Can We Talk About Sexual Harassment?

(Patsy Lynch/Rex Features via AP Images)
Herman Cain addresses charges of sexual harassment at the National Press Club yesterday.

We’ve just inched past the 20-year anniversary of the Anita Hill-Clarence Thomas hearings, which electrified the country and educated employers and employees alike about the newly enshrined civil-rights violation called “sexual harassment.” Now Politico brings us another iteration of the did-he-or-didn’t-he game—this time, about Herman Cain.

Here’s what already bothers me about this conversation: It’s all about electoral politics. Will this hurt him with his constituency? How will Cain play this? How will it be played by Fox & Friends? Do Iowa primary voters care?

Unlike that round 20 years ago, this is not going to be a discussion about sexual harassment. Call me a crank, but I think sexual harassment matters.

Let’s recall the origin of the tort. [Insert unforgivably professorial harumph here.] The 1964 Civil Rights Act banned discrimination based on race, color, religion, sex, or national origin, on a variety of fronts. (Don’t you get all misty-eyed just thinking about a Congress that could pass that?) The Act’s Title VII declared it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” on any of the selected grounds.

Awhile back, I interviewed early civil-rights lawyers for former Massachusetts Lieutenant Governor Evelyn Murphy’s book Getting Even: Why Women Don’t Get Paid Like Men—and What To Do So We Will. Here’s what they told me: They were astounded by the flood of allegations of male bosses and coworkers pawing, fondling, coercing, assaulting, and otherwise insisting on sex for hiring, raises, or promotions. In response, second-wave feminists invented the phrase “sexual harassment,” a concept that legal scholar Catherine MacKinnon delineated brilliantly in her groundbreaking 1979 book Sexual Harassment of Working Women. MacKinnon argued that if a female employee (but not a male employee) is subjected to sexual demands or to an environment that is sexually hostile, and if the employer permits this to continue, then the employer has altered the “terms, conditions, and privileges” of employment based on her sex.

In other words: Sexual harassment is a violation of the 1964 Civil Rights Act’s Title VII not because it’s gross or sexual or degrading—although it is—but because it makes it harder for one sex to earn her paycheck.

In 1980, the EEOC wrote MacKinnon’s formulation into its regulations on sex discrimination—and helped bring forward the groundbreaking case Meritor v. Vinson, in which a former bank employee sued the bank because (among other things) her manager had pressured her into a sexual relationship with him to keep her job. The bank argued back that Mechelle Vinson “consented” to dating her VP, and that it couldn’t be held financially liable for something it didn’t know about.

In a landmark 1986 decision—with Justice Rehnquist writing for the court—all nine members of the United States Supreme Court sided with Vinson, and sexual harassment on the job officially became a violation of a woman's civil rights, nationwide. With the Thomas/Hill hearings, understanding of that new tort spread across the nation.

Fun fact, 1: When Clarence Thomas became head of the EEOC under Reagan, the EEOC switched to the bank’s (losing) side. Fun fact, 2: The D.C. Circuit Court of Appeals heard the case en banc before it went up to the Supremes. For 100 bonus points, guess which three judges sided with Clarence Thomas and Meritor?*

Here’s what has remained true over the years: Since the Clarence Thomas debacle, some large corporations have, in what might be an over-response, essentially forbidden all sexual banter on the job, lest they be sued. But sexual harassment has not gone away. And it still destroys a woman’s ability to earn a living. A woman who is being sexually harassed has to fight to retain her job, her bodily privacy, and her sense of her own integrity. If she leaves and sues, she ruins her standing in her field. She rarely wins—studies show that judges overwhelmingly throw out sexual-harassment allegations on summary judgment, before the case ever goes to trial—unless the behavior is so egregious that even the company’s lawyers know that juries will be appalled. It’s not bad jokes or ass-slapping, not oversensitive young flowers blanching at the f-word, but serious threats to a woman’s economic stability. And it’s the company’s liability, not the individual’s.

The harassing individual—say, Herman Cain—might lose his job, or if the behavior is bad enough, face criminal charges. But it’s the company—or if the harasser is the CEO, the board of directors—that has to be held responsible for ensuring that everyone on the job has an equal chance at their paychecks.

As I mentioned last week, studies show that harassers (street harassers, date rapists, or workplace harassers) are generally serial predators, enjoying that feeling of power, impunity, and control. If they do it once, they do it again. If I hear one allegation and no others, well, I suspend judgment: might be true, might not. But if two women come forward to complain, there are often more who feel they can’t afford to lose their jobs, their reputations, or their privacy.

Which is more important: The question of how this will affect Herman Cain’s campaign for the Republican presidential nomination—or the question of how the continuing epidemic of sexual harassment of working women will affect our lives and our paychecks? I have my opinion. I don't have much hope that the national commentariat will agree.

*Fun Fact 2/Answer: On the D.C. Circuit Court of Appeals, Robert Bork, Antonin Scalia, and—can you say “irony?” —Kenneth Starr voted that Meritor Savings Bank should have no liability for what the VP did to his employee Mechelle Vinson.

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