Sexual Harassment Law: Rachel Lu’s Response

I’m very appreciative for these thoughtful responses to my Liberty Forum essay. It’s interesting that we seem to broadly agree that current legal paradigms are problematic, making it very difficult for courts or employers to respond prudently to sexual harassment. At the same time, there do seem to be interesting differences among the group.

Mark Pulliam is the most uncompromising about categorically rejecting the classification of sexual harassment as a form of discrimination relevant to Title VII. He argues that “individuals’ heterosexual urges and personal chemistry are not comparable to racial/ethnic prejudice or religious bigotry, the evils that Title VII sought to combat,” and that the only workable solution to the current mess is to stop addressing sexual harassment under Title VII and to treat sexual harassment cases under criminal law, tort law, or new legislation introduced by Congress.

Cathy Young has some sympathy with that suggestion (which, as she observes, has been made before, in 1990, by libertarian Ellen Frankel Paul) but thinks it is probably unrealistic to suppose that such a drastic course-change would even be considered at the present time.

Suzanne Lucas, in the light of her extensive pragmatic experience with sexual harassment cases, suggests that legal solutions are inevitably going to be ham-fisted and unsatisfactory, and that most sexual harassment probably just needs to be handled internally by employers and human resources departments.

I think Young is almost certainly correct that a total abandonment of decades’ worth of sexual harassment law just isn’t politically feasible. But if Pulliam is right, and all sexual harassment discrimination is equally (which is to say, almost completely) incoherent, we might be in the unhappy position of being unable to suggest any change of course that would be both prudent and politically feasible.

I’m not convinced that the situation is quite so grim as that. It’s interesting to me that Pulliam, even as he rejects sexual harassment law, is not dismissive of discrimination law more generally. He seems to agree that Title VII was needed at least at one time, and that it has a legitimate function in combating unjust discrimination. He just doesn’t think sex properly has anything to do with it. The law was meant to deal with animus against groups, but sexual harassment is not an instance of that; sexual attraction is not animus, and in any case harassment is directed toward a person, not a group.

I’m not sure this is categorically true. I agree that feminists like Catharine McKinnon are guilty of dramatic overreach when they see raw power-assertion behind nearly all expressions of romantic interest. On the other hand, it does seem quite possible for an employer to have prejudiced attitudes about women that manifest themselves in sexually charged treatment of female employees, and that hinder these employees’ professional lives. This does seem to me to be relevantly similar to the objectionable attitudes some employers might display toward particular ethnic or religious groups.

Consider, for instance, a boss who hires many black employees, but primarily assigns them jobs involving manual labor (handing brainier tasks to other employees), while expecting them to affect a servile demeanor and respond willingly to the moniker “boy.” If an employee complained about this treatment and was subsequently fired or demoted, it might be difficult to prove definitively that he was “singled out for adverse treatment” due exclusively to his race. There might be many other, more cooperative black employees who are doing fine at the company and even getting raises. The company’s attorneys could argue that the employee was punished, not for his race, but rather for his surly attitude. At the worst, he is being punished for being black and failing to fit the employer’s stereotypes concerning black people. That might offend us, but we can logically distinguish between those expected qualities and race as such, therefore it is not a case of racial discrimination.

If that argument is persuasive to you, I question whether there will in practice be very many cases at all, with respect to race, religion, or any other group, that clearly qualify as unjust discrimination. There will quite often be context-complicating efforts to diagnose particular hiring or promotion decisions, or objectionable patterns of behavior, as problematic manifestations of prejudice against an entire group.

But if that is not persuasive to you, then it seems a very analogous case could be constructed with respect to sex, in which sexual harassment is an important or even constituent factor in the discrimination itself. Replace the racist boss with one who assigns women primarily to decorative or auxiliary roles, pressures them to be sexy and flirty at work, and refers to them casually as “doll.” His offensive behavior reflects the fact that he is sexually attracted to women, but that attraction, and his brazen and improper expressions of it, are bound up in broader prejudicial and patronizing attitudes toward women, which very possibly will impact their careers and working lives in adverse ways.

In that case, it doesn’t really seem like a stretch to see the harassment as a kind of discrimination, or at least as a strong manifestation of exactly the sorts of discriminatory attitudes that Title VII was meant to punish.

If there are cases of harassment that can non-ridiculously be treated under Title VII, that is, in a way, very good news. It opens the way to a less drastic (and more politically palatable) modification of present sexual harassment law. Such a modification would try to focus on instances of workplace harassment that do seem connected to broader discriminatory attitudes or patterns of behavior. That would leave the more isolated cases of improperly expressed sexual attraction to be addressed in another way, perhaps moving us closer to Lucas’ suggested world, in which companies themselves shoulder the bulk of responsibility for keeping workplaces fair and decent.

Reader Discussion

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on July 27, 2018 at 09:54:01 am

Title VII, as written, is a blunt instrument—a meat ax, not a scalpel. It was intended to address a macro problem—segregation in employment and public accommodations—not to reconfigure societal attitudes and intimate associations. The temptation (or regulators, courts, and sympathetic interest groups) has always been to transform Title VII into a vehicle for “progress.” This is how we needed up with “disparate impact,” quotas, preferential treatment, sexual harassment, and a host of similar innovations—all well-intentioned, but not honestly derived from the text of Title VII. Rachel’s hypothetical example rests on the reader’s intuition that “unjust discrimination” on the basis of employees’ attitudes should violate Title VII. Title VII, alas, doesn’t proscribe discrimination that is “unjust”; it prohibits discrimination on the basis of specific group characteristics. If an employer treats some black employees better than others—for any reason at all—it may be objectionable on many grounds, but not as an example of race discrimination.

I don’t disagree with Cathy Young’s assessment that #MeToo is here to stay—that the status quo is so politically entrenched that reform is inconceivable. My point is that the incoherence of the law is due to its unprincipled derivation, and that to fix it—IF our lawmakers had the political will—requires that we understand where and how we got off course. And we surely are off course. Ellen Frankel Paul was right.

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Mark Pulliam
on July 27, 2018 at 10:08:39 am

For, not or.

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Mark Pulliam
on July 27, 2018 at 10:11:37 am

Ended up, not needed up.

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Mark Pulliam
on July 27, 2018 at 12:58:20 pm

It does seem relatively clear that most men or women don't sexually harass their bosses (save in notorious cases like Tailhook), but instead harass women (and sometimes men) in lower ranking/power positions. So the power differential seems to be an integral part of a lot of sexual harassment.

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on July 30, 2018 at 14:39:40 pm

You write, "it does seem quite possible for an employer to have prejudiced attitudes about women..." As a male high school teacher I can say, without fear of argument, that the reverse is true, especially in public education. I have worked with female and male administrators who have made it clear to me that my gender (male), race (white) and sexual orientation (hetro) prohibit me from understanding ANY student who is not what I represent. I live with a fear of being called out for saying something inappropriate without intending to (it has happened to me a a few times) and I cringe internally whenever my students bring up issues of race, gender or anything else that is a hot button topic. I very rarely carry on substantive conversations with colleagues (especially women ) because of the hypersensitivity surrounding language and behavior. The "Me Too" movement's language and victim pathology have reached high school and, in my opinion, has made otherwise rational people angry, confused and conspiratorial.

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William Miller

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.