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 In practice the "reasonable person" requirement has often been replaced by the "self-righteous, politically-correct person" standard.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.