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.