged her employer and his wife with "sexual harassment" for giving her such novelty gifts as a "Mr. Peter Party Mold," a "Pecker Pop Top," a "Mouth Organ," a "sexy Hotdog," and nude male and female figurines. The alleged harasser's wife testified that these objects were given as jokes from the both of them with the belief that the plaintiff would enjoy them (Browne 494 #84).
In Tunis v. Corning Glass Works, the plaintiff complained to the plant manager about photographs of "naked or nearly naked women in sexually suggestive poses displayed on the wall," telling him that the EEOC had informed her that such displays were illegal. The manager removed every photograph in the workplace, even a postcard inside the cover of a maintenance employee's tool box (Browne 508). A judge in another case found particularly offensive a "cartoon posted in the firehouse depicting a woman firefighter at a men's urinal" (Browne 497). The court interpreted this as a negative image of sexual integration, not a positive symbol of female phallic empowerment. Although pin-ups and "girlie magazines" in the workplace have been cited in numerous "sexual harassment" claims, a non-sexual desk plaque declaring "Even male chauvinist pigs need love" was held to contribute to a hostile work environment (Browne 497). In another case, "leers" were in fact cited as causing a hostile work environment, and in another, the plaintiff claimed she was "sexually harassed" when the company president made "goo goo eyes" at her (Browne 496 #99). In a third case, the plaintiff accused her supervisor, a real estate agent, of sexually harassing her when he told her, "you should make your house work for you," which she interpreted as a suggestion that she should turn her house into a brothel (Browne 543 #378).
A waitress at Bette's Ocean View Diner in Berkeley was "appalled and shocked" when she saw a male customer reading Playboy in her work station. Arguing that Playboy was pornography and that pornography was "hate literature" and that "hate literature" was a "hate crime" against "women's health," the waitress claimed that the man, privately reading the magazine, was "sexually harassing" her (Nat Hentoff, The Village Voice, 7 January 1993). Apparently accepting the Bette-Diner syllogism, Los Angeles County has used "sexual harassment" policy to ban Playboy and other "sexually oriented magazines" from being read even on personal time during a 24-hour shift (Harpers, 17 December 1993). As Rich Palardy, Department Personnel Officer, explains, "sexually explicit material introduces the idea of sex in the workplace, and we could expect females to find that uncomfortable." In some cases, "sexual harassment" was found to occur when men carried such magazines "in their back pockets" (Browne 495).
Although some "sexual harassment" cases have involved the most loathsome and scurrilous obscenities (as in the Harris case), not all the speech found harassing by courts is sexually explicit or patently hostile or offensive. In a number of cases, an "intimidating" and "hostile" work environment was alleged when men used such terms as "honey," "dear," "baby," "sugar," "girl," "momma," and even "lady" (Browne 523 #248, 536 #334). In Delgado v. Lehman, a woman said she was harassed, in part, when her male supervisor "used the term 'woman' in a derogatory manner" (Browne 536 #334). In Andrews v. City of Philadelphia, the plaintiff said that the man harassing her "spoke to her in 'seductive tones'" (Browne 496 #96).
Several women have successfully sued would-be suitors for "sexually harassing" them even though the behaviors involved no threats, no hostility, no demands, and no abuse--they were simply unwelcome. One psychiatrist was stripped of his medical licence for sexually harassing a patient by giving her $200, flowers, a Valentine card, and an engagement ring. This behavior allegedly had a "devastating impact" on the woman. In another case, a pathetic attempt at romantic courtship by a fumbling admirer wound up in court, with the fumbler convicted of "sexual harassment." The man asked a co-worker out for a drink after work. The plaintiff declined but suggested that they have lunch the following week. When the man asked the plaintiff out for lunch the next week, she declined. The following week, he handed the plaintiff a note stating in part:
I know that you are worth knowing with or without sex.... Leaving aside the hassles and disasters of recent weeks, I have enjoyed you so much over these past few months. Watching you. Experiencing you from so far away. Admiring your style and elan.... Don't you think it odd that two people who have never even talked together alone are striking off such intense sparks.... I will [write] another letter in the near future.... I am obligated to you so much that if you want me to leave you alone I will.... If you want me to forget you entirely, I can not do that.
The Ninth Circuit Court held that the man's conduct "was sufficiently severe and pervasive to alter the conditions of [plaintiff's] employment and create an abusive working environment" (qtd. in Browne 496-97). The owner of an NHL team is being sued for "sexual harassment" (and hundreds of thousands of dollars) because he allegedly asked the television actor Richard Dean Anderson, who starred in the MacGyver series, to kiss a female employee to give her "a thrill."
The situation on campus is even more zany--as one might expect. A professor at the University of California-Santa Barbara made a facetious remark in class that women who pose for Penthouse should be called not "Pets" but "animal companions." Several female students filed a formal sexual harassment complaint against him, saying "maybe this will make people aware in other classes and make other faculty watch what they say" (qtd. in John Taylor, "Are You Politically Correct?", Newsweek, 21 January 1991). A professor at Montana State University was charged with "sexual harassment" for describing Scandinavians as "homy Normans," for telling students that they would get more out of reading Moby Dick "than playing with yourself," and for making "obscene gestures in class" (Bozeman Daily Chronicle, 24 September 1991).
A professor at Indiana University of Pennsylvania was charged with creating a hostile environment by a woman in his sociology class when he called homosexuality "a kind of biological abnormality" (the student is a lesbian). Students who distributed a flyer at the University of Toronto were charged with "sexual harassment" because the flyer said that "homosexuality is wrong because there are no healthy children produced from it" (The Globe and Mail, 6 January 1994).
A female TA who teaches human sexuality at the University of Nebraska was threatened with a "sexual harassment" charge when she said in class that it's important to put condoms on early in the sex act because men are like basketball players, "they dribble before they shoot." A male student, presumably a careful reader of Catharine MacKinnon, claimed that the woman had "objectified" the penis and created a hostile learning environment. Ms. Blake says that just the threat of a "sexual harassment" complaint has made her nervous about teaching. She says she feels "harassed" (join the club Ms. Blake; CHE, 16 March 1994).
An art professor at Vanderbilt University was charged with "unintentionally creating a sexually hostile academic environment" when he presented in class photographs by Robert Mapplethorpe and portraits of himself in the nude. Most of his students signed a petition asking Vanderbilt not to charge him and to re-examine its harassment policies. They acknowledged that they had been warned that the photos would be sexually explicit and were not required to attend if they thought they might be offended (National Review, 26 April 1993, 14).
At the University of Pittsburgh, a student exhibit depicting a naked woman drowning in a pool of semen, the painter's symbol for women victimized by masculine desire, was charged by an all-female student panel with being "sexual harassment" (Lingua Franca, September/October 1993, 27). At Pennsylvania State University, professor Nancy Stumhofer charged Francisco Goya (1746-1828) with "sexual harassment" and had his portrait "Naked Maja" removed from her classroom because it made her and female students "uncomfortable" (The Village Voice, 14 January 1992).
At Montana State University, a student art display that used, in part, photos of semi-nude women required the Affirmative Action Officer to make aesthetic distinctions that might tax the acumen of Kenneth Clark. Corlann Bush opined that the display was generally professional to the point where it became "unstructured." Then the explicit materials appeared to be an "unreasonable intrusion in an educational exhibit," included, as far as she was concerned, for titillation. "They didn't carry the context," Bush said. Speaking as if the line of "sexual harassment" were as plainly drawn as the stripes on a tennis court, Bush explained that "in one exhibit we crossed the line; one crossed the line; one section was reasonable, becoming unreasonable on the other side." At this precise point, Bush said, the educational potential of the display was lost, and the material created "an offensive environment under the Sexual Harassment Policy of Montana State University," which is, Bush adds, a more "stringent" version of the state's harassment policy (quotes taken from the article written by John Pettit, "Affirmative Action discusses Las Vegas exhibit," Exponent, 20 October 1992). As ACLU spokesperson Marjorie Heins points out, "there's a tendency to describe anything you don't like in a work of art as sexual harassment, so that it becomes a civil rights violation" (Lingua Franca, September/October 1993, 27).
At the University of Toronto a 60-year-old engineering professor was barred from the campus swimming pool for "sexually harassing" female swimmers by "leering" at them--while wearing a snorkel mask. A professor at the University of Miami was charged with sexual harassment for, among other things, occasionally "walking around with [his pants] unzipped" (CHE, 31 March 1993). At the University of Minnesota-Duluth, the History Club posted photos of History professors in off-beat poses. One prof posed as a Roman with a sword, and another posed as Davy Crockett, armed with a Colt pistol. The Affirmative Action Officer branded them "totally inappropriate" and claimed that they created a hostile work environment for women. When the Department head refused to remove the offending photos, she had campus police do it.
At Columbia, a male student who edited the alumnus magazine passed on to his female French professor an article his magazine had just published reporting the curious fact that the university possessed the preserved penis of Napoleon. The French professor was so "intimidated" by this "inappropriate" action that she could not continue teaching the course with him in class, and he was asked to leave by the Dean (Rex Roberts, "My Waterloo," Lingua Franca, November/December 1993, 42-47). A 30-year professor at the University of New Hampshire was charged with "sexual harassment" and suspended for a year without pay, when, in part, he illustrated the word "simile" by saying that belly dancing is like Jello with a vibrator under the plate. A female student said that everybody knew that a vibrator was a sexual aide, and thus the reference to it was vulgar, degrading, and offensive; the professor said he was simply referring to a massager. A professor of Scandinavian Literature at the University of Minnesota was accused of "sexual harassment" because he gave a deliberately "prurient" interpretation to a line of Finnish poetry (translated: "and he blew on the wind").
And a theology professor at the Chicago Theological Seminary has recently been convicted of "sexual harassment" for using an example from the Talmud that he has been using for many of his 34 years as a teacher. To illustrate the difference between how Judaism and Christianity view moral responsibility, he talked about a roofer who falls on a woman and they accidentally have sex. A female student complained that the story was "inappropriate" and that she was "offended" by the sexual content of the story. After he attended two hearings by the seminary's "sexual harassment" task force, the 63-year-old professor was placed on probation; the task force also distributed letters telling the seminary's 250 students and faculty that he had been punished and why. The panel also ordered Snyder to get therapy and advised him not to be alone with students or staff members (AP, 27 March 1994).
A student at Southern University charged that several administrators had "sexually harassed" him when they engaged in "innuendo" by telling him to "stay on top of the project because some students fall through the cracks" (CHE, 21 April 1993, A22). A professor at the University of Minnesota (again at Duluth!) was charged with "sexual harassment" by a female colleague because he frequently used the term "bloody," which she interpreted as an outrageous and offensive reference to her menstruation (Thomas J. Bieter, Attorney at Law, in a letter to Heterodoxy, February 1993). In a case now unfolding at the University of New Hampshire, the sexual harassment charges brought against a professor are based in part on a female student saying that when she and a male student went into the professor's office, she heard him using sentences with "sexual slants." "I don't remember the exact words. One out of every three sentences had a sexual slant." The male student who was with the complainant testified at a hearing that he heard nothing with a "sexual slant" (NYRB, 6 January 1994, 12).
At the University of Arizona, a female employee posted a phony "sex-harassment consent form" that invited people to check off the kinds of sexual interaction they would consent to ("eye-to-bust contact," "heavy breathing on neck," etc.). This went over like asking who put the pubic hair in the coke. The Affirmative Action Officer declared that the "consent form" violated federal law and university policy. When the Head of the department dismissed the prank as a "whimsical thing" aimed at "the out-of-control political correctness movement which has been sweeping this campus," he and his staff were ordered to attend "sexual harassment" workshops (Heterodoxy, CHE, 8 April 1992).
When the wife of a University of Washington professor accused of "sexual harassment" took out an ad that named the student making the accusation, the student sued the university for creating a "hostile environment by allowing the advertisement to be published"; she settled for $125,000 (CHE, 30 October 1991). A graduate student at the University of Nebraska was accused by his two female office mates of creating a "hostile work environment" by having on his desk a photograph of his wife in a bikini (CHE, 16 July 1993, A33). A professor at the University of Montana was accused of "sexual harassment" because he sat on his desk in a "sexy" way.
A professor at Newport University was accused of "sexual harassment" by a student who admitted that her sexual relationship with the man had been completely voluntary and that she had not been his student during the time they had a relationship. The student claimed, however, that when the teacher broke off the relationship, she endured "emotional trauma" that impeded her education. The teacher was fired (Eileen N. Wagner, "Fantasies of True Love in Academe," CHE, 26 May 1993, B1). A case that made national news involved a female teacher who threatened to charge a male student with sexual harassment for using the phrase "Dave Stud" in a paper she graded. Debbie Meizlish, the grader, wrote on the student's paper:
You are right. This is ludicrous & inappropriate & OFFENSIVE. This is completely inappropriate for a serious political science paper. It completely violates the standard of non-sexist writing. Professor Rosenstone has encouraged me to interpret this comment as an example of sexual harassment [my italics] and to take the appropriate formal steps. I have chosen not to do so in this instance. However, any future comments, in a paper, in a class or in any dealings w/me will be interpreted as sexual harassment and formal steps will be taken. Professor Rosenstone is aware of these comments--& is prepared to intervene. You are forewarned!
Talk about a "hostile" work environment! Thus threatened with "formal steps," the student shrewdly dropped the class ("Language Censors," an editorial in The Wall Street Journal, 5 January 1993). What is even more alarming about this incident is that Debra Cain, Director of the Sexual Assault Prevention and Awareness Center at University of Michigan, could not or would not judge whether the use of the phrase "Dave Stud" constituted "sexual harassment"! But according to Peter Bundarin, an attorney who specializes in sexual harassment cases, it is ludicrous to even think that this phrase in an academic paper could constitute a crime by ordinary legal canons. "In no way would I say that in normal [!] society, this is offensive." The stringent standards being employed by Rosenstone and Meizlish, Bundarin observes, are "ridiculous" (Campus Reports, December 1992).
Flushed with these successes, some women are going so far as to expand "sexual harassment" to include "anti-feminist harassment," and to define "anti-feminist harassment" as anything that is labeled "sexist" or that slights the ideology of "feminism." In other words, the threat of "sexual harassment" accusations is being used to enforce conformity to feminist orthodoxy (variously interpreted, of course). At the University of Victoria, the males in the Political Science Department were charged by an ad-hoc committee of female professors with creating a "hostile atmosphere" by making derogatory remarks about "feminists," criticizing in class "feminist literary analysis," and enunciating the thoughtcrime that there was "no distinction" between the experience of women and men. As a writer for the Globe and Mail explains, the women making the complaint would seem "to insist on feminist orthodoxy in the guise of a campaign against sexism and racism" (19 April 1993, A1).
And then there is the notorious case of the Department of Scandinavian Studies at the University of Minnesota. Recall that the "sexual harassment" code at U of M says that this crime "often consists of callous insensitivity to the experience of women." In other words, it transforms disputes about textual interpretations and methodological approaches into "sexual harassment" cases. In 1989, four graduate students, after extensive consultation with administrative officers, filed a formal complaint of "sexual harassment" against the Department, as well as individual complaints against each of its six full-time faculty. How had this Department--as a corporate entity!--"sexually harassed" these four women? Here's what they said:
Graduate students are never allowed to teach extension or summer language classes as is customary in other departments.
There is no sufficient organization of undergraduate teaching materials, policies, or methods.
Attempts on the part of graduate students to organize seminars needed for exam preparation are met with derision and hostility.
Visiting faculty have been misled as to the extent of their teaching duties during their tenure in the Department of Scandinavian Studies.
Graduate students are sent to the Department of Comparative Literature for training in literary theory. This we find inappropriate. When students then attempt to discuss literary theory with members of the Department of Scandinavian Studies, they are generally met with ridicule.
One professor was charged with "sexual harassment" because he was cool and unsupportive when a female student told him of some problems she was having and because he had not given sufficient attention to a draft of a paper she was writing. The same professor is alleged by another student to have identified rape and love in class. To the latter charge the professor responded that they were discussing a story by Isak Dinesen in which the protagonist falls in love with a woman he had raped. And two students accused him of ignoring their intentions in papers they wrote using ideas drawn from Michel Foucault. This hysteria resulted in a heterosexual women in the department being charged with "sexual harassment" for "allegedly unfair grading, but not sex." Seven months later, all charges against these "horny Normans" were dropped for lack of evidence, but not before the reputations of individual faculty members were seriously damaged and the very existence of the department jeopardized ("Salem in Minnesota," Barry R. Gross, Academic Questions 5.2, Spring 1992, 67-75). There is some evidence that the administration encouraged these charges as a pretext for closing down or merging this department for economic reasons.
These actual instances of alleged "sexual harassment" reveal how dangerously expansive the term has become and how irresponsibly it is being interpreted and applied. It has been evoked to brand as criminal everything from "leers," words like "honey," and pictorial masterpieces to the way faculty sit on desks and evaluate papers. Although some "Gotcha! feminists" may now delight that men are the victims, there are indications that canny and disgruntled students and faculty are figuring out how to use the term against women too, including some in-your-face lesbians like Teflon Jane Gallop (see Lingua Franca, January/February 1994, for a jaw-dropping account of just what lesbian feminists can get away with in the "cutting-edge" academies of the empire). As Al Neuharth wrote in USA Today, fuzzy definitions of sexual harassment "make all of us too susceptIble to intractable special interest groups or vindictive individuals, especially when they're spurred by slick or shyster lawyers" (18 October 1991).
Lynn Metzinger, Linda Nelson, and Sharon Mastropiero wrote in Newsweek that the issue of "sexual harassment" is so "out of control" that even "innocent people are being hurt by it" (16 November 1992). That means innocent men. As David Gates observed, "sexual harassment is an issue with no consensus, no clear rules--and lawsuits for guys who just don't get it" (Newsweek, 29 March 1993). But what might happen when men do get it? It could be argued that men are far less inclined to accuse women of "sexually-harassing" behavior not because women don't engage in it (I have been touched below the waist by female colleagues and had offensive male-bashing material handed to me) but because men are socially conditioned to interpret harassing behavior as merely flirtatious and flattering, even when they are the ones being harassed. When enough law suits and complaints din it into the heads of men that "leers" and butt-touching are criminal, perhaps they will no longer suffer from the "false consciousness" that has prevented them from complaining about anti-male slurs and stereotypes, and about female "objectification" of the male body. What might happen when more men file "sexual harassment" complaints against women? Will there be a renewed interest in rethinking what the term should mean and how broad it should be?
In Harris v. Forklift Inc., the Supreme Court determined that the work environment must be so "objectively" abusive and hostile that a "reasonable" person would have no trouble seeing it. Through this wording, the Court tried to prevent the concept of "sexual harassment" from becoming completely unmoored and engulfed by subjectivity. In this endeavor, the Supreme Court has probably failed. In the absence of accepted standards for demonstrating when "sexual harassment" has occurred, courts, administrators, Affirmative Action Officers, and "gender-equity specialists" have resorted to leaving the determination largely, and sometimes wholly, up to the accuser or complainant.
They have been encouraged in this by EEOC Guidelines and by several legal decisions in which the subjective perception of the plaintiff--in every case a woman--was given considerable force in determining whether or not "sexual harassment" had occurred. Although the EEOC guidelines state that a "bare assertion" of "sexual harassment...cannot stand without some factual support," they also state that "if the investigation exhausts all possibilities for obtaining corroborative evidence, but finds none, the Commission may make a cause finding based solely on a reasoned decision to credit the charging party's testimony." Some attorneys have argued that the subjective reactions of the plaintiff should be considered "determinative," and have urged "male judges" not to "substitute their perceptions of the balance of positive and negative messages the plaintiff was receiving" from her coworkers (qtd. in Browne 503 #150).
In Ellison v. Brady (1991), the Ninth Circuit Court of Appeals accelerated this development when it determined a case using a "reasonable woman" standard. The plaintiff, it held, need not establish that the defendant's conduct was unreasonable; she need only show that her reaction to it was not unreasonable. The court also noted with approval that the "reasonable woman" standard was always moving outward, was always expanding to criminalize more and more behavior. "Conduct considered harmless by many today may be considered discriminatory in the future. As the views of reasonable women change, so too does the Title VII standard of behavior" (qtd. in Browne 507). Eventually, the "reasonable woman" standard--which was not used by the Supreme Court in Harris v. Forklift, Inc.--may give way to an even more "sensitive" standard. Recently, a woman proposed that more acts would be found illegal if courts used an "abused" woman standard (Kathleen Gallinan, Globe and Mail, 7 May 1993, A19).
As Nat Hentoff has commented, "the First Amendment has been balkanized by gender.... With regards to sexual harassment charges, only one gender--female--determines the outcome in an increasing number of jurisdictions" (Free Speech for Me--But Not for Thee 166).
Out of court, subjectivity has been taken just about as far as it can go. As a result, "sexual harassment" embraces not only repeated and abusive actions that create a "hostile" or "humiliating" working environment, but--as all those cases I mentioned in the previous section testify--anything that a woman finds offensive--or merely uncomfortable or unwelcome. Lest this be seen as a "back-lash" caricature of things, I will quote what a number of "gender-equity specialists" have to say on this.
According to Karen Ball, "sexual harassment" is any behavior that a "woman" feels "makes for an uncomfortable work situation," including "remarks, innuendos, letters, flowers, or being asked out on dates" (AP, 10 October 1991). Another "gender-equity" specialist, Dr. Bernice Sandler, also asserts that anything that makes a woman "uncomfortable" is wrong. Claudia Withers, director of employment programs at the Women"s Legal Defense Fund, says that "when women perceive that things like 'honey' and 'sweetie' make them uncomfortable on the job, it's against the law" (my italics, in Browne 492 #63). Professor Dorothy Rubin (Trenton State College) believes that anything a woman perceives to have "explicit or implicit sexual connotation" is, "according to the guidelines," "sexual harassment" (USA Today, 15 October 1992). Nan Stein has written in USA Today that "the target of the harassment and the perpetrator do not have to agree about what is happening; sexual harassment is subjective. Nor do you have to get others, whether your peers or school officials, to agree with you" (18 May 1993, 11A). Rick Poland, a probate judge from Maine, also wrote in USA Today that "sexual harassment is largely a matter of perception. Legally, the test is how the person who was harassed perceives the behavior" (23 November 1992). A sign posted by the Women's Center at Princeton says "What constitutes sexual harassment or intimidating, hostile or offensive environment is to be defined by the person harassed and his/her [!] feelings of being threatened or compromised" (qtd. in Roiphe 91). Bernice Sandler simply declares that "sexual harassment is in the eye of the beholder" (Jonathan Penner, "Sexual Harassment and Common Sense," Heterodoxy 1.7, December 1992).
Although Absolute Subjectivity is not yet the official position on campuses, it almost is. The reigning mentality is to encourage female students to find "sexual harassment" in facecrimes, unnecessary touching, innuendos, and in "exclusion." And once they've found it, it is the official policy of "gender equity specialists" and other advocates to convince them they are right. Again, let's allow a "gender-equity specialist" to explain things. Dr. Bernice Sandler advises Affirmative Action officers to always counsel students to pursue complaints because down the line that student could come back and sue the EO/AA for blocking her complaint (Penner). Affirmative Action officers, in other words, should never counsel students to drop a complaint regardless of the facts of the matter.
And Ieading feminist thinkers on this issue, such as Nan Stein, contend that a woman who claims to have been harassed "deserves to be believed" (USA Today, 18 May 1993). At the University of Toronto, the "Sexual Harassment Officer" "is expected to act as advocate for anybody who feels offended" (Globe and Mail, 6 January 1994). At Princeton, counsellors tell students, "If you feel sexually harassed, then chances are you were" (Roiphe 91). At Antioch College, a student who claims she has been "sexually harassed" becomes officially known as the "survivor" and is assigned an "advocate" whose job it is to believe her claim and to foster belief in others (Martin Gottlieb, "Antioch College definitively correct," The Montana Standard, 21 February 1991). (Some female students even refer to themselves as "potential survivors" [Sarah Crichton, "Sexual Correctness," Newsweek, 25 October 1993, 55].) As a campus advocate at another school puts it, "if a person thinks she's been victimized, we're here to validate that experience" (qtd. in Bernstein, NYRB, 13 January 1994, 13). In other words, those responsible for impartially investigating claims of "sexual harassment" are predisposed by feminist ideology to believe the accuser. In an article entitled "Sexual harassment: a victim's guide" published in the Montana State University student paper, Corlann Bush, the Affirmative Action Officer at Montana State University, was paraphrased as saying that those who feel they have been sexually harassed or intimidated should talk to a friend as a way of "validating the feeling about being harassed."
This privileging of subjectivity simplifies, considerably, complex legal and moral issues. First, it makes irrelevant the issue of "intent." This is not understood by Carol Simpson Stern, who wishes to protect sensitive and empathetic male faculty members who may console weeping female students with a hug from being charged with "sexual harassment." Stern says that to determine if an act is "sexual harassment" one must determine how the act was "intended" (CHE, 10 March 1993). Wrong! In Ellison v. Brady (1991), the Ninth Circuit Court said that even "well-intentioned compliments" can count as "sexual harassment." As the court wrote, "state and federal laws prohIbiting racial and sexual harassment are wholly uninterested in the perpetrator's intent" (qtd. in Browne 486 #30). Males would be well advised to console female students by giving them Kleenex, not hugs or rubs or even taps.
Second, placing "sexual harassment" in the eye of the beholder makes irrelevant the question of whether or not an action has been wrongly interpreted or "misconstrued." An action is what a woman construes it to be. If a woman thinks she has been "sexually harassed," then she has been, even if she has come to think this months or years after the fact. A female student accused a professor of "sexual harassment" when she overheard him using sentences with "sexual slants." The student said, "I don't remember the exact words. One out of every three sentences had a sexual slant." The person to whom the professor was talking did not complain, and the male student who was with the woman who overheard these allegedly sexual statements testified at a hearing that he heard nothing with a "sexual slant." Yet this incident was labeled by the Affirmative Action officer as a "finding of fact." The same hapless professor was also accused by another student of "sexual harassment" when he referred to a vibrator. In the hearing, the student said to him, "You know that a vibrator is a sex toy." "I do?" the professor responded. "I thought it was a massager." As Richard Bernstein puts it, "In what they call their 'findings of fact,' the two hearing panels merely accept the women's interpretations of Silva's words and actions as though the mere fact that they felt the way they did was proof of harassment" ("Guilty if Charged," NYRB, 13 January 1994).
Third, the privileging of subjectivity means that a "sexual harassment" charge is not a matter of votes and can be triggered by the most "sensitive" person in the environment. When a highly popular professor at Virginia Polytechnic Institute was accused of "sexual harassment" for some jokes he made in class, he passed out a form asking his almost 300 hundred students if they were afraid to ask questions and if he should change his jocular teaching style to prevent anyone from taking offense. Three women answered "yes" to both questions--out of 280. If almost 300 students have no complaint but three do, is this evidence of an offensive and hostile learning environment? Yes, according to the Affirmative Action Officer, who wrote: "If one student is afraid to ask a question, that's one too many" (Henry H. Bauer, "Lessons from the Mandelstamm Case," Academic Questions 5.2, Spring 1992, 58). The professor also had 490 students who rated him excellent at coming to class on time, but two who rated him poor or very poor, yet no one took these two votes as sign that he should have been reprimanded for tardiness.
Increasingly, "sexual harassment" is what a woman says it is, and her subjective response constitutes "reality," and, as we shall see in the next section, "power."
I cannot imagine "it's-our-turn-now" feminists wanting a narrower or clearer definition of "sexual harassment." It's not just that a vague and constantly expanding definition is thought to afford more comprehensive protection to women. It's that a vague concept is a powerful tool for intimidating men. As Robert Hughes recognizes, "to be vulnerable is to be invincible."
Many commentators--mostly worried men--have pointed out that vague definitions of "sexual harassment" and the power of women to subjectively gauge when it has occurred make it almost impossible for a man to know beforehand what constitutes "sexual harassment"--a frightening situation. As one male attorney writes, "there's a basic paranoia of anything that could be remotely construed as sexual harassment" (The Weekly [Sarasota, FL.], 6 January 1993). Great! say some feminists. It's about time that himbos experienced the fear that women feel all the time.
Ellen Goodman was publicly delighted that shifting definitions and subjective standards of "sexual harassment" would enable women to engage in a little compensatory intimidation of men. "If men are suddenly walking a fine line and searching for a solid one, isn't that what women have always done?" If women had to "learn to negotiate tricky territory," why shouldn't men? If women were once expected to "handle it," well now "men are being told to 'handle it.'" Thanks to the subjective nature of this offense, Goodman argues, men will learn to "read women," or be sued:
We are insisting that they learn the clues, the body language, the verbal signs that differ with every human interaction. They will have to receive as well as deliver messages. To know what she heard, not just what he meant. That's not such a bad thing.... Now women are trying to balance the lopsidedness of this change. They are saying, Wait a minute, how about trying it my way? (28 October 1991).
In that catalogue of cases I provided earlier there are a number of instances where women were using "sexual harassment" regulations to show men who has the power. What else was Debbie Meizlish doing when she went on and on about the phrase "Dave Stud" in a student paper, warning the hapless guy that "any future comments, in a paper, in a class, or in any dealings w/me, will be interpreted as sexual harassment and formal steps will be taken"? Not just any future uses of "Dave Stud," mind you, but "any future comments...will be interpreted" as a crime by her. And what about Nancy Stumhofer's sudden outrage over Goya's portrait of a nude? The administration tried everything to placate her, short of removing the painting. It offered to change her classroom--no good. It offered to rehang the painting on the opposite wall, where it would no longer be facing her students--no good. It offered to cover the painting when she used the classroom--no good. It offered to turn it to the wall when she used the classroom--no good. The Affirmative Action Officer even suggested placing next to it a painting of nude male, for some compensatory "sexual harassment," but no good. Professor Stumhofer was going to show everybody--especially campus males and Goya--who was now the boss thanks to "sexual harassment" codes.
Another exercise of power occurred at Simon's Rock College, when a group of sixteen female students--calling themselves the Defense Guard--visited the office of a professor and collectively accused him of having "sexually harassed" a student. The accusation included chants and ended with the refrain "it will stop." During the performance, the students allegedly ignored the professor's requests for specifics about the incident or the identity of the victim. Leaving the shaken professor in his office, they moved on to repeat the ritual with three other professors. They then went to the local media where the story received significant play, where it was dubbed "Sex for Grades." The names of the professors quickly became known, and the community generally assumed that the professors were guilty. But a committee of administrators, faculty, and students found no wrong doing (Lingua Franca, 1991).
When the ACLU national board took the surprising position that any speech that offends a "reasonable woman," regardless of severity, should be punishable under the law, ACLU attorney Nancy Gertner gloated: "We will dictate the workplace mores of the 1990s. It will be incredibly traumatic" (The Wall Street Journal, 6 August 1993, A7).
As Scott Kuehl writes, "feminists know exactly what they want. What they want, obviously, is power.... Far from reviving the mores and customs of Victorian England, or even those of 1950's America, feminists want to 'empower' women and girls by giving them, as Neil Gilbert says, 'complete control in physical intimacies between the sexes' (Commentary, 8 January 1994). Other women want to use "sexual harassment" to effect "a thorough overhaul of desire." For Professor Sandra Lee Bartky, "the relations of domination [that] perpetuate the patriarchy" must be changed so that the Rhett Butlers that so fascinate susceptible and suggestible women are de-eroticized." As Bartky insists, "feminist consciousness is consciousness of victimization...to come to see oneself as a victim." This is crucial for the success of women, of course, because in victimhood lies invincibility.
The power to be found in "sexual harassment" charges is provocatively explored by David Mamet in Oleanna (1993). Carol, a college undergrad, visits her fortyish professor, John, in a desperate effort to avoid flunking his course. Carol confesses bewilderment. John reassures her that she's "not stupid," talks about his own youthful doubts, puts down higher education as "warehousing the young." He tells an academic risque joke, offers to change her grade, promises to help her "start over." In Act II all hell breaks loose. Carol, the pathetic self-doubter, has been empowered by a consciousness-raising feminist group to interpret everything John said to her as "sexual harassment." His compliments ("Don't you look fetching") she sees as sexist put-downs coming from a priggish patriarch. She interprets his putting her hand on her shoulder as "paternal prerogatives" amounting to "rape," because it "feels like rape."
John, up for tenure, is now the pathetic figure, pleading with her to withdraw her charges. As Jack Kroll has observed, "What's truly Kafkaesque is not these accusations but John's shaken sense, through his helpless rage, that he may harbor a guilt he's never examined" (Newsweek, 9 November 1992, 65). When she overhears him on the phone call his wife "baby," she says, with the imperious tone of a commissar, "you must never call your wife 'baby' again. It offends me."
Not surprising, that same imperious tone can be heard in the voice of that very real student who told Professor Silva, "I don't want you to use the word vibrator in class ever again." She was offended, too. A male sophomore at Brown University complains, "women have all the power here on sexual conduct.... It's very dangerous for us" (qtd. in Newsweek, 25 October 1993, 56). Finally, males are "getting it," in both senses.
It should be clear by now that efforts to combat "sexual harassment," especially on campus, have seriously curtailed forms of expression protected by the First Amendment. When professors who do not toe an ideological line about affirmative action, feminist literary criticism, or homosexuality can be accused of "sexual harassment," all professors are in danger. "In terms of long-term damage to free speech," writes Nat Hentoff, "I'm hard pressed to think of an issue more important today. It's frightening" (USA Today, 20 November 1991).
Ever since courts ruled that employers can limit their liability if they have tried to root "sexually harassing" materials from the workplace, employers have aggressively restricted the free speech of their employees. The vaguer the definition of "sexual harassment," the more likely employers will be to prohibit any expression that could possibly be viewed as offensive to the most thin-skinned woman on the payroll--not just pin-ups of nude women and such widely read and mainstream publications as Playboy and Playgirl, but even "sexist remarks," and such innocuous (if at times condescending) words as "honey," "babe," and "female" (if said in the "wrong" tone of voice). In other words, "sexual harassment" laws have forced employers to do what the government should not and legally cannot do: punish offensive speech. As Kingsley Browne explains:
The impulse to censor is a powerful one, and it has been given free reign under Title VII. Not only has "targeted vilification" been regulated, but much less harmful and less invidiously motivated expression has been restricted as well. That so much speech has been stifled without substantial outcry is in large measure a reflection of the powerful current consensus against racism and sexism. But it is precisely when a powerful consensus exists that the censorial impulse is most dangerous and, ironically, least necessary. The primary risk of censorship in our society today is not from a government fearful of challenge, but from majorities seeking to establish an orthodoxy for all society. When the orthodoxy is one of "equality," that risk is at its highest. (547)
Considering the range of words and acts held to be instances of "sexual harassment," it would not be an exaggeration to say that "sexual harassment" laws have provoked the most successful assault on free speech since the Nuremberg laws.
But these prohIbitions go further than just trying to control expression that might embarrass, shock, or otherwise "injure" women with delicate sensibilities. Consider the case of the "explicit" pictures on the inside of a toolbox or the case of the employee reading Playboy in the workplace on his own time and in private. The real motive for prohibiting these and similar activities is that women are offended by what the male employee may be thinking while looking at the pictures (see Browne 548).
On campus, "sexual harassment" codes have been used to suppress art and classroom materials that not even conservative Christians have been able to get at. Those claiming "sexual harassment" can censor just about anything they want. Remember the professor who got into trouble for saying that homosexuality was a biological abnormality? At some schools, such as VIrginia Polytechnic, "literature" is identified as something that can create a "sexually harassing" hostile environment (Bauer, Academic Questions 5.2, Spring 1992, 63). At Pennsylvania State University, a student leader of a campus feminist group argued that it was okay to isolate Goya's "Naked Maja" because in the past painting of nudes served the same function that pornography does--"they didn't have Playboy in those days." As Dorothy Rabinowitz writes:
Were such an utterance, to say nothing of the English professor's pronouncements, to appear in a work of fiction, it would of course be dismissed as wildly improbable exaggeration. But no extreme of lunacy or repression is improbable on the campuses, as ["Campus Culture Wars"] shows.... (Wall Street Journal, 20 September 1993)
Across the country, EO/AA administrators are gaining more and more power over what materials and statements can be presented in the classroom. Eventually, of course, conservatives and Christians will catch on and accuse sexually explicit works of "sexual harassing" their sons and daughters, but by that time, there may not be much left to say.
Concerned about violations of academic freedom, Carol Simpson Stern, past president of the American Association of University Professors, reminds us:
Freedom of inquiry and the right to discuss any idea, no matter how hateful, are essential conditions of academic freedom. Probably the best way to end this society's sexism is not to stifle its expression but to stimulate discussion about it, answering bad speech with more speech. (Chronicle of Higher Education, 10 March 1993, B1)
Marjorie Heins believes that the use of "sexual harassment" to justify unconstitutional censorship "may sound helpful to women but really ends up hurting the cause of female liberation" (Sex, Sin, and Censorship 114).
It is far from clear whether the views of Stern, Heins, and Feminists for Free Speech will prevail. In many feminist circles, free speech and academic freedom are contemptuously dismissed as masculine constructs that serve the interests of "patriarchy." Cynthia Bowman, a law professor at Northwestern University, argues that catcalls from construction workers should be seen as "assaultive" speech that merits immediate arrest regardless of the First Amendment (Newsweek, 25 October 1993, 52). The following passage written by Barbara White, Associate Professor of Women's Studies and Coordinator of the Women's Studies Program at the University of New Hampshire, makes clear just how contemptuously some women now regard the very freedoms that permit them to "voice" their contempt for free speech in the first place:
The AAUP, indeed, academia itself, has traditionally been dominated by white heterosexual men and the First Amendment and Academic Freedom (I'll call them FAF) have traditionally protected the rights of white heterosexual men. Most of us are silenced by existing social conditions before we get the power to speak out in any way where FAF might protect us. So forgive us if we don't get all teary-eyed about FAF. Perhaps to you it's sacrosanct as the Flag or the national anthem; to us, strict construction of the First Amendment is just another yoke around our necks. (qtd. in Bernstein NYRB, 13 January 1994; see also 24 March 1994, 60)
An eccentric view? Hardly. Feminist legal scholars gathered at a conference in March 1993 "to forge a strategy to overcome the reluctance of federal courts to limit First Amendment rights" (Jonathan Rauch, The Wall Street Journal, 13 October 1993).
If these "gender-equity specialists" and anti-FAF-feminists prevail, the last great bastion of First-Amendment freedom may be the men's room.
Due process has taken the same kind of beating that free speech has, especially on campuses, where "gender-equity" specialists wield considerable power and where rigorous procedural and evidentiary rules that govern investigations off campus rarely exist.
Safeguarding due process is critical because the campaign against "sexual harassment" is taking on aspects of a religious movement, with ardent true believers creating a theology where Evil and Goodness is evident to those with the faith. Take the notion held in advanced feminist circles that women do not lie about being raped or "sexually harassed"--never lie, not even out of personal malice, or from mental instability or derangement. This intellectually fraudulent effort to make a prima facie case against males accused of "sexual harassment" is gaining acceptance, as the section entitled "The Oppression of Subjectivity" suggested.
Yet, there are still some "reasonable women" who admit that charges of sexual harassment may be brought, as Dorothy Rubin puts it, "to gain an advantage or special consideration or even to settle a real or imagined grievance." Billie Wright Dziech, author of The Lecherous Professor: Sexual Harassment on Campus (1984; second edition, 1990), also admits that the "brutal truth is that the most believable accusers and the most eloquent of the accused may well be lying. We cannot base decisions about sexual harassment on subjective impressions alone" (CHE, 13 November 1991). Donald Stadtner, Associate Professor of Art History at the University of Texas (Austin), warns that "harassment promises to be the litigation of the '90s, and academics must prepare themselves for a number of false charges, many of which might involve students used as pawns in faculty politics." Eileen N. Wagner suggests that in some cases with which she is personally familiar, "teachers terminated for never-before-questioned-albeit-risky behavior were out of favor for other reasons as well. They must have been tenured and unwilling to retire, or otherwise out of sync with institutional policies.... A sexual harassment charge that will stick could become a ready-made answer for unseating that entrenched faculty member" (CHE, 26 May 1993, B1). In his analysis of the bizarre "sexual harassment" charges made against the entire Department of Scandinavian Studies at the University of Minnesota (to be discussed in more detail below), Barry R. Gross can't "suppress the suspicion" that the administration may have encouraged female graduate students to make en bloc "sexual harassment" charge in order to strengthen its efforts to "cut [the Department] back financially" (Academic Questions, Spring 1992, 69).
And rigorous due-process safeguards are made even more urgent by the anti-male ideology rife on many campuses, as well as in the wider culture (I must leave the reasons for this antipathy unexplored). "The assumption is that men are fair game. Any man insulting is retributive: a payback for the years, the centuries, of male domination and oppression. And for the continuing Awfulness of Men" (Lance Morrow, "Men: Are They Really That Bad?" Time, 14 February 1994, 56). At a recent conference entitled "Rage Across the Disciplines," one woman on a panel entitled "Violence Without Phalluses: Gender Rage in Society" said she views man-killing "as a method for self-assertion for the modern feminist women." A feminist has explained that although "no feminist is advocating emasculation as the weapon of first choice," Lorena Bobbitt's "sociosexual vigilantism" is a symbol of "innovative resistance against gender oppression everywhere" (qtd. in Mike Royko, 25 January 1994). Barbara Ehrenreich has noted many women tired of being "victims" are "eager to see women fight back by whatever means necessary" (Time, 24 January 1992, 74).
Feminist ideology increasingly maintains that it is not just a "few" or "some" men who are sexist pigs and oppressors, but all men, made so by biology and social conditioning. Thus, the names of males can be selected at random from a campus directory and posted with this message: "These Men Are Potential Rapists." The Canadian Panel on Violence Against Women declared that the "very structure" of society "condones male violence" and that "all men, whether or not they are violent, derive substantial benefit from its institutionalization" (in "A presumption of guilt," The Globe and Mail, 16 October 1993, D5). In other words, all men are guilty--no matter how well behaved. This version of collective guilt is a mirror form of misogyny, and just as contemptible. Should a man make a miscue, such as raise his voice to a woman or "leer" at her, this act is now said to be on a "continuum of violence" that ends in homicide. According to this logic, there is no real moral difference between whistling at a passing woman and raping her, for whistling will eventually lead to more horrendous forms of oppression. Even apparently trivial incidences of "sexual harassment," then, must be dealt with harshly.
Given all this, one would hope that those who oversee the investigation of "sexual harassment" charges would have a strong commitment to due process and fair play (USA Today, 15 October 1992). Unfortunately, that is not always the case. "Sexual harassment" is usually the bailiwick of mid-Ievel administrators with meager academic experience and a strong commitment to advancing women's issues. EO/AA personnel tend to be, as Henry Bauer words it, "social reformers and sometimes ideologues," with the "rectification of social injustice" their raison d'être (Academic Questions 5.2, Spring 1992, 62).
These administrators usually play a major role in not only drawing up "sexual harassment" regulations, but in interpreting them, considering complaints, investigating charges, administering hearings, and determining guilt and penalties. Sometimes, one and the same person performs all of these functions and, in addition, is committed to encouraging students and others to bring charges. Many are ideologically and even formally bound to believe the accuser and to convince others to believe her, too. On some campuses, the Affirmative Action Office can collect information about a faculty member even without a written charge, soliciting complaints in an effort to discover "patterns" of "intimidation" or "hostility."
Some "gender equity specialists" will go to questionable lengths to get evidence against colleagues and employees. At one school, a female colleague of a male professor accused of "sexual harassment" intimated that she would give special consideration to any student who could dig up additional dirt against him. At Bennington, one female administrator, in an effort to get evidence that a professor might be engaging in "sexual harassment," hid a tape recorder on a (male) student whom the (male) professor had invited out to dinner. The recording wasn't clear enough to be used as evidence (Lingua Franca, November/December 1993).
How committed some feminists are to "equity" can be inferred from the blithe way in which Catherine Comins, Assistant Dean of Students at Vassar, dismissed the wrong done to two male students falsely accused of rape: "they have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration that culminates in their understanding what they must have done to upset a given woman." In other words, even false charges help women by making men think about what they could have been guilty of but weren't--this time.
Given this mindset, it's no wonder that, according to the computations of the American Association of University Professors, "the due-process rights of professors accused of sexual harassment have been violated in a 'disturbing number' of recent cases" (CHE, 10 July 1991). Even "a growing number of students complain that campus judicial systems are strongholds of political correctness. Students charged with such offenses as date rape and racial or sexual harassment, they say, are considered guilty until proved innocent" (Christopher Shea, "Eye on the Judicial Process," CHE, 9 February 1994, A36).
According to Mary Gray, disciplinary proceedings involving charges of "sexual harassment" against male faculty members "frequently are not subject to the protections afforded faculty members charged with other offenses" ("Sexual Harassment: What Colleges Can Learn from the Thomas Case," CHE, 7 November 1991). At many schools, including Montana State University, charges of "sexual harassment" are not handled, according to AAUP recommendations, by a faculty committee, but by the EO/AA Office. In some instances, those accused of "sexual harassment" are not afforded the "right" to question witnesses or to have legal assistance though they are subjected to "intense questioning and cross-examination" by university administrators and even attorneys acting as the prosecution (Mary Gray). At Southwest Missouri University, a professor had evidence gathered against him but he was never interviewed during the course of the formal investigation, and he first saw the evidence at a formal hearing where he was not allowed to have an attorney (CHE, 16 March 1994, A17).
At the University of Minnesota, the EO/AA officer processed student complaints against the Scandinavian Studies department as a formal complaint of "sexual harassment" before evaluating the evidence and determining that the charges fit under the University's harassment code. Through her actions, it was the University, not the students, that pressed charges. Thus, the University's full power and reputation were put behind charges that no one in the administration had investigated (Academic Questions, Spring 1992, 71).
In addition, the EO/AA officer had all four complaining students sign each complaint against every instructor--"even though not every complainant had done course work for or had other contact with all six core faculty." Some faculty who were charged did not even know who some of the complainants were. One professor, who had been on leave the preceding year, knew only one of the four students who had signed the complaint against him. By four signing each complaint, it allowed the complainants and the EO/AA Office to say that four women alleged "sexual harassment" against a given professor, making their case seem much more serious than it was.
Moreover, during a seven-month investigation, the EO/AA officer encouraged the complainants to write, on their attorney's stationery, to all former graduate students to inform them of the en bloc complaint against the Department and to request further accusations. Eventually, all the charges were dropped.
Due process gets short shrift because male administrators are terrified of being seen as "soft" on harassment. Administrators at VIrginia Polytechnic refused to view videotapes of a professor's classes because if they had, the evidence might have convinced them that the allegations were unproved, and no administrator wants to tell a woman, or an EO/AA officer, that a charge of "sexual harassment" is unjustified. When an administrator at MIT filed a "sexual harassment" complaint against a female employee, the University did not investigate it, but when she filed a counter-complaint, the University asked him to resign, though he was never formally charged with anything (CHE, 16 March 1994, 18).
And, in an effort to avoid negative publicity and mitigate damages, universities staring down the barrels of a federal lawsuit with a price tag that could conceivably reach into the hundreds of thousands of dollars are wont to leap to judgment and fire professors who are later found not guilty of "sexual harassment" (Carol Simpson Stern, CHE, 10 March 1993, B3). The University of Houston fired a tenured professor after he and a male student filed "sexual harassment" complaints against each other, even though two investigative committees, including a faculty grievance panel, found no evidence of harassment and recommended against firing. After the Texas Faculty Association, an advocacy group for professors in the state, threatened to sue, the professor was reinstated.
A professor at the University of Washington was fired after being charged with "sexual harassment." When a Faculty Adjudication Committee ruled unanimously that he was not guilty, he was hired back. But his fight to clear his name cost him his life savings. The woman who brought the unsuccessful complaint was given $125,000, plus lawyers' fees (CHE, 27 May 1992). Even though a professor at VPI was found not guilty of "sexual harassment," the EO/AA Office recommended that the professor attend a sensitivity workshop and write apologies to each of his students for his role in creating an "emotional situation." One wonders what would have happened had he been found guilty (Academic Questions, Spring 1992, 60).
In 1991, a District Court judge ruled that Montana State University violated the due-process rights of a professor accused of "sexual harassment" when it failed to follow its own rules of procedure for such complaints. After receiving a complaint against the teacher, the Affirmative Action Office went on a fishing expedition to find a "pattern," interviewing the professor's former students and other faculty members. But the EO/AA office was unable to explain to the judge its rationale for choosing those interviewed. In addition, the professor was not given the opportunity to respond to the additional complaints before the Affirmative Action Officer issued a preliminary report that found the professor guilty of "sexual intimidation." Although the professor received a copy of the report, two pages of "confidential recommendations," including that future positive reviews be based on "his ability to demonstrate significant improvement in his teaching," were omitted from his copy. Those same two pages were again omitted after the court ordered MSU to turn over all notes and reports on the investigation. After the report was issued, the Affirmative Action Officer did not conduct a "conciliation meeting," thus violating MSU's grievance procedures. Moreover, the investigation conducted by the Affirmative Action Officer employed "sexual harassment" guidelines that were not in effect at the time of the complaint! Since this decision, the Affirmative Action Officer has reassured us that the "sexual harassment" policy at MSU has "several protections of due process, so that accused harassers are not subjected to unfair attacks by accusers." Happily for us all, the Affirmative Action Officer has also determined that a university should be a place where "we're allowed to make mistakes" (The Exponent, 20 October 1992).
As previously noted at Christopher Newport University, a male teacher was fired for "sexual harassment" even though the complaining student admitted that her sexual relationship with the professor had been entirely consensual and that she had not been his student for the duration of the relationship. However, she complained that her education was harmed when the teacher broke off the relationship, causing her emotional trauma. Even though his attorney argued that the facts did not fit any accepted definition of sexual harassment, the teacher was fired (Eileen N. Wagner, "Fantasies of True Love in the Academy," CHE, 26 May 1993, B1).
At many schools, charges of "sexual harassment" are allowed to be made long after the alleged offenses, when the memories of the parties have faded, their motives have changed, and evidence has been lost. A professor at the University of Minnesota was accused of "sexual harassment" for something he said to a female student four years earlier, during a semester when he was on leave (Academic Questions, Spring 1992, 70).
There have been several occurrences in which individual faculty and even whole departments have been publicly but anonymously attacked for engaging in "sexual harassment" even though no specific charges were ever filed. At the University of Victoria, for instance, a report by an ad hoc committee of women accused the Political Science Department of sexism toward women students in class and male professors in the Department of making sexual advances to women students. All eight tenured male professors issued an ultimatum demanding that the committee either repudiate what they called "utterly false statements" or turn over evidence of sexual misconduct to university authorities. A number of female students issued their own statement defending the male professors (The Toronto Globe and Mail, 19 April 1993, A1). Predictably, such public blanket accusations are never viewed as creating a "hostile work environment" for men.
In some instances, collective penalties have been imposed on entire academic departments and groups of students for the actions, not always proven, of a few individuals. At one prestigious private university, every student, faculty member, and staff member was ordered to attend a sensitivity-training seminar on "sexual harassment" because a federal agency found fault with the university's judgment in a case involving a single alleged harasser. Imposing penalties on a whole group for actions committed by one or a few violates basic concepts of equity and likely arouses resistance against efforts to combat genuine sexual harassment.
Michael Greve, director of the Center for Individual Rights in Washington, says that "many untenured professors or instructors take these charges lying down. They try to settle them behind closed doors because they are humiliating." But a recent article in The Chronicle of Higher Education observes that more and more male professors accused of sexual harassment are not taking the deals offered by the EO/AA Office but are fighting back to clear their names. Theodore Hirschfield, Assistant Professor of English at Southeast Missouri State University, refused to take the punishment offered by the EO/AA Office--a month without pay and sensitivity training at his own expense--and has sued the University for $2.5 million for violating his freedom of speech and academic freedom. In January, the University of Houston settled a multi-million dollar suit filed by a professor who had been accused of "sexual harassment," paying him $200,000. Most recently, Theology professor Graydon Snyder, who was punished for "sexually harassing" a woman when he told a story from the Talmud, has sued the Chicago Theological Seminary for violating his academic and constitutional rights. "If I told a dirty story or made sexual advances," Snyder says, "I could understand. But it never occurred to me I could have a grievance lodged against me." He hopes his lawsuit will keep up pressure on courts to address the conflict between free speech and sexual harassment. Deborah Ellis, legal director of the National Organization of Women's Legal Defense Fund in New York City, said that the woman's complaint against Snyder would probably have been thrown out of court if she had filed legal charges. "Conduct that is offensive is not sufficient to make out a claim of sexual harassment" (AP, 27 March 1994).
More plaintiffs say they chose to fight back because "they were unwilling to succumb to policies that breached their rights to free speech and due process" (CHE, 16 March 1994). The president of he AAUP, which now hears from about three professors a week who have been accused of sexual harassment, says, "There's little doubt in my mind that much of this has gotten out of control." A professor involved in the Silva case concludes, "even the good people can't see clearly anymore." Because of the concerns this section as surveyed, the AAUP is rethinking a statement on sexual harassment that it issued in 1990.
As Kate Fillon writes in the Toronto Globe and Mail, the guilty-until-proved-innocent approach to those accused of sexual harassment indelibly stains the reputations of people whether or not they've done anything wrong. "This seems more scary to some of us than a cinematic psychopath who wears a hockey mask and stalks victims on Halloween" (14 October 1993, A13).
In doing research for this article, I came across many unsettling descriptions of women who were treated in the most unimaginably vile ways just because they were women. There's the case of Patricia Swanson (USA Today, 14 October 1991) who worked for a man who at various times appeared naked in her office, grabbed her thighs, and humiliated her in front of colleagues with such comments as, "have you ever seen such big boobs?" And the case of Elizabeth Reese, a self-possessed young professional woman who was greeted by her superior with these words: "Elizabeth, do you fuck for the firm?" From then on, this man persistently told her that she should prostitute herself for business, and then told others that she had. His incessant, lewd inquiries into her sex life and his insinuations finally stalled her career in marketing.
And there's the case of the three women who worked for Gus Construction Company. Soon after they started to work on the construction crew, some of the men began to refer to them as the "fucking flag girls." They nicknamed one of the women "Herpes" after she developed an allergy reaction to the sun. They wrote "Cavern Cunt" and "Blond Bitch" in the dust on another woman's car. They repeatedly asked the third if she "wanted to fuck," and asked her and her friend if they wanted to, as the court record phrases it, "engage in oral sex with them." Besides dishing out this verbal abuse, some of the men felt the women up, reaching out of the windows and rubbing their hands down the women's thighs and breasts. One male crew member held one of the women up to a cab window so that other men could touch her. These men also frequently pulled down their pants and "mooned" the women while they were working. They also flashed obscene pictures of naked couples engaged in oral sex at the women. A male crew member even urinated in one woman's water bottle. Several urinated in another's gas tank, causing her car to malfunction. When the women would relieve themselves in the ditch, male crew members would peer at them through surveying equipment (Browne 490 #57).
These instances of sexual harassment should turn the stomachs of all people committed to tolerance, fair play, and human self-development They should be illegal, as should quid pro quo harassment, and unwanted sexual touching. But as this piece has tried to show, the effort to outlaw "hostile-environment sexual harassment" is posing all kinds of problems. Many people, thinking they are helping the cause of women in the workplace and females on campus, have expanded the definition of hostile environment to include just about anything that the most sensitive, delicate, vulnerable or hair-triggered woman finds "offensive," "unwelcome," or "uncomfortable." I, and a growing number of others, both men and women, are coming to believe that it does not help the cause of women (or anybody who's being bullied) to obliterate the distinction between "reckless eyeballing," a charge that used to get black men lynched, and rape. When a pat on the arm, a look, a joke that a man could tell his mother, the way one sits on a desk, a photograph of one's clad wife in a bathing suit, a legitimately debatable scholarly opinion, a reproduction of a classic portrait of a nude, a six-year-old boy kissing a female classmate on the head after she returned to school (an act the principal said could "be interpreted as sexual harassment"), and all the other items I've mentioned in this essay, can be construed as criminal, the crucial issue of sexual harassment is not made more urgent but is disastrously trivialized. Not by men, mind you, but by the very people who want men to treat it seriously.
The vacuous definition of "hostile-environment sexual harassment" we now suffer from inevitably diminishes the opprobrium that rightly attaches to the sorts of sexual harassment outlawed by the Supreme Court. As Katie Roiphe suggests, "rules about harassment should be less vague and inclusive. They should sharply target serious offenses and abuses of power rather than environments that are 'uncomfortable,' rather than a stray professor looking down a shirt" (104).
Outlawing well-intended and thoughtful acts, curtailing liberties otherwise protected, and punishing "incorrect" or "unwelcome" attitudes, sentiments, and ideas are also counterproductive--breeding the hostility and resentment we all want to see lessened. Katie Roiphe is worried that further censorious uses of sexual harassment may even elicit a "fierce response" (107).
However severe a future backlash may be, there is little doubt that current interpretations of "hostile-environment sexual harassment" have already created a climate of siege and suspicion in which every look or gesture, every slightly uncomfortable situation is taken as a personal affront and becomes grounds for a suspension, a firing, or a lawsuit. As a writer in USA Today puts it, this makes for a "very tense, unharmonious, nervous workplace" (11 October 1991). Dorothy Rubin, Professor of Education at Trenton State College, believes that "our zeal to overcome sexual harassment...may eliminate any semblance of human contact between the sexes in the workplace. That would be tragic" (USA Today, 15 October 1992). As women play "Gotcha!" with every real or imagined slight or indignity, men will become "guarded, defensive, and likely to close ranks. And that is a tragedy for all of us" (Billie Dziech, CHE, 13 November 1991).
There is evidence of this on campus already. "What is happening on the campuses is scary, because it is polarizing men and women. Rather than encouraging them to work together, to trust one another, to understand one another, it is intensifying suspicion" (Sarah Crichton, Newsweek, 25 October 1994, 56). In a survey of "sexual harassment" at Berkeley, a law student wrote that in response to fear of sexual harassment charges, "the male law school teachers ignore female students.... This means that we are afforded [fewer] academic opportunities than male students." Many male professors have said that they feel far less comfortable with female students than with male students, because of all the hypersensitivity surrounding "sexual harassment" (Roiphe 95).
Recognizing that something's gone terribly wrong, one "reasonable woman," Affirmative Action Officer Donna M. Jones (University of Wisconsin), believes it is time to reassure men that they need not "completely avoid their female colleagues or students" (CHE, 14 October 1992). But it's going to take more than one assurance from one EO/AA officer to convince men that what Charles L. McGehee calls the "reign of terror" is indeed over (CHE, 20 November 1991). When that happens, men and women will be able to work together more collegially and effectively to reduce real sexual harassment in the workplace.
Or, as a recent cartoon expressed the hope, "Sleeping Beauty dropped her sexual harassment charges and they lived happily ever after."
Kingsley R. Browne, "Title VII as Censorship: Hostile-Environment Harassment and the First Amendment," Ohio State Law Journal 52.2 (1991): 481-550. I express my indebtedness to this article for many of my legal citations and my better understanding of the legal aspects of "sexual harassment."[Back]