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FEMINIST JURISPRUDENCE: Equal
Rights or Neo-Paternalism?
by Michael Weiss and Cathy Young
This article is reposted with permission of the CATO
Institute.
Cato Policy Analysis No.
256 June
19, 1996
Michael Weiss, a 1992 graduate of the University of Texas Law School, is
an adjunct professor at the University of Houston Law Center and a fellow
at the Texas Public Policy Foundation. Cathy Young is an associate policy
analyst of the Cato Institute, a columnist with the Detroit News, and
author of Gender Wars (The Free Press, forthcoming).
Executive Summary
In the past decade, feminist legal theory has become a formidable presence
in many of America's top law schools. Feminist activism has also had a
major impact on many areas of the law, including rape, self-defense,
domestic violence, and such new legal categories as sexual harassment.
However, the ideology of legal feminism today goes far beyond the original
and widely supported goal of equal treatment for both sexes. The new
agenda is to redistribute power from the "dominant class" (men)
to the "subordinate class" (women), and such key concepts of
Western jurisprudence as judicial neutrality and individual rights are
declared to be patriarchal fictions designed to protect male privilege.
Many feminist-initiated legal reforms have addressed real wrongs, such as
the tendency to treat rape victims more harshly and suspiciously than
victims of other crimes, and inadequate protection for victims of domestic
violence. But feminist pressure has also resulted in increasingly loose
and subjective definitions of harassment and rape, dangerous moves to
eviscerate the presumption of innocence in sexual assault cases, and a
broad concept of self-defense in cases of battered wives that sometimes
amounts to a license to kill an allegedly abusive spouse.
Courts and legislatures should resist efforts to limit individual rights
in the guise of protecting women as a class, and reaffirm the fundamental
principle consistent with the classical liberal origins of the movement
for women's rights: equality before the law regardless of gender.
Introduction
In May of 1992, Project P, an anti-pornography police unit covering
Toronto and Ontario, seized a lesbian magazine, Bad Attitude, from Glad
Day Books under a new law banning material that "subordinates,
degrades, or dehumanizes" women. To comply with the Canadian Supreme
Court's vague criteria defining illegal pornography--criteria based on
American feminist writings--both parties at trial lined up experts to
match wits on such esoteric matters as whether spanking between two
homosexuals was "degrading." [1]
In compliance with rules established in 1985, customs officials at the
Canadian border, along with a "secretive bank of bureaucrats" in
Ottawa, search incoming shipments of books and tapes. They have seized
comic books featuring a lesbian terrorist, Madonna's Sex, and a book
called Woman Hating. The author of Woman Hating is none other than Andrea
Dworkin, the noted American feminist crusading to stamp out
"pornography" in the United States. [2]
In Toronto, Deborah Gallo is marketing a new kind of protection for men to
carry in their wallets: a sexual consent form. [3] The need for legal
protection is seen as stemming from a new law that requires men to
"take reasonable steps" to ensure consent before engaging in any
sexual activity. [4]
These all sound like scenes from George Orwell's 1984 or Margaret Atwood's
dystopian vision of a puritanic theocracy, The Handmaid's Tale. Yet they
are a part of daily life in Canada, where radical feminism has become a
formidable political force. (Canada's two leading feminist groups, the
Women's Legal Education and Action Fund and the National Action Committee,
are not only the most active special-interest organizations in Canada but
the most generously subsidized by the government, getting a combined total
of over $4 million between 1983 and 1991; from 1986 to 1991, the
government-funded Women's Program provided over $500 million to various
feminist groups.) The Canadian experience, which American radical
feminists hold up as a model for their own domestic goals, may prove to
have great relevance to American politics and law. [5] The new
"women's agenda," which has strong backers in both houses of
Congress, should alarm traditional liberals and libertarians who seek to
strengthen individual liberties in te social and personal spheres and
expand the scope of privacy and freedom of choice.
The Rise of Feminist Jurisprudence
The liberal feminism inherited by the women's liberation movement of the
1960s was based on emancipatory theory and sought to dismantle the
positive legal barriers that had denied women equal opportunity with men.
The theory behind those goals was that the rights of individuals as
traditionally understood in a liberal society should transcend gender
differences. [6] This brand of legal feminism was in many ways exemplified
by Ruth Bader Ginsburg, now associate justice of the Supreme Court, who
said in a 1988 speech, "Generalizations about the way women or men
are . . . cannot guide me reliably in making decisions about particular
individuals." [7] As general counsel of the American Civil Liberties
Union's Women's Rights Project in the 1970s, Ginsburg challenged laws that
gave health benefits to wives of servicemen but not to husbands of
servicewomen and prohibited women from engaging in certain types of
business (such as running a bar) without a male co-owner. Feminists were
also involved in efforts to overtrn legal restrictions on contraception
and abortion.
The illiberal feminist legal theory (also known as "radical
feminism"), which emerged during the 1980s, urges women to renounce
traditional notions of rights and justice, now viewed as perpetuating male
dominance. Some of the new feminists charge that the reforms achieved by
"equality feminists" have dismantled protections beneficial to
women while doing nothing to eliminate their disadvantages. [8]
For radical feminists, the key concept is "patriarchy," the
male-dominated social structure. [9] Patriarchy is perceived to be as
all-encompassing and all-infecting as the Communist conspiracy of earlier
days. Hence, even such liberal principles as neutrality of the law,
equality, and individual autonomy must be discarded because of their
"patriarchal" roots. [10] The new feminism attempts to replace
those notions with a new breed of philosophy and jurisprudence premised on
"connection" between persons. [11] Law is seen as an instrument
to "change the distribution of power," which requires not equal
treatment but "an asymmetrical approach that adopts the perspective
of the less powerful group with the specific goal of equitable power
sharing among diverse groups." [12]
The first steps toward the implementation of feminist jurisprudence on a
national scale have taken place in Canada, though not without assistance
from American feminists: when the Canadian Women's Legal Education and
Action Fund (LEAF) drew up its arguments for the Supreme Court obscenity
case, it turned to American law professor Catharine MacKinnon to help
write its appellate brief. (It appears that MacKinnon and her supporters
are using Canada as a testing ground in the hope that favorable rulings
there will validate her widely criticized theories and soften U.S. courts
with their precedent.) Another American feminist who wields great
influence in Canada is Lenore Walker, whose role in pioneering the
"battered wife syndrome" was commended by the Canadian Supreme
Court in a key decision upholding that defense. [13]
The roots of the radical feminist legal revolution are in American law
schools, where feminist jurisprudence is now a strong and ubiquitous
presence. "Over the next quarter century," says Professor
Laurence Tribe of Harvard Law School, "feminist legal theory is
likely to be the most fertile source of important insights in the
law." [14] In 1991, Fred Strebeigh reported in the New York Times
Magazine that "most law schools in America now offer courses taught
by professors concerned with feminist legal theory." [15] By 1990,
there were at least eight law reviews devoted exclusively to feminist
issues, with more appearing every year. Hundreds of articles of the same
persuasion have appeared in mainstream law journals, especially the most
prestigious ones. A 1990 bibliography of book and articles on women and
the law occupied 70 pages. [16] In another sign of its ascendancy,
feminist theory was the principal subject of the national conference of
the American Bar Association in 1992.
The influence of feminist legal theory is not confined to academia. Now,
its converts are graduating from law schools. They are clerking for
judges, working as congressional staff members, and moving into other
positions of influence. That is certain to have a profound impact on the
nation's legal framework.
Free Speech
By the 1970s, American jurisprudence had reached the consensus that speech
may be regulated by the government only under a very limited number of
circumstances.
·"Clear and Present Danger": The government may penalize speech
that poses a "clear and present danger" of inciting behavior
that a legislature could criminalize. [17] It may not penalize speech that
advocates unlawful behavior but does not pose a threat of "imminent
lawless action." [18]
·Libel: The government may regulate certain libelous speech, stemming
from the common-law refusal to protect false statements of fact. This
limitation requires a showing of malice--knowledge that the statement was
false or reckless disregard of whether or not it was false. [19] Truth is
allowed as a defense. [20]
·Commercial Advertising: On the same grounds, the government may exert
some control over commercial advertising. [21] Only untruthful or
misleading speech with no purpose other than to propose a commercial
transaction is subject to this regulation. [22] Even here, the law
recognizes that the value of free speech is not limited to political
debate but extends to the free flow of any ideas. [23]
·Obscenity: For an expression to be obscene, it must: 1) appeal,
overall, to the prurient interest; 2) contain patently offensive
depictions or descriptions of specified sexual conduct; and 3) on the
whole, have no serious literary, artistic, political, or scientific value.
[24] Before the Supreme Court set down this standard in 1973, states had
used obscenity laws to ban such books as Theodore Dreiser's An American
Tragedy and D. H. Lawrence's Lady Chatterley's Lover. [25] In the last two
decades, very few materials have been banned as obscene.
·"Fighting Words": In Chaplinsky v. New Hampshire (1942),
affirming the conviction of a Jehovah's Witness who called a city marshal
a "damned Fascist" and upholding a statute that penalized
"offensive or derisive names" to annoy another, the Supreme
Court ruled that words likely to cause violence were not protected by the
First Amendment. [26] No conviction based on "fighting words"
has been upheld since Chaplinsky. [27] Indeed, the Court has reversed
several convictions under similar statutes. [28] The doctrine is now seen
as "a quaint remnant of an earlier morality" incompatible with
"the principle of free expression." [29]
The concept of vagueness and overbreadth is a strong and uniquely American
strain of jurisprudence. A law is void if "it is so vague that
persons 'of common intelligence must necessarily guess at its meaning and
differ as to its application,'" allowing "arbitrary and
discriminatory" enforcement. [30] "Overbreadth" means that
statutes must be carefully drafted to avoid encroaching on
constitutionally protected speech. In 1972, striking down a Georgia
statute that criminalized the use of "opprobrious" or
"abusive" language, the Supreme Court warned that
"government may regulate in the area only with narrow
specificity." [31]
The narrow reach of exceptions to constitutional protection for speech
underscores the value placed on all forms of expression in the American
tradition. As Justice Oliver Wendell Holmes noted, "The best test of
truth is the power of the thought to get itself accepted in the
competition of the market." [32] Traditionally in this country,
attempts to restrict speech (whether insults directed at persons in
authority or sexually graphic materials) came from the Right. Indeed,
censorship laws were often used against feminists: birth-control advocate
Margaret Sanger was prosecuted and saw her writings suppressed under the
Comstock Act, which made it illegal to send through the mail any
"obscene, lewd, or lascivious" printed or visual materials,
including birth-control information. Yet today, the broadest and most
relentless assaults on free speech come from radical feminists determined
to quash "harassing" or "degrading" speech. Through
the use of civil rather than criminal law for purposes of censorship, and
undr the guise of legislating equality, large areas of speech are becoming
per se illegal, unbeknownst to the majority of Americans. [33] The target
this time is not a pervasive Communist conspiracy but a collection of far
more ubiquitous enemies: the sexual harasser, the insensitive college
student, the consumer of pornography.
Sexual Harassment
Catharine MacKinnon, a feminist lawyer and scholar and now a professor at
the University of Michigan School of Law, spearheaded the first major
court victory of radical feminist jurisprudence. In 1986, in Meritor
Savings Bank v. Vinson, the United States Supreme Court adopted her theory
that women should be able to sue an employer for sexual harassment based
on a "hostile work environment." [34] In contrast to earlier
cases in which employers were found liable for sexual harassment because
they pressured employees for sexual favors, in Vinson the Court held that
the employer need do nothing to be liable and that there was no need for
anyone else to have made sexual demands.
The problem of sexual imposition on women by male bosses is hardly a new
one; the plight of innocent factory girls or maids being preyed upon by
employers was a subject of much concern (and prurient interest) in the
nineteenth century, though not a target for legal action. As women entered
the workforce in great numbers in the 1970s and sought equal career
opportunities, the issue of the burden imposed upon them by sexual demands
became a more prominent one. The term "sexual harassment" came
into use around 1975. [35]
In some early cases, female plaintiffs were able to combat unwanted sexual
overtures in the workplace by using the common-law remedies of tort and
contract. [36] Yet in formulating her theory MacKinnon expressly rejected
the common-law approach because of what she saw as "the conceptual
inadequacy of traditional legal theories to the social reality of men's
sexual treatment of women." [37] Her main objection to a tort remedy
was that it would treat sexual harassment as a personal affront rather
than systemic persecution of women as a gender: "By treating the
incidents as if they are outrages particular to an individual woman rather
than integral to her social status as a woman worker, the personal
approach . . . fails to analyze the relevant dimensions of the
problem." [38] MacKinnon also felt that labeling harassment a breach
of contract would subject women to male standards of behavior and limit
the scope of the law to exclude most speech offenses. [39] Instead, she
wanted the courts to classify both sexua extortion and verbal
insensitivity as a form of sex discrimination, already prohibited under
Title VII of the 1964 Civil Rights Act.
Initial attempts to apply this theory were rejected. In Corne v. Bausch
& Lomb (1975), [40] in which two women claimed that sexual advances by
their supervisor had driven them to quit their jobs, Judge Frey found that
such behavior was not actionable under Title VII. His decision, and some
other rulings of the time, noted that unlike discrimination in hiring,
sexual overtures from supervisors or coworkers were personal actions, not
company policy. Moreover, such overtures could be made toward a man (by a
man or a woman) or toward men and women equally (by a bisexual
supervisor).
However, before too long proponents of the
sexual-harassment-as-discrimination theory scored their first victories.
In 1976, the federal district court for the District of Columbia accepted
their view in Williams v. Saxbe. [41] The following year, the Court of
Appeals for the D.C. Circuit became the first appellate court to find that
sexual harassment was indeed sex discrimination. [42] Finally, in 1986,
the Supreme Court decided Vinson, adopting the most expansive part of
MacKinnon's theory: that sexual harassment "sufficiently severe or
pervasive" to create "an abusive work environment" is
illegal even if sexual demands are not linked to concrete employment
benefits. [43] The court further went along with MacKinnon's theory by
finding that "'voluntariness' in the sense of consent" is not a
defense to a sexual harassment charge. MacKinnon summed up, "What the
decision means is that we made this law up from the beginning, and now
we've won." [44]
Some dissenting voices have continued to criticize the radical paradigm of
sexual harassment as sex discrimination, arguing for a return to the
common-law structures of tort and contract in handling such claims. [45]
The common-law system is more than just a method of resolving legal
disputes one case at a time; it embodies basic historical principles such
as neutrality, objectivity, and equality before the law. As legal
philosopher Karl Llewellyn put it "Cases . . . build and become
stones for further building." [46] The evolutionary nature of the
common law ensures that it is drawn in the direction of greater fidelity
to those basic principles yet is sufficiently flexible to meet the demands
of new social problems.
Once the tort and contract approach had been jettisoned, the problem that
arose after Vinson was how to define harassment. The National Organization
for Women defines it as
any repeated or unwanted sexual advance, sexually explicit derogatory
statements, sexually discriminatory remarks that cause the recipient
discomfort or humiliation. . . . [47]
Given this broad category, it is not surprising that many feminists claim
85 percent of all women have been sexually harassed in the work force at
some point in their lives. [48] That degree of vagueness in a statute
would never pass constitutional muster. It is comparable to replacing
speed limits with a law under which one could be fined for driving through
a neighborhood at any speed which made some of its residents
uncomfortable. "Discomfort" as the test of harassment is not
only broad enough to outlaw many forms of previously legal speech but is
also too subjective. According to one text, "Whether harassment has
occurred is truly in the 'eye of the beholder'--or the ear. . . . The
deciding factor is the feelings a particular phrase, gesture, or behavior
evokes in the individual on the receiving end." [49]
The imposition of restrictions on such a large class of speech in the
workplace angered several civil liberties groups, but that has done little
to stem radical feminist influence on judicial thinking. [50] A major step
in the direction of remaking the law in the neo-feminist image occurred
early in 1991 (nearly a year before the testimony of Anita Hill at the
Clarence Thomas confirmation hearings brought the issue of sexual
harassment to the forefront of public consciousness). In Ellison v. Brady,
the Ninth Circuit Court of Appeals in California abandoned the traditional
test for offensive conduct--the "reasonable person"
standard--and substituted a "reasonable woman" test, dealing yet
another blow to common-law construction. [51]
In its ruling, the Ninth Circuit panel drew on legal feminist texts for
the proposition that "men tend to view some forms of sexual
harassment as 'harmless social interactions to which only overly sensitive
women would object'" and that "because of the inequality and
coercion with which it is so frequently associated in the minds of women,
the appearance of sexuality in an unexpected context or a setting of
ostensible equality can be an anguishing experience." [52] The court
stated:
We . . . prefer to analyze harassment from the victim's perspective
[which] requires . . . an analysis of the different perspectives of men
and women. Conduct that many men consider unobjectionable may offend many
women. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 898
(1st Cir. 1988). ("A male supervisor might believe, for example, that
it is legitimate for him to tell a female subordinate that she has a
'great figure' or 'nice legs.' The female subordinate, however, may find
such comments offensive"). . . . We adopt the perspective of a
reasonable woman primarily because we believe that a sex-blind reasonable
person standard tends to be male-biased and tends to systematically ignore
the experiences of women. [53]
The court found that behavior that would seem trivial to a man could be
quite harmful to a woman because "women who are victims of mild forms
of sexual harassment may understandably worry whether a harasser's conduct
is merely a prelude to violent sexual assault." [54] Thus, even
"well-intentioned compliments by co-workers or supervisors"
might be sufficient to bring a lawsuit based upon this new legal
definition of sexual harassment if a "reasonable woman" could
find them offensive, reversing an almost century-long march toward a more
expansive view of free speech rights. [55] The court also uncritically
embraced the neo-feminist notion that men and women do not and perhaps
cannot see the same events similarly, gutting the concept of neutrality
under the law. Ironically, it was in part the earlier wave of
"equality feminism" that led to the abolition of most
traditional laws against indecent speech directed at women. As recently as
May 1993, the South Carolina Supreme Court struck down a law making it a
misemeanor to communicate "any obscene, profane, indecent, vulgar,
suggestive or immoral message" to a woman or girl: "Statutes . .
. that distinguish between males and females based on 'old notions' . . .
that females should be afforded special protection from 'rough talk'
because of their perceived 'special sensitivities' can no longer withstand
equal protection scrutiny." [56]
In March 1991, applying the reasonable-woman standard, a federal district
court in Jacksonville, Florida, found a working environment at a shipyard
abusive and in violation of civil rights laws because of nude pinups on
the walls and frequent lewd remarks. [57] To buttress his findings, Judge
Howell Melton quoted several feminist law articles. There was no evidence
of obscene language or sexual demands being directed at the plaintiff,
Lois Robinson--although, after she had complained about sexually explicit
materials at work, some of the male employees retaliated by posting a
"Men Only" sign in one area and by leaving abusive graffiti at
Robinson's workstation. Here are the main elements of the "hostile
work environment" found by the court:
A Whilden Valve & Gauge calendar for 1985, which features Playboy
playmate of the month pictures on each page. The female models in this
calendar are fully or partially nude. In every month except February,
April, and November, the model's breasts are fully exposed. The pubic
areas are exposed on the women featured in August and December. Several of
the pictures are suggestive of sexually submissive behavior. . . . Among
the remarks Robinson recalled are: "You rate about an 8 or a 9 on a
scale of 10." She recalled one occasion on which a welder told her he
wished her shirt would blow over her head so he could look, 1 T.T. at 126,
another occasion on which a fitter told her he wished her shirt was
tighter . . . an occasion on which a foreman candidate asked her to
"come sit" on his lap, and innumerable occasions on which a
coworker or supervisor called her "honey," "dear,"
"baby," "sugar," "sugar-booger," and
"momma" instead of calling her by her name. [58]
Although the plaintiff felt sexually harassed, other female workers said
that they did not. To the judge, however, that merely provided additional
evidence of victimization: "For reasons expressed in the expert
testimony . . . the Court finds the description of [their] behavior to be
consistent with the coping strategies employed by women who are victims of
a sexually hostile work environment." [59] In light of that, it is
difficult to imagine how any behavior with sexual overtones could escape
classification as harassment--defined by the reaction of the most
sensitive woman, even if she is the only one who takes offense.
This is not to say that Lois Robinson was hypersensitive. The Jacksonville
Shipyard, as described in the record, appears to have been a working
environment that most women, and probably a good many men as well, would
have found an unpleasant place to work. Traditionally, however, the law
has posited that when a person takes a job in what is known to be a rough
environment, she or he willingly assumes the risk of being offended. While
such an approach arguably limits some people's choice of jobs, it avoids
the intrusiveness of the government regulating the mental comfort level of
a workplace.
Judge Melton ordered all pinups, sexually oriented remarks, and sexually
explicit magazines banned from the workplace, even in the men's locker
room. [60] The decision was perceived by many as a green light for an
expanded attack on offensive speech and images, and sparked similar suits.
Several women suing Stroh Brewery Company for harassment by male coworkers
(which they claimed included lewd touching, indecent exposure, and sexual
demands) added to their suit a complaint that the company's use of
seminude female images in its ads, particularly the "Swedish bikini
team" promotional campaign, contributed to a hostile environment.
[61] (In November 1993, a judge ruled that the advertising could not be
used as evidence in the harassment suit.)
Under the guise of combating sexual harassment, radical feminists have
imposed a speech regime that the Supreme Court of the 1930s would not have
allowed. In Ellison, the Ninth Circuit panel suggested that women's
sensitivities were not only "special," but might become further
refined with the passage of time. Thus, even employers who have taken
steps to stamp out any workplace conduct that might not pass muster with
the "reasonable woman" should not rest on their laurels:
We realize that the reasonable woman standard will not address conduct
which some women find offensive. Conduct considered harmless by many today
may be considered discriminatory in the future. Fortunately, the
reasonableness inquiry which we adopt today is not static. As the views of
reasonable women change, so too does the Title VII standard of acceptable
behavior. [62]
There is no doubt that some of the conduct addressed by sexual harassment
litigation would be egregious by most people's standards--sufficiently so
to meet the tort standard applied to intentional infliction of emotional
distress: a "case . . . in which the recitation of the facts to an
average member of the community would arouse his resentment against the
actor, and lead him to exclaim, 'Outrageous.'" [63] (That may even be
true of Ellison, in which the plaintiff had been subjected not merely to
persistent but obsessive and delusional attentions by a coworker, and had
filed a suit only after her attempts to get him transferred to a different
office failed because of intervention by the union.)
However, the label of sexual harassment is being used in increasingly
trivial cases. Since most of the effects of legal theories take place
"in the shadow of the law," many of the most expansive
applications of the new standards have occurred in nonlitigation,
compliance actions. [64] For instance:
·At the Boston Globe in 1993, veteran columnist David Nyhan humorously
taunted another male staffer, who had declined a game of basketball after
work, for being "pussy-whipped." The remark was overheard by a
female staffer who complained about it. Nyhan was assailed in a memo to
the staff by editor Matthew Storin and fined $1,250, to be contributed to
a women's organization. After abject apologies from Nyhan, the fine was
rescinded. [65]
·A senior vice president of the New York City transit authority was
demoted for making a ribald statement over a speakerphone from his
hospital bed. While recuperating from triple-bypass surgery, he said on a
conference call to his office mates that he felt good enough to have sex
on stage with one of them. Unimpressed by his recuperative vigor, transit
authority president Alan Kiepper, enforcing regulations based on new
sexual-harassment rulings, demoted him. Commented Kiepper, "He can't
push this aside by saying it was just a joke. A lot of demeaning things
are said under the guise of being a joke. We have to become more sensitive
to what we say." [66]
Obviously, sexual-harassment laws target not only speech but noncoercive
sexual behavior--another sphere where the lessening of state controls has
been commonly regarded as progressive. Penalizing "unwelcome"
advances even when the initiator has received no sign that they are
unwelcome clearly reduces opportunities for consensual relationships. (As
one young woman writer notes, "The truth is, if no one was ever
allowed to risk unsolicited sexual attention, we would all be solitary
creatures." [67]) University of Southern California law professor
Susan Estrich, considered a mainstream legal scholar, wants to eliminate
the "welcomeness" test altogether, since it implies that women
must express their objections to harassing behavior before they can sue.
[68] Estrich also says that she would have "no objection to rules
which prohibited men and women from sexual relations in the workplace, at
least with those who worked directly for them." [69]
While no formal rules of that kind exist anywhere, it seems that existing
sexual-harassment regulations have had the same effect for many women and
men. A recent New York Times article about romance by electronic mail
quoted a Los Angeles lawyer who had met his future wife in the late 1980s
through a computer forum as saying that such a thing would have been
"much more difficult" today: "With all the sexual
harassment danger, it's a risky business." [70]
In a truly free market, private employers would have a right, absent
contractual agreements to the contrary, to prohibit or ignore employees'
workplace behavior, including crude language or sexual overtures toward
coworkers. In today's political environment, however, courts and
legislatures have restricted the employer's authority over his workplace.
Toward limiting governmental intrusion in the workplace, political
scientist Ellen Frankel Paul has called for replacing the civil rights
model of sexual-harassment-as-sex-discrimination with a tort of sexual
harassment. Paul proposes the following model tort, patterned on that of
intentional infliction of emotional distress
(1) Sexual harassment comprises
(a) unwelcome sexual propositions incorporating overt or implicit threats
of reprisal, and/or
(b) other sexual overtures or conduct so persistent and offensive that a
reasonable person apprised of the conduct would find it extreme and
outrageous.
(2) To be held liable, the harasser must have acted either intentionally
or recklessly and the victim must have suffered, thereby, economic
detriment and/or extreme emotional distress.
(3) In the employment context,
(a) the employer is liable when the plaintiff has notified an appropriate
officer of the company (not himself the alleged harasser) of the offensive
conduct, and the employer has failed to take good-faith action to
forestall future incidents.
(b) the employer is liable, also, when he should have known of the
offending incident(s) (that is, when he failed to provide an appropriate
complaint mechanism). [71]
Such a tort, Paul notes, "would encourage companies to provide an
effective mechanism for dealing with sexual harassment" while setting
the threshold high enough to deter frivolous complaints and requiring
women (and men) who are sexually harassed to object to the behavior before
they can file a suit. [72] It would also give employers reasonable
assurance that an effective mechanism of processing nontrivial complaints
would shield them from lawsuits.
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MENSIGHT
