Heterophobia

Sexual-harassment law has new-found friends.

THE hypocrisy of the feminists who suddenly rethought sexual harassment when their ally in the White House found himself in the dock has been discussed ad nauseam. But there is plenty of hypocrisy to go around. Until comparatively recently, conservative commentators nearly universally viewed the battle against sexual harassment as both a radical feminist effort to polarize the sexes and an expansion of government power, giving federal agencies and the courts the authority to micromanage workplace etiquette. They rightly pointed out that there were few more egregious examples of judge-made law than turning Title VII of the 1964 Civil Rights Act, which prohibits sex discrimination in employment, into a prohibition of "unwelcome" sexual attentions at work. How times have changed. After Paula Jones came forward in 1994 with her claim that then-governor Clinton had subjected her to indecent advances three years earlier, some of Clinton's conservative critics were as quick to discover a concern with sexual harassment as most feminists were to abandon it. The Rutherford Institute, which had specialized in the defense of religious liberties, not only championed Mrs. Jones's lawsuit-whose religious angle is not immediately clear-but even filed a brief for the plaintiff in a Supreme Court case some have regarded as relevant to Mrs. Jones's, Burlington Industries v. Ellerth. (The issue was whether sexual advances by a superior should be grounds for strict legal liability even if a perceived threat of reprisals was not carried out; the court eventually said yes.) After Mrs. Jones's claim was dismissed, conservative legal scholar Bruce Fein, who had previously criticized the Supreme Court for eliminating the requirement of either economic or psychological detriment to the plaintiff in sexual-harassment cases, assailed Judge Susan Webber Wright for imposing such a requirement in the Jones case. Also in Paula Jones's corner was the Independent Women's Forum, which had previously played an admirable role in challenging sexual-harassment hysteria- exemplified by a 1996 article in its magazine, The Women's Quarterly, "Shrinking Violets at the Office." (Full disclosure: I am co-founder of the Women's Freedom Network, which has sometimes been characterized as a rival group to the IWF.) Earlier this year, the IWF allied itself with the Dulles-area chapter of the National Organization for Women in Virginia, which broke away from the national leadership over its support for Bill Clinton. A joint statement issued in May declared that "IWF and Dulles NOW unequivocally oppose sexual harassment in the workplace" and urged policies to ensure that "employees are not subject to sexual exploitation-even once." This was a transparent reference to the Jones case, in which the judge held that a single sexual advance was not legally actionable. Of course, if such a one-strike-and-you're-out principle were to be ensconced in law, based on a concept as vague as "sexual exploitation," it would surely be applied to far lesser offenses than the extremely boorish overture alleged by Mrs. Jones. The Lewinsky story has created even more enthusiasm on the Right for sexual-harassment law. As White House spinmeisters recite their "It's only sex and sex lies" mantra, Clinton's critics-from Rep. James Rogan (R., Calif.) on ABC's This Week to pundit Laura Ingraham on Politically Incorrect-have resorted to a clever response: If the President gets away with perjury in a sexual-harassment case, sexual-harassment laws will be weakened. (This argument was first deployed in the Starr report: "To excuse a party who lied or concealed evidence on the ground that the evidence covered only 'personal' or 'private' behavior would frustrate the goals that Congress and the courts have sought to achieve in enacting and interpreting the Nation's sexual-harassment laws.") Yet, whatever one thinks of Mr. Clinton's conduct, the fact that a harassment lawsuit could turn into a fishing expedition in which- in the hope of uncovering a "pattern"-the defendant is questioned under oath about his sexual relations with another government employee should stand as an indictment of such litigation. There is nothing wrong with pointing out that the liberals' defense of Clinton contradicts their (and the Clinton Administration's) professed allegiance to the anti-sexual-harassment crusade. Republicans have every right to argue that, regardless of the merits of any specific law, tolerance for perjury would hurt the integrity of the justice system in general. But they don't have to wax enthusiastic about sexual-harassment claims in particular, as Rep. Rogan did at some length. Again, the problem is that conservatives have started to sound as if they shared that allegiance. From them, the rhetoric of sexual harassment sounds jarring-not unlike NOW president Patricia Ireland's recent talk about the sanctity of marriage on CNN's Larry King Live, in defense of Hillary Rodham Clinton's decision to stand by her man. When I asked IWF executive vice president Anita Blair if conservatives were going too far in allying themselves with the anti-sexual-harassment cause, she said, "We have to be careful not to endorse the flawed legal analyses that have evolved" and added that, in this context, civil-rights laws have been "carried to absurd conclusions." Yet, given an opening on This Week in April to explain the conservative position on the current law, she said only, "We accept that sexual harassment exists, that it is wrong, and that it should be illegal" (adding the weak caveat that in cases of "interpersonal friction" there should be more reliance on families, schools, and churches to instill norms of civility). She also told me that "by any plain English interpretation of 'sexual harassment,' Clinton's admitted behavior"-a sexual affair with a lower-status employee in his office-"fits this term as the feminists themselves have defined it." As to whether conservatives should be embracing such definitions, she said that "it's only right that the proponents of the law be held to these standards." In fact, under the current legal regime, the fact that a woman aggressively pursued her boss, flashing her underwear at him and initiating oral sex without waiting to be asked, would not have necessarily kept her from filing a harassment suit-and possibly wangling a handsome settlement -had she later changed her mind. It is also true that some of the feminists leading Clinton's defense, notably law professor Susan Estrich, have in the past explicitly argued that sex between a superior and a subordinate is not truly consensual and should be subject to legal strictures. But again, it's one thing to take feminists to task for their opportunism, and another for conservatives to take up the slack in talking about "power differentials" and referring to the affair as, in the words of Linda Chavez, possibly "the most important sexual-harassment case in U.S. history." In an article on the website of the Center for the Study of Popular Culture, Noemie Emery, a frequent contributor to conservative publications, does not invoke the terminology of sexual harassment, but she speaks of "Clinton's alleged seduction of a young girl in his employ." Yet to cast Miss Lewinsky as a seduced maiden is to abandon all belief in personal responsibility. She is not even a poster girl for the view that sex without love is always about male exploitation of women. This was a young woman who by her own account was not in love when she embarked on the affair-and who never let her heartbreak over the Big Creep get in the way of a good time, treating a fling with the "nutrition guy" as just another amenity at a spa. Some conservatives have a soft spot for the concept of sexual harassment for other reasons. A few of them, such as Irving Kristol, have long viewed this feminist effort with qualified sympathy, as a camouflaged back-to-the-pedestal movement-a roundabout way to reclaim traditional feminine protections from predatory male sexuality. But this is wishful thinking. What the harassment crusade seeks is the privilege of being treated like a lady when you feel like it, without having to act like one. In several cases (such as Swentek v. USAir in 1987), courts have specifically held that a woman's use of "foul language with sexual innuendo" did not bar her from seeking legal recourse against similar behavior by her male co-workers, as long as she had not "welcomed the particular conduct in question." While a few women have found themselves on the receiving end of sexual-harassment complaints over dirty jokes on the job- from other women or from men who have caught the sensitivity bug-their behavior, for the most part, has been exempted from the new strictures. Nor does harassment law have anything to do with morality. Ironically, the growth of these laws has been paralleled by legal challenges to company rules banning adulterous affairs between co-workers (which, unlike sexual-harassment policies, had been voluntarily adopted by employers). Under the new dispensation, according to the Los Angeles Times, such affairs are okay as long as the paramours have signed an agreement attesting that neither of them is being sexually harassed-an arrangement that manages to condone adultery and trample on privacy at the same time. As Daphne Patai, a professor at the University of Massachusetts (Amherst), writes in her new book Heterophobia: Sexual Harassment and the Future of Feminism, the concept of sexual harassment now serves primarily as "the conduit by which some extreme feminist tenets about the relations between the sexes enter everyday life with minimum challenge." Today, as the popular sympathy for Clinton seems to indicate, the culture may be ready for a backlash against "sexual McCarthyism," which has its roots in the feminist-led harassment witch-hunts, not in the vast right-wing conspiracy. This should be an occasion to push for the replacement of current laws with a civil tort based on personal injury rather than sexual discrimination, and limited to the extortion of sexual favors and other serious abuses. But will political convenience get in the way? I asked Anita Blair if the appearance of conservative support for sexual-harassment laws posed any danger. "Well, I don't think there's any more danger," she said. "I don't think there's much more bad that can happen in this area of the law." Even accepting this argument, surely there is at least the danger that conservatives will undercut their ability to criticize existing laws and policies. It would be ironic if, just as Bill Clinton and his feminist cronies are stripping cultural legitimacy from the sexual-harassment crusade, his conservative critics were to give it a boost.

Miss Young is a research associate at the Cato Institute. Her book, Ceasefire: Why Women and Men Must Join Forces to Achieve Equality, is forthcoming from the Free Press (February).

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