SCALIA’S UNREASONABLE OPTIMISM

SCALIA’S UNREASONABLE OPTIMISM

On a court decision concerning sexual harassment, Justice Scalia writes confidently that the "reasonable person" requirement is "sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace - such as male-on-male horseplay or intersexual flirtation - for discriminatory conditions of employment." He should tell that again to a country in which reckless eyeballing has finally been made into a federal crime. In practice the "reasonable person" requirement has often been replaced by the "self-righteous, politically-correct person" standard. The example of the university employee’s posted cartoon, as well as thousands and thousands of other examples, show that what constitutes a hostile environment is more subject to political fashion than seems constitutionally permissible.

According to Justice Scalia himself, sexual harassment was legally born because Title VII "evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment ..." In this receptive mood, the Court bought the peculiar feminist notion that sex is a man’s best weapon to keep a woman down.

The feminist rationale for sexual harassment law does expose one form of discrimination. Take, for instance, the notion that where a power differential exists consent is not freely given. For many influential feminists both John and Peter are guilty of discrimination since they both have supervisory power over Mary. This view has made its way into the sexual harassment guidelines of many colleges and businesses as a flat-out prohibition against romantic involvements between supervisors and those under their supervision. Notice, however, how this view militates against the legal equality of men and women. For it implies that an adult woman is incapable of making wise decisions about the most intimate aspects of her life, and that therefore the state has the duty to step in and safeguard her. In short, women workers and women college students are to be made wards of the state.

Women are thus made into a "protected" group (that is how they are treated by the Federal agencies that enforce Title VII and Title IX), just as affirmative action has made a variety of racial minorities into "protected" groups. The consequence is that women and men no longer receive equal protection under the law. At its heart, then, the very justification for sexual harassment law involves discrimination against men.

Notice that the feminist rationale could not have yielded all this body of law unless, as Yale law professor Vicky Schultz, points out, "The courts said harassment was sex bias because the advances were rooted in a sexual attraction that the harasser felt for a woman but would not have felt for another man." When such a rationale, adopted as a measure against men, leads to laws whose protections are later extended to men, and now homosexuals, we are deprived of all reasons, even bad reasons, for such laws, as I will explain in the Appendix below. For abuse of power by itself may be reprehensible, and in some cases illegal, but it need not be discriminatory. As I will argue in a future article, not even quid pro quo harassment can be shown to be discriminatory, although on occasion it amounts to extortion, which is already covered by other laws.

In defense of the prohibition against sex between supervisors and their powerless female charges, some observers draw analogies to the profession of psychiatry, in which it is considered unprofessional for a doctor to engage in sexual relations with his patients. Nevertheless, realize that the doctors are seen as harming their patients, not as discriminating against them. And their patients, by the very fact that they are mental patients, are supposed to suffer from diminished mental capacity. But I do not suppose even feminists would suggest that a woman suffers from diminished mental capacity by the mere act of becoming a university student or getting a job in an office.

Sexual Harassment Law is Unconstitutiional (1)

A BARE-BONES ARGUMENT FOR WHY SEXUAL HARASSMENT LAW IS NOT CONSTITUTIONAL (I)

A recent case at a state university in Washington illustrates at least two unconstitutional aspects of the sexual harassment law that plagues North America: A staff member was found guilty of sexual harassment for posting on his door a cartoon that depicted a buxom secretary saying to a friend, "if they are not dateable, it is sexual harassment."

The first aspect is the disanalogy between sexual harassment and true racial or sexual discrimination. This is critical because, historically and constitutionally, the only justification for sexual harassment law is that sexual harassment constitutes discrimination on the basis of sex. [Title VII and Title IX of the Civil Rights Act of 1964 provide the justification for prohibiting discrimination on the basis of sex, although the 14^th Amendment already did that. Neither Title VII nor Title IX mention sexual harassment, though]

In the case of racial discrimination an employer denies a job to a black man because he is black. Or when the black man is given the job he is nevertheless exposed to disadvantageous terms or conditions of employment to which white employees are not exposed. In either situation there is intent to do harm to someone because of his race. Analogously, a woman may be denied a job because she is a woman, or she may be subjected to constant hostility, because she is a woman, with the intent of making it difficult for her to do well in her job, and actually often with the intent of making her quit. That is true discrimination on the basis of sex.

But the case of sexual harassment is quite different. Peter, a male supervisor, and Mary from the typing pool are working late together. At one point they look into each other’s eyes and Peter comes to believe that Mary desires him. On an impulse he grabs her, kisses her passionately on the mouth, and proceeds to caress her intimately. As it turns out his belief is correct and Mary responds to his kiss and caresses just as passionately. The beginning of an office romance.

Suppose, however, that Peter cannot work that night and another male supervisor, John, has taken his place. At some point John and Mary look into each other’s eyes and John, honestly believing that Mary desires him, grabs her, kisses her on the mouth, and proceeds to caress her intimately. Unfortunately John has read Mary wrong: She does not desire him. Mary runs out of the office crying. The next morning she files sexual harassment charges against John. Since there was serious, unwanted physical contact, John is a good as gone. In most offices and campuses he will lose his job, and few courts are likely to let him off the hook.

Notice that such duality of outcome (wanted vs. unwanted) is not possible in the case of racial harassment. Although individual sensibilities vary, the same actions, when perceived as stemming from the same intentions, are not going to be received with extreme favor when coming from one individual and with extreme disfavor when coming from another. It is not an objection to point out that a black man who hears a racist remark may make allowances in the case of a white man who has been kind to him in the past. For Mary is not making any allowances in the case of Peter. His advances were perfectly wanted. Normal women do want at least some men to make advances to them (and some women do want passionate advances). But normal black people do not want racist actions to be taken against them.

Had John been considered dateable by Mary, his job would not be in jeopardy. The constitutional issue is not what we may think of John’s conduct, but rather whether he discriminated against Mary. Did he, by his kiss, intend for Mary to fail at her job? Were his actions prompted by hostility against Mary as a woman? No and no. The analogy to racial discrimination is spurious.

The second unconstitutional aspect is the scandalous vagueness of the criteria by which people, mostly men, may be found guilty of harassment, particularly of the "hostile environment" variety. A feminist professor at Penn State demands that the print of Goya’s "La Maja Desnuda" be taken out of a classroom because it constitutes hostile environment. Penn State complies. A doctor is accused of harassment by a nurse because he wears only shorts and a shirt when he leaves his office at the hospital to go jogging. A professor at San Bernardino Community College is fired for asking his class to write a paper on whether pornography should be legal. A Federal judge concurs with the college, claiming that the First Amendment must take a back seat to the intent of Title IX.

Of course, such reading of the intent of Title IX requires a great deal of creativity on the part of the judge, since no one had anything like sexual harassment in mind when the Civil Rights Act was passed.

But what is even worse is to have a Federal court, whose mandate is to uphold the constitution, decide that some law passed by Congress abrogates the First Amendment. If the intent of Title IX does conflict with the constitution, it should have been the judge’s duty to throw out Title IX.

Cynicism about Sexual Harassment

Cynicism about Sexual Harassment

I have finished the text of Alex in Femiland. How realistic is my novel? Have I been fair to feminists and their attempts to stamp out sexual harassment? In the next few weeks I would like to tell you some true stories that I happened to witness over the years. I will then make some comments about the constitutionality of the laws and administrative guidelines on the subject, laws and guidelines that can be easily employed to destroy a person’s job, career, or political ambitions.

The following episode took place some 14 years ago, when I was teaching at a prestigious liberal arts college (for those from overseas, such an institution is a small university that offers, generally, no graduate programs). As you will see, my disgust prevented me from mincing words.

One day I was walking near my house when a student called my name. I knew him because we played in soccer pick-up games every Saturday morning. He said he needed to talk to me urgently. He had been a member of a group a students who had been sponsored by a faculty member to do a weekly show at the local TV station. It was the kind of station that offered many community-produced programs. Because the professor had his own show in the station and they knew him well there, the students were allowed the run of the studios, the equipment, etc. And they got academic credit through the professor. He was an exciting and excitable guy -- actually he was known for having a terrible temper. But the students were happy that he had sponsored them. For the students to get the station's permission they had to sign an agreement not to do anything pornographic. Apparently a local preacher who had a show decided to do his sermon naked and the station had been threatened with the loss of its license.

Everything went well for the first nine weeks of the quarter, but on the tenth week the group broadcasted a program that included a video of oral sex between two men. Fortunately the first showing of this program took place at 2 or 3 in the morning. The station immediately stopped the repeat showings (normally there were 4 showings of every program in a week, at varying hours). But the station also sent a letter to the professor and to the President of the College, threatening to sue. The professor immediately contacted the students. He forced them to write a letter of apology to the station. He also told them that they each had to write a ten-page paper on the ethics of journalism or else they would get no credit for the quarter. The station then backed off its threat to sue. The President sent a letter to the professor thanking him for the way he had handled this embarrassing problem.

A few weeks passed and the paper was coming due. Some of the students went to the professor's Dean with the complaint that since they had already apologized they shouldn't have to write an additional paper. It was the kind of school where the customer (the student) was always right, so the Dean took their side! He wrote an e-mail message to the professor asking him to rescind his ethics paper requirement. The professor ignored him. The Dean wrote him again. The professor told him pretty much to go to hell. He also said that he would not even read the Dean's messages anymore. The Dean was then unable to remove the “unfair” burden from the lives of the little darlings.

What the student soccer player wanted to tell me was that the group of students had had a meeting in which they had agreed that one of the girls would lodge a complaint of sexual harassment against the professor and the rest of the students would back it up. They then discussed the story the girl would make up. The soccer player was grossed out. Even though he had not been involved in the tenth week production, he felt responsibility because he was part of the group, and had thus already turned in his ten-page paper. He was asking me to do something to put a stop to the monstrous plan of his peers.

I called the Dean to make him aware of the plot being hatched by the students. I expected that he would initiate disciplinary action against them. Instead he told me that any complaint of sexual harassment made by this girl against the professor would be taken very seriously by the College! I felt as if I were swimming in slime. Nevertheless, I called the Provost, who was unusually decent by local standards. The Provost assured me that she would not allow such a complaint to prosper. She asked me to contact the professor, however, and to tell him not to do anything rash.

I was too late. The ring leader, a boy, had already gone into the professor's office and tried to blackmail him: if he did not back off on the paper, the girl would lodge her complaint. The professor blew his fuse, all his fuses. "Are you threatening me?" he shouted. He then picked up a chair and moved towards the student as he if were going to clobber the little shit with it. The student went pale and ran out of the office in a panic.

There was no sexual-harassment complaint filed. The little bullies got scared that this madman would actually do them bodily harm if they went through with their scheme.

Nevertheless this story illustrates well the kind of climate that the politically-correct worship of victimhood has brought to colleges and universities throughout the land. At that “liberal arts” college, professors who gave girls evaluations not to the girls' liking risked being accused, with a whole bunch of other students jumping in as "witnesses." Soon some professors stopped seeing girls in their offices. They started having their appointments in the open area of the cafeteria, in a place full of people, for their own protection. This situation resulted from a combination of feminist hysteria, cynical opportunism by students, and “sensitive” ass-kissing of the students by administrators.