What’s Illegal Behavior vs. What’s Stupid

Stories of sexual harassment are much in the news these days, from the sensational (Paula Jones) to the systemic (women in the Army). Most of us take sides on the basis of our feelings about the believability and motivation of the accusers and the moral character of the accused. We pass judgment, one way or the other, without pausing to define just what sexual harassment is, other than “I know it when I hear it.” That definition is fine for deciding how to respond to a groper on a date or a smart-aleck on the street, but it doesn’t resolve a tougher problem: deciding where to draw the line between sexual harassment that is illegal--a form of sex discrimination that is compensable under the law--and sexual remarks or conduct that are obnoxious, vulgar or stupid, but not actionable.

In the years since Anita Hill put the issue of sexual harassment on the political table, people have been pushing the definition as far as it will go. Although some women are attracted to definitions that include behavior they just plain don’t like along with behavior that is discriminatory and illegal, such blurring of meanings does not serve the cause of women’s rights.

According to the Equal Employment Opportunity Commission guidelines, sexual harassment consists of “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.” However, such unwelcome advances and sexual conduct do not by themselves constitute unlawful sex discrimination under the Civil Rights Act unless they meet one of two conditions: the sexual demands are made as a condition of employment (“quid pro quo” harassment), or the conduct has the purpose or effect of interfering with an employee’s performance or creating an intimidating, hostile working environment. A “hostile environment” is one in which there is a pervasive pattern of offensive and unwelcome conduct. A single vulgar remark or even an unwelcome pass doesn’t count, nor do the obnoxious jokes and stupid comments that occur now and then in every workplace.

The women who supported Anita Hill did not care whether the behavior she attributed to Clarence Thomas, such as joking references to pubic hair and porn movies, constituted sexual harassment in the legal sense; they were sure his behavior was sexual harassment in the moral and psychological sense. They felt exhilarated that a dirty secret of the workplace was at last being revealed in the august forum of televised Senate hearings, that the indignities so many women have experienced were being avenged.

Although Thomas was never accused of illegal behavior--merely of behavior thought unseemly in a Supreme Court nominee--in the public mind, the case conflated obnoxious actions with illegal harassment. Ensuing cases, such as Paula Jones’ suit against Bill Clinton, have confused the issue further.

The feminist attorneys and activists who worked so hard to make sexual harassment as intolerable as rape were not thinking of women who were offended by a one-time proposition, a bawdy story, a lewd compliment. They were thinking of women struggling to succeed in places where men use sexual remarks and crude behavior to force the women out.

The early sexual harassment cases were taken on by attorneys who were determined, against great odds, to correct this nasty and insidious form of discrimination.

According to Barbara Gutek, a social scientist who has pioneered in research on women in the work force, when employment litigators discovered gold in the hills of sexual harassment, the first wave of cases was over. Other motives for filing suit crept into the courtroom: the desire for fame, revenge, money or protection against being fired. We should not be surprised, says Gutek, that some women, abetted by attorneys, would file charges of harassment for these motives, any more than we are surprised by people who file bogus whiplash claims. But, she adds, these cases should not cause us to forget the many women who are suffering illegal harassment in silence. They don’t go public, so they don’t make the news.

Women who want to improve their opportunities in the workplace and their working relations with men need to think carefully about where to draw the line between what’s obnoxious and what’s illegal. This will not be easy for some women to do, especially when the accused is a public figure. It’s easy to understand the exhilaration with which many women respond to the censure and embarrassment of men in high places who behave like jerks or lechers--such as Bob Packwood, who, let the record note, never once fired any staff member for not sleeping with him or made it impossible for her to do her job. The taste of power is sweet, especially for the newly empowered.

But women had better be wary of cultivating that mean streak of prissiness in American culture. We need to decide whether we want a minority of women with “delicate sensibilities” to dictate the standard for everybody, especially if that is just going to make men angry and more certain than ever that women don’t belong in the workplace. The law is the proper weapon against those who commit illegal forms of harassment, but it should not be the weapon of choice against those who are merely loutish, misguided or ignorant.