QUID PRO QUO “HARASSMENT” IS NOT DISCRIMINATION

QUID PRO QUO “HARASSMENT” IS NOT DISCRIMINATION

Clearly, what constitutes a hostile environment is more subject to political fashion than seems constitutionally permissible. Some years ago the Court struck down many death-penalty statutes for far less vagueness than this. It is this vagueness, however, that fuels the fires of political correctness and makes "hostile environment" into the source of the overwhelming majority of accusations and lawsuits concerning sexual harassment.

Nevertheless, for some strange reason, when sexual harassment is mentioned most people still think of the quid pro quo variety. The image that comes to mind is that of the boss telling his secretary that if she does not go to bed with him, he will fire her. This seems so much more damaging than "hostile environment." But is it a form of discrimination? No.

Most sexual harassment codes distinguish between two kinds of quid pro quo. In the traditional kind, the use of threats to obtain sexual favors, reasonable people ought to agree that it is impermissible. But two points must be made. First, there were already laws against it before anyone ever heard of sexual harassment. For such behavior is nothing other than extortion. A college professor in a private university in Southern California was recently found guilty of extortion in a criminal case. His crime was to extort money from foreign students by threatening to flunk them in his classes. Second, no one thought of accusing him also of discrimination, even though the students involved were not white. Analogously, the lecherous boss is not making his secretary a victim of discrimination. He is making her a victim of extortion.

The other alleged kind of quid pro quo sexual harassment is that in which the "harasser" accepts sexual favors in payment for hiring, promotion, or good grades. This is clearly unacceptable conduct, but how could it possibly be a form of discrimination? The situation is not different from that of a city official who takes bribes from a hoodlum. When the official gets caught he should go to jail for corruption, but surely not for violating the civil rights of the hoodlum!

Were the male boss to offer promotions or office perks in exchange for sexual favors — instead of issuing threats — he may be guilty of solicitation of prostitution. Were the woman to accept, she may be guilty of prostitution. But once again, this is not an instance of discrimination.

Some may worry about the arbitrary behavior that women may suffer in retaliation if they fail to satisfy their bosses’ sexual appetite. For example, after a nice affair, Mary tires of Peter, her boss, and starts dating the new man in the mail room instead. Peter begins to give her bad reviews and eventually has her fired. Shouldn’t there be a law against such behavior? Perhaps there should be. But it would be part and parcel of a more general labor law that protects employees from arbitrary behavior, not an instance of a law against discrimination. To see the point consider this other example. Peggy and Nancy have been best friends since high school. After graduating from college they both go to work for the same company, where they continue their friendship even though Peggy is promoted quickly and becomes Nancy’s supervisor. Enter the picture Roberta. Nancy and Roberta hit it off and become best friends. Peggy feels excluded and resentful. After a while she begins to give Nancy bad reviews and eventually has her fired. Her actions are arbitrary, but it would be really far-fetched to say that they are discriminatory. By analogy we can also see that Peter’s actions against Mary are arbitrary but not discriminatory. Notice also that Peter might direct his anger against the new man in the mail room, just as Peggy could make Roberta’s life miserable. Objectionable? Yes. Should there be a law? Perhaps. Is it discrimination? No.

Of course, if it is not discrimination, then the Civil Rights Act of 1964 cannot be used to justify any such legislation, either from Congress or from the federal bench.