Sexual harassment

National Review, Nov 4, 1991

SENATOR KENNEDY is assuredly correct that, as a result of the Thomas hearings, the country will never again view sex harassment in quite the same light. Much of the country had its first exposure during these hearings to this quietly burgeoning area of the law and was bewildered by its implications.

There are no laws against sex harassment, in the sense that the representatives of the people have ever debated the intricacies of male-female relationships and proscribed certain forms of conduct. Rather, sex harassment is outlawed because Thomas's old agency, the EEOC, and a few federal judges, have decided that laws that prohibit discrimination on account of sex also prohibit a loosely defined sex harassment. This legal development is the crowning achievement of feminist jurisprudence.

What is feminist jurisprudence? It is a jurisprudence in which women who say yes (but who would have said no but for their acceptance of sexual stereotypes) are treated as the victims of rape. More to the point here, it is a jurisprudence in which crude jokes, flirtations, double entendres, catcalls, men's room graffiti and nude pin-up calendars become the stuff of litigation-or would do if the overwhelming number of sex-harassment suits were not settled prior to trial. Few males in the workplace apparently relish the opportunity to participate in the kind of witchcraft trials that Thomas has been involved in before the Senate Judiciary Committee.

Insofar as anyone can understand sex-harassment law, a woman does not need to be physically touched to be harassed; she does not need to be denied a job or advancement to be harassed; and she does not even need to be the object of attention herself to be harassed. Those who merely witness harassment can sue on their own behalf and one life-termer on the federal bench has ruled that a woman who was not asked for companionship, while others around her were, was a victim of harassment.

"Over the next quarter century," declares Harvard Law Professor Laurence Tribe, "feminist legal theory is likely to be the most fertile source of important insights in the law." Having persuaded the Supreme Court in 1986 that a "hostile environment" in the workplace was sufficient to trigger a sex-harassment suit, feminist lawyers have opened the door to legal challenges to labor and management policies, limited only by the creativity of the plaintiff s bar. That gives lawyers virtually free rein. In observing that "it is entirely professional of Anita Hill to attempt to continue a professional relationship with Thomas," a leading feminist law professor, Catharine MacKinnon, managed to rationalize in one fell swoop Hill's failures forcefully to tell Thomas that his advances were displeasing, her continuing relationship with him, and her failure to communicate her grievances to the world for nearly a decade. That, in a nutshell, is the feminist law of evidence-the less the circumstances point to harassment, the more compelling the case that it occurred.

We hold no brief for sex harassment or for crude behavior. But everyone must be concerned about the potential for unfairly destroying reputations contained in what passes for the law today.