Sexual Harassment Law: Has it Gone Too Far, or Has the Media?

Abstract

In June of 1998 the United States Supreme Court finished a term in which it heard an unprecedented number of sexual harassment cases. The media has hailed this series of decisions as “progressive” and great victories for employees. The Court's attention to sexual harassment came at a time when sexual harassment was already in the headlines, as President Clinton faced accusations of sexual harassment by Paula Jones and criticism from the general public for having an inappropriate sexual relationship with Monica Lewinsky. These events, both in the courts and outside, have brought the term “sexual harassment” into our vernacular and people are more conscious than ever about their interactions with others in the workplace. Society's awareness about the prohibitions against sexual behavior at work led to widespread concern about avoiding liability, resulting in reform of company policies and changing employer and employee behavior in the workplace.

Despite those gains, however, there has been a growing move to reverse the successes. Advocates of sexual harassment law face new obstacles as hysteria mounts surrounding the question of liability. A common perception exists that the law has tipped too far in favor of employees and that plaintiffs now have tremendous power over their employers. This perception often translates into the larger idea that feminism has a hold on the American workplace. People have referred to “feminist ranting about sexual harassment.” Even some feminists have subscribed to the idea that women have been able to use “anti-sexuality for political power,” and, like male chauvinists, feminists too can be “puritanical.”

Sympathy for women bringing suits is low, as people have become less concerned with the problem of sexual harassment and more concerned with the problems associated with false accusations and the victimization of men. A backlash has resulted in reaction to the legal blackmail perceived as the root of many sexual harassment lawsuits.

Not surprisingly, conservative commentators in both mainstream and right-wing media seized on the recent developments in the White House and in the law as an opportunity to challenge progressives and feminists, and their zeal toward achieving political correctness. Critics express concern about what they view to be confusion regarding the law, excessive anti-harassment programs, and the courts' poorly conceived expansion of civil rights protections. Catharine MacKinnon observed that particularly after the publicity surrounding the Paula Jones lawsuit and Monica Lewinsky's testimony, many people claimed that “sexual harassment law is vague, reckless, anti-sex, and lacking in standards.” Others fear that “freedom of speech is being trampled by political correctness, undermining creativity, spontaneity and morale in the workplace.” As one journalist wrote, “we talk and joke about sexual harassment, but we choose our words carefully. Our laughter is strained. Forty years ago, everyone knew how to act at school and work. Now most of us wonder what the rules are.”

Forty years ago, of course, we knew what the rules were because there were no rules about sexual harassment. Today we do not all understand the rules because they have only recently emerged, and we only hear part of the story from the media. But the sexual harassment laws are clearer than most people think. In fact, other than a recent development regarding employer liability, the laws have changed very little in the past decade. What has changed is our awareness of the problems relating to sexual harassment, our willingness to put up with inappropriate behavior in the workplace, and companies' recent push to hold employees and employers accountable for their actions in the workplace.

This Article addresses some of the roots of the backlash against sexual harassment law and posits that it is part of a greater backlash against feminism and political correctness. I argue the media has distorted the meaning of the law so that our common understanding of the law is disconnected from what is actually going on in the courts. I then conclude that the answer to the backlash is not taking a step backward to afford less protection to employees, but rather to educate the public better about the law in an effort to assure the workplace is free from unwelcome intimidation and abuse.

Keywords: Sexual harassment, sex, gender, discrimination, employment discrimination, media, feminism, backlash

JEL Classification: J71, K30