[Guest post by Aaron Worthing. Follow me on Twitter @AaronWorthing.]
Strap yourself in, because this is a long one.
Today via the AP, we read about the complaint that Karen Krausharr, one of Cains’ accusers who has not given details (as of this writing), made against the INS when she was their spokesperson. Her complaint about not being able to telecommute after an accident is… interesting, but not ultimately very illuminating. But her complaint about a mildly sexist allegedly humorous email is useful at this stage of the investigation, because she is being coy with the details of her accusation against Cain. All we know is she considered Cain’s conduct toward her inappropriate, and thus it is useful to see where her threshold for “pain” is, and apparently it is very, very low:
The complaint also cited as objectionable an email that a manager had circulated comparing computers to women and men, a former supervisor said. The complaint claimed that the email, based on humor widely circulated on the Internet, was sexually explicit, according to the supervisor, who did not have a copy of the email. The joke circulated online lists reasons men and women were like computers, including that men were like computers because “in order to get their attention, you have to turn them on.” Women were like computers because “even your smallest mistakes are stored in long-term memory for later retrieval.”
Of course if she ever tells us what precisely Cain has allegedly done, then it won’t matter whether she has been quick to file a complaint in the past or not. But until we can independently judge the severity of Cain’s alleged conduct toward her, this evidence is relevant and provides some illumination as to what she considers worthy of complaint.
But I didn’t really want to talk about that. As you might guess from the title, what this article really brings home for me in a serious way is how far we have strayed from our Constitution in the laudable goal of workplace equality.
But first, I have to make you understand what sexual harassment law is about. Many people think it has to be about sex, as in the act or human sexuality. The other day, for instance, James Taranto wrote the following:
The presence of both sexes in the workplace makes necessary some combination of laws, policies and customs to regulate sexual behavior on the job.
But let me throw a hypothetical at you for a moment. Imagine a white employee goes up to a black employee and starts calling him n——, calling him a slave, saying he should be lynched, and so on. What would us lawyers call that?
Racial harassment (among other things). That is harassment directed at an individual because of his race. And if a Jewish employee approached a gentile and started calling him a damn Christian, saying everyone in his faith are perverts, and that he should be shot, that would be… religious harassment. And likewise there can be age harassment, disability harassment, and so on. Indeed, I have personally been the victim of disability-based harassment. So Taranto seems to think that sexual harassment law is about regulating our sexuality. It is not.
When we hear the word “sexual” in sexual harassment, our dirty minds think of human sexuality—the attitudes, acts, etc. associated with the act of sex. But that is not the meaning of the word in that context; in that context, “sexual” means “based on gender.” I have long told people that it is better to call it gender harassment so as to avoid this basic misunderstanding. Sexual harassment, therefore, is just one subset of a number of doctrines prohibiting harassment that has grown up under our civil rights laws.
The impetus behind the development of the law of discriminatory harassment seems pretty obvious, too. Surely when the Civil Rights Act of 1964 was passed there were some people who thought they could hire equally, but then make black people (or any other group they dislike) feel so unwelcome (indeed often leading that person to fear for their lives and safety) that they would voluntarily quit. So you need a rule that prevents employers from actually harassing based on undesirable traits and even requires employers to prevent such conduct between employees. Thus the concept of harassment by hostile environment was born.
And of course applied to women a new problem started cropping up. When a man in says to a woman who is his secretary, “sleep with me or you are fired,” he obviously is not typically trying to drive women out of the workplace. I mean, I can imagine a situation where a man who just hates women in the workplace might require a woman to engage in sexually humiliating conduct as a way of driving her out, but let’s face it, it’s more often about horniness than anything else.
(No, I don’t buy the claim that sexual harassment is about power. Power is the means to the end, not the end itself. The goal is in most cases just to have sex.)
What the creepy boss is doing in my hypothetical, really, is trying to change the job description of his secretary, from the ordinary duties of a secretary to the ordinary duties of a secretary, plus the services of a prostitute. And if you are wondering how that is gender-based, well… ask your self this: would he do the same if his secretary is a man? The answer is almost always “no.”
(There was a case where a man claimed to be an equal opportunity sexual harasser. I never found out how that turned out, but let me say that is an extremely risky strategy even if it might theoretically work. You would have be truly equal opportunity in your harassment and the court might still find that it is gender-based because of the disparate impact of the facially equal behavior. Bluntly, don’t try it.)
And that is what we lawyers call quid pro quo, the promising of a benefit for saying “yes,” and/or retribution for saying “no.”
And all of that sounds well and good, until you think for a moment of the supervisor who sent around this email comparing men and women to computers. This was the INS, but I think every person who works for a private employer knows how their company would react. There would be investigations, there would be recriminations, and there would very likely to be at the very least a warning to this employee…
…for writing an email.
In other words, for exercising his freedom of expression. Now of course a private employer can voluntarily choose to be as much of a prude as he or she wants. But this is not typically voluntary on the part of the company. This is, “you idiot, you’re going to get us sued, cut it out.”
Ordinarily when it comes to freedom of expression the court says that indefiniteness is intolerable. The courts speak of an impermissible “chilling effect” on protected speech when a law is vague. As Justice (Thurgood) Marshall wrote in Grayned v. Rockford:
[W]here a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.
(internal quotation marks removed)
Now, let us take a moment to look at one of the seminal cases in sexual harassment, Meritor Savings v. Vinson. In it the Court drew the line between permissible speech and impermissible harassment. After explaining that the harassment must have the effect of altering a term, condition or privilege of employment, the court said:
Of course, as the courts in both Rogers and Henson recognized, not all workplace conduct that may be described as “harassment” affects a “term, condition, or privilege” of employment within the meaning of Title VII. See Rogers v. EEOC, supra, at 238 (“mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” would not affect the conditions of employment to sufficiently significant degree to violate Title VII); Henson, 682 F. 2d, at 904 (quoting same). For sexual harassment to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim's] employment and create an abusive working environment.” Ibid. Respondent’s allegations in this case — which include not only pervasive harassment but also criminal conduct of the most serious nature — are plainly sufficient to state a claim for “hostile environment” sexual harassment.
Let me be blunt folks. There isn’t a lawyer in America that can tell you what exactly that language means. There are cases where the line has been pretty clearly crossed. For instance, Mechelle Vinson alleged that her supervisor actually raped her, so that is obviously sexual harassment. And indeed all quid pro harassment is almost automatically sexual harassment. But in the close cases, where the behavior is merely verbal or written, it is very hard to know where the line is.
So the chilling effect takes effect. Employers often try to suppress any sexual discussion, at all, not because they wish to behave this way, but because of their rational fear of a lawsuit.
And if you want to see how quickly freedom of speech gets thrown to the wayside, I suggest you read the Lyle v. Warner Brothers. It is known among employment lawyers as the “Friends case” because it grew out of the television show. Apparently the show is written by horny teenagers, judging by the behavior involved. The writers for the show would openly discuss their sexual experiences, brag about conquests, and even ask the plaintiff about how good she was in bed with her boyfriend.
Now I am in the distinct minority among people, since I didn’t like the show. Mainly I liked their stories better the first time, when they were on Seinfeld and what wasn’t derivative was just annoying. So I don’t personally place too high a value on their speech. And the behavior they described among the writers is incredibly offensive. But, like it or not they are entitled to their crude, derivative speech, and while I am not absolutely certain that this conduct was necessary to their creative process, I think the courts are correct to err on the side of tolerance. So we should all breathe a sigh of relief that they won…
…in the California Supreme Court. Which means they had to fight their way all the way up to that level in order to protect their right to “free” speech. Now it appears that they would be able to recover attorneys fees and court costs, but as the case was going, certainly their lawyers would have recognized that this was quite a gamble they were taking. I admire Warner Brothers and their lawyers for recognizing just how important it was to win this, and not merely settle the matter cheaply as they almost certainly could have. But how many others would simply fold and have their speech chilled as a result? And indeed the court still left open many avenues by which the show still could have been sued—just not on the facts before the court at the time.
So I think sexual harassment law is in dire need of reform. Quid pro quo harassment can be left in place because it is conduct that is actually criminal in most states (as I keep saying, it’s solicitation of prostitution if unsuccessful, prostitution if successful). In terms of hostile environment I think the courts should draw a bright line: only conduct, and not mere words, can be harassment. Now I mean that as lawyers understand the term “conduct.” When two people form a contract, that is not considered speech, but conduct. The same is true of threats. So if you touch a person or threaten them, that is harassment that can be prohibited under the law. But not merely expressing an unpopular opinion. That is not to say I am okay with other crude comments, but we cannot ban everything that offends us—especially when that thing is merely words.
Besides, most employers will not allow that kind of conduct if only because it is unprofessional. And again, if private companies wish to be prudish,* there is no constitutional problem with that.
But the First Amendment says that Congress may not pass any law abridging freedom of speech or the press.** And as the Supreme Court has repeatedly said, the prohibitions of the Constitution do not apply merely to formal violations. The First Amendment does not merely prohibit laws that on their face state they are preventing expression, but laws that can be interpreted so that they have the same effect. It is not necessary in my mind to strike down the various Civil Rights Act that have by interpretation been extended to the point that they violate the First Amendment. Instead, it is only necessary that the courts stop interpreting them that way, recognizing that they were wrong to have extended the reach of the law that far.
And I say all that recognizing that the harm engendered by the proposed change in rules will probably fall more on women, minorities, and even the disabled. I know from personal experience how harassment can rob you of your opportunities. The road to this standing violation of the First Amendment was paved with good intentions. But it cannot go on.
* Some of you will notice I am side-stepping the issue of how prudish public employers can be. That is because I am uncertain exactly how I feel about that. Perhaps I will write on this another day.
** Freedom of the press, in my opinion, encompasses every expression in written words, not just the institutional press. After all, the founders surely wished to protect Thomas Paine as much as the Pennsylvania Gazette.
Update: Minor edits for clarity’s sake.
[Posted and authored by Aaron Worthing.]