DEBATING THE LAW
March 25, 1998
The Supreme Court has heard arguments in two cases which could set a major legal precedent concerning liability in sexual harassment cases. Following a background report on the cases before the court, three legal experts debate the how clear the current sexual harassment laws are and whether these laws are improving the treatment of women in the workplace.
ELIZABETH FARNSWORTH: Sexual harassment law in this country has been evolving ever since Title 7 of the 1964 Civil Rights Act forbad workplace discrimination based on race, color, sex, religion, or national origin. In 1991, the issue hit the front pages when Anita Hill charged then Supreme Court nominee Clarence Thomas with sexual misconduct. Since then, the number of sexual harassment cases has almost tripled. With the Paula Jones case and others, sexual harassment is again on the front pages and is engendering debate and raising questions. For more on all this we turn to Vicki Schultz, a professor of law at Yale University; she's the author of the forthcoming Yale Law Journal article "Reconceptualizing Sexual Harassment;" Jeffrey Rosen, Legal Affairs Editor at the New Republic and Associate Professor of Law at George Washington University; and Debra Raskin, a sexual harassment attorney who teaches a course on the subject at Columbia University Law School.
A RealAudio version of this segment is available.
March 25, 1998:
A background report on the two cases before the Supreme Court.
March 4, 1998:
Stuart Taylor discusses the Supreme Court's ruling on same-sex harassment.
September 11, 1997:
A report on the problem of sexual harassment in the U.S. Army.
May 27, 1997:
A report on the Paula Jones sexual harassment suit against President Clinton.
April 29, 1997:
Staff Sergeant Delmar Simpson is found guilty of 18 counts of rape in a military trial.
January 7, 1996:
The Supreme Court considers whether freedom from sexual harassment is a constitutional right.
April 26, 1996
A report on complaints of sexual harassment by women at a Mitsubishi automotive plant.
Browse the NewsHour's coverage of legal issues.
How clear is sexual harassment law?
Debra Raskin, in your view, are the laws that determine and say what is and what isn't sexual harassment clear?DEBRA RASKIN, Sexual Harassment Lawyer: (New York) They're as clear as laws in any other area. The laws generally are not constructed in a way to say two grabs, three grabs, that constitutes sexual harassment. General concepts like severe and pervasive conduct can constitute sexual harassment, are similar too in other areas, obscenity, negligence. Laws across the board are defined generally and applied specifically by the courts. That's no surprise.
ELIZABETH FARNSWORTH: So this is not that unusual, in your point, in your view?
DEBRA RASKIN: No, it isn't, and I find, therefore, that the hue and cry about how is an employer to understand what harassment is, is--I'm not sure if it's crying wolf or what it is--but it really does seem to me to be disingenuous.
ELIZABETH FARNSWORTH: Jeffrey Rosen, do you think the laws are clear?
JEFFREY ROSEN, George Washington University Law School: I can't imagine that anyone could say they are. I mean, it's a remarkable fact that when we think about the totemic examples of harassment that have convulsed the nation, President Clinton, Bob Packwood, and Justice Thomas, even here no one seems sure whether or not it was legally actionable harassment. Gloria Steinem had an interesting op-ed on Sunday in the New York Times suggesting that Clinton was not guilty of harassment but Packwood and Thomas are guilty. But, in fact, when we think about it, I would imagine that none of those three cases, in my view, would rise to a legally actionable standard. And the fact that even as a nation the most dramatic cases can't be sorted out suggests that we have a very serious problem, indeed.
ELIZABETH FARNSWORTH: But, Mr. Rosen, isn't this often true with law, that until the courts rule, people debate it like crazy, and everybody comes down on a different side of it? Is this different?
JEFFREY ROSEN: There's something different about sex. Isn't that what we're learning in the middle of this fascinating Clinton scandal? There's something difficult to define, and there's another difference in this case that makes it unlike ordinary torts, which is that men and women perceive these things very differently. There's lots of empirical evidence that suggests that in one situation a man may think that he's being affectionate and a woman may be quite offended. This is, of course relevant to the question of whether or not women should be compelled to complain. And one of the things I was struck by in the Supreme Court cases today was that at least the school case, the student who was clearly the victim of statutory rape, had never actually objected. So if the tort standard is going to be what would a reasonable person say, and if it turns out that as a nation, men and women can't even agree about what sort of conduct is appropriate, then it's not so clear that a law can give us answers.
ELIZABETH FARNSWORTH: Vicki Schultz, where do you come down on this question of whether there's too much confusion in the law right now for people to know what do ?
VICKI SCHULTZ, Yale University Law School: I think that there is some unclarity, Elizabeth, but I think it's not nearly as egregious or bad as Jeffrey Rosen has suggested. In fact, I think it's very interesting that he's turning to media cases, rather than legal cases, to discuss what might be the complexity or confusion in the law. One of the problems I see is that we as a society have focused on cases like the President Clinton scandal, like the Anita Hill/Clarence Thomas event, and like the thing recently with Sgt. Major McKinney, and this has caused us to have a very broad idea that what sexual harassment means is any kind of sexual misconduct. I think these kinds of media ideas or representations or popular stories, if you will, have filtered their way into the legal system, unfortunately, and there too we are beginning to see, I think, some problems with the courts insisting that conduct be sexual or look like sexual abuse in order to constitute a hostile work environment. So this has encouraged, I think, some overreaching on the part of companies who are nervous about anything sexual that occurs, and yet, by the same token, all kinds of egregious, non-sexual forms of harassment and discrimination are neglected by this focus.
Is there too much emphasis on the sexual aspect of sexual harassment?
ELIZABETH FARNSWORTH: So let me get this clear. You think that the way that it's being--the way it's happening and the way it's being carried out in real life, in real cases, and especially with these very high profile cases, there's too much emphasis on just the sexual aspects of it, is that what you're objecting to?
VICKI SCHULTZ: I think that's exactly right, Elizabeth, that if we look at it as sexual abuse, we're focusing on the symptom, rather than the disease. The disease is sex discrimination in the workplace, not treating women seriously as workers. And that--the forms of disrespect and not treating women as equals on the job can be sexual in nature but more commonly they are not sexual in nature.
ELIZABETH FARNSWORTH: Okay. Debra Raskin, what do you think about that, and do you think that's part of why there's some lack of clarity here, that it's unclear whether this is about protecting women from sexual abuse, or it's about protecting them from gender discrimination in the workplace? It doesn't necessarily have to be sexual.
DEBRA RASKIN: Well, the cases, as I read them, do define both kinds of conduct as sexual harassment. In other words, if it's not sexual in nature but it's harassment, if it's words directed at women, if it's gluing shut their locker, if it's taking away their tools, making them run a gauntlet of difficult work circumstances that men don't have to, I think that has been defined in lots of cases as sexual harassment. I think that sexual overtures also have been, but the Supreme Court has insisted and the lower courts have carried this out, that it be severe and pervasive. So it's not a single dirty joke, and it's not a single naked woman in a poster. And the questions of degrees have been measured by the courts.
Debra Raskin: "People coming forward with complaints doesn't mean that the problem has gotten worse; it just means that people are finally having some ability to come forward and make complaints."
ELIZABETH FARNSWORTH: And, Debra Raskin, in the real world, in the way that courts in the states and the federal courts are deciding these cases, do you think that the cases have had positive effects? Do you think that the cases are making life better for women in the workplace?
DEBRA RASKIN: I do, because if you read some of the early surveys and early social data, I mean, going back to the Redbook Survey in the 1970's, it would tell you that many women experienced sexual harassment and only a very tiny percentage ever complained about it. The statistics of the EEOC charges and people coming forward with complaints doesn't mean that the problem has gotten worse; it just means that people are finally having some ability to come forward and make complaints and, one would hope, get these things resolved.
Jeffrey Rosen: "The problem for sexual harassment law is that much sexual conduct in the workplace is really more discrimination based on sexual attraction than gender discrimination."
ELIZABETH FARNSWORTH: Okay. Jeffrey Rosen, both on the point that Vicki Schultz brought up about this perhaps getting too much concentrated on sex and also whether in real life this is improving people's lives, comment on both.
JEFFREY ROSEN: I must object to Professor Schultz's notion that it's only in media cases that we're confused about what harassment is. It was remarkable that at the Supreme Court today Chief Justice Rehnquist actually began by asking in the school case, this is obviously appalling, it's criminal conduct, but how is it discrimination based on sex? Now, the great insight and contribution of Professor Schultz's fascinating article is to remind us that core gender discrimination is really what Title 7 was about. The problem for sexual harassment law is that much sexual conduct in the workplace is really more discrimination based on sexual attraction than gender discrimination per se, and that's why even in both Supreme Court cases, and this is why it's not just media cases, Chief Justice Rehnquist suggested that maybe statutory rape is not gender discrimination and the city of Boca Raton continues to insist its lifeguards were not the victim of gender discrimination. It's a conceptual flaw at the center of sexual harassment law. It's not a trivial problem, and it's not at all obvious what the solution is.
ELIZABETH FARNSWORTH: Okay. Explain the central flaw again, just clarify that a bit for us.
JEFFREY ROSEN: Title 7 prohibits discrimination based on sex. Sexual harassment law claims that sexual expressions, even an unwanted advance that creates an intimidating, hostile environment, is a form of gender discrimination. But it's not so clear. Assuming that a supervisor has an exemplary record with most women in his workplaces, but just singles out a single one, and makes an advance toward her, even if he threatens retaliation in exchange for the advancement, the form of quid pro quo harassment, which we don't like at all, it's hard to say that even that is gender discrimination. So my intuition, I think, and I'm informed by Professor Schultz's interesting article, is that maybe we need a pattern of advances or even quid pro quo threats toward a whole number of women in the workplace. And that's why not Paula Jones and not Anita Hill and also not even the woman in the Texas school was the victim of gender discrimination in the workplace.
ELIZABETH FARNSWORTH: Okay. What about that, Ms. Schultz?
VICKI SCHULTZ: Thank you for the chance to respond. Jeffrey Rosen, let me just say that when I'm talking about the media cases, my point is that when the courts go to apply the standard of whether the conduct has risen to the level of being sufficiently severe, or pervasive to constitute hostile work environment harassment, they, like anyone else, is influenced by what the popular culture thinks of as particularly severe and shocking conduct. So my critique is not so much that we're just focusing on the media cases to the neglect of the law but that the way we talk about sexual harassment in popular culture affects what judges, in turn, think of as shocking and terrible conduct, so that the Paula Jones case, for example, becomes a plausible case because people say, oh, my goodness, if someone makes a clumsy, salacious sexual advance, that must be sexual harassment. Let me turn to your second point, though, which is, why we should think about sexual harassment as sex discrimination. I think that there is some confusion in the early quid pro quo case law on this point.
ELIZABETH FARNSWORTH: Just explain quid pro quo quickly.
VICKI SCHULTZ: Thank you. Quid pro quo is the type of harassment that we could refer to colloquially as put out or get out. The person is fired or subjected to bad job consequences if they refuse to sleep with their boss. Now, early on in the history of Title 7, courts had to think about whether or not what it was about those situations that made them sex discrimination. And some courts said that it rested on the sexual advance, itself; that if a heterosexual male made an advance toward a woman, that was based on sex because he would not have made the same advance toward a man. I think that there are other kinds of ways that we could talk about why quid pro quo harassment constitutes sex discrimination. And let me take a rough stab at it here, although this is not something I've done in my forthcoming article. It's not the advance, itself. It's the willingness and the presumption that a boss would punish someone for not sleeping with him on the job. That's what makes it employment discrimination. It's not the advance, itself. Women workers are frequently subjected to all kinds of petty, paternalistic forms of authority on the job, and they don't include only being punished for sexual advances. But that is one such form.
ELIZABETH FARNSWORTH: Debra Raskin, respond to that, if you want to, and also, how do you respond to people who say, these matters should not be made subject to law, these are too intimate, women have to learn to take care of this themselves, they can, they don't need to be protected by the law?
DEBRA RASKIN: Well, let me say this. The notion that just because a manager hits upon one woman it is not sexual discrimination is very strange. You don't have to prove in a hiring case, in a firing case that a manager discriminated against all women or even multiple women in the workplace. If he's extracting sexual conditions, either the actual favors or continually giving sexual comments, that is making her work environment different from a man. That's discrimination. That's differential treatment. And I don't see why that is so hard to understand. The issue of why we need laws to protect women from this is simply because prior to the enactment of such laws, prior to the recognition of this kind of conduct, women had to run a gauntlet of abuse in many workplaces. You read these cases, and you literally want to throw up reading about the different environments where dirty pictures are posted, where jokes are told all the time, where women are referred to by their body parts. I mean, this is not a game. This is deadly serious, and it interferes dramatically with women's ability to work. And we can't depend upon the kindness of strangers to fix it up.
What can be done to clarify sexual harassment law?
ELIZABETH FARNSWORTH: Okay. Jeffrey Rosen, you've already suggested what you would change a little bit. Given the problems you see in sexual harassment law what do you think should be done?
JEFFREY ROSEN: The real notion is that many of the things that upset us perhaps are not a form of gender discrimination. So quid pro quo harassment might well be covered by state tort law. The--
ELIZABETH FARNSWORTH: In what way? Clarify that.
JEFFREY ROSEN: We could have states forbid the use of threats to exact sexual favors. It's a form of coercion. One interesting thing that we've learned is that many of the things that are being litigated nowadays are illegal under other forms. Everyone conceded that the poor schoolgirl was the victim of statutory rape and so forth. I think here's the basic--
ELIZABETH FARNSWORTH: But what's the difference? There are still laws that are outlawing certain forms of sexual misconduct?
JEFFREY ROSEN: What's the difference, of course, is the liability rules. Under certain state torts, you can't get compensatory damages and punitive damages and attorneys fees, which is why there's a great incentive to bring these cases under federal law. The basis question that's been posed and Professor Schultz helps us think about it, but I think none us right now has very crisp answer, is whether or not we want to continue to think about sexual expression in the workplace as a form of gender discrimination or whether really given the risks of chilling all sorts of speech that should be protected, the costs of this entire experiment are greater than they're worth.
ELIZABETH FARNSWORTH: Was that the way you would define the question, Vicki Schultz, or not?
VICKI SCHULTZ: No, actually not at all, Elizabeth. I think that there is more need than ever for protection from hostile work environment harassment and quid pro quo harassment. I would only urge people with respect to particularly hostile work environment harassment, which is the most unclear of the two causes of action, to not think about it solely as a form of sexual attraction or sexual abuse. In workplaces all over America every day women go to work, and they're told that they have no right to be in the job because it's a man's job, and they should be home with their kids. And they are subjected to a whole host of sexual and non-sexual forms of abuse. Now, this is exactly the kind of thing that Title 7 was enacted to prevent. Congress's main purpose in enacting Title 7 was to make sure that the men and women alike have access to all the different forms of work in our society; that no one owns any form of work. And so I would just caution courts, commentators, and everyone in our society to think more broadly about the kinds of conduct that can make workplaces difficult.
ELIZABETH FARNSWORTH: Okay. Okay. Thank you all very much for being with us.