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 Harassment
For All…
From protecting the vulnerable to blanketing all anti-discrimination…
[by Bruce S. Thornton] 2/15/06
Even as the
ACLU frets over the privacy of people chatting with Al Qaeda
on their cell phones or googling bomb-making instructions on
public library computers, a more serious threat to civil liberties
and personal freedom has long been institutionalized in our
society. I’m talking of sexual harassment law, which
has evolved into an Orwellian form of thought policing that
subjects individuals and their relations with each other to
the coercive power of the state.
Most people
assume sexual harassment is about reining in cheesy lotharios
who grope their colleagues in the mailroom or traffic in sexual
quid pro quos. However, sexual harassment law goes far beyond
such behaviors, which most of us agree obviously need to be
discouraged and punished. But because of the subjective elasticity
of the terms used in sexual harassment law, a whole range of
other behaviors, many not having much to do with sex per se,
are now subjected to the investigative and punitive powers
of the state.
Indeed, “sexual harassment” is a glaring misnomer
for the vast territory that the law now encompasses. Sexual harassment
law is in reality anti-discrimination law. Consider the following,
from the Chancellor of the California State University system
Charles Reed’s Executive Order 927, issued in January “in
response to recent legal and legislative developments in the
area of anti-harassment laws”: “Harassment occurs
when unwelcome conduct is engaged in because of a protected status
of an individual, which include [sic] race, color, religion,
national origin, ancestry, age, sex, sexual orientation, marital
status, veteran status, physical disability, mental disability,
or medical condition.” In other words, just about everybody
is now a potential victim.
The problem with this expansion of the victim-pool
is that the other condition necessary for a valid harassment
complaint involves
subjective judgments limited only by the number of possible complainants,
which is to say there are no limits: “Such conduct is so
severe or pervasive that its effect, whether or not intended,
is a work environment that could be considered by a reasonable
person in the shoes of the individual, and is in fact considered
by the individual, as intimidating, hostile or offensive.”
“Severe,” “pervasive,” “reasonable,” “intimidating,
hostile, or offensive”––interpretations of
the meaning of these words will be as numerous as the number
of people in your office. Such terms are subjective, relative,
contingent, and even arbitrary, their force dependent on nothing
other than the perception of the alleged victim. This person
can be hypersensitive, neurotic, stupid, or vicious, yet his
or her definition of the law will set the standard for tripping
an investigation.
Nor is the “reasonable person” limit much help,
for notice that such a person is strictly qualified as someone
who is “in the shoes of the individual.” In other
words, if a homosexual is making the complaint, the standard
of reasonableness will not be a global one, nor even one that
all homosexuals endorse, but one that the individual homosexual
in that specific circumstance holds. So too with women, ethnic
minorities, the handicapped, and every other category: each victim
is assumed to have his or her own standard of reasonableness––which
means that someone who is not that person will be incapable of
judging whether or not the conduct is “reasonable” in
those particular circumstances.
The consequence of this expansive subjectivity
is that it becomes very difficult daily to calibrate one’s
words and behaviors given the shifting, elastic definitions
of discriminatory harassment
in play at any one time. Indeed, since the offense is defined
by the perception of the victim, the same person can change the
threshold of offense from one day to the next or from one person
to the next. Finally, since the intent of the alleged perpetrator
is irrelevant, every social interaction is a minefield of possible
offensive behaviors. This reduction of harassment to the subjective
perception of the victim puts into the hands of the disgruntled,
the Machiavellian, or the neurotic a powerful trump card to play
during the normal conflicts, disagreements, and personality clashes
that occur every time a group of people get together to do something.
The dangerous subjectivity of definitions of
legal harassment is indeed acknowledged and accepted by those
who train supervisors
in the law. I know this because I have just taken an on-line
sexual harassment training course. (Because of an agreement between
the CSU and the faculty union, all CSU faculty–– not
just supervisors, as required by recent California law––have
to take two hours of on-line sexual harassment training.) The
course I took is frightening in its implications, for it assumes
as unexceptional or even desirable a workplace half out of Kafka
and half out of Orwell.
Given that harassment lies in the eye of the
victim, the course recommends that all employees constantly
monitor and fine-tune
their conversations and behaviors in order to avoid anything
that could remotely be construed as objectionable to anyone in
the “protected” categories. This advice, of course,
is useless, given that there are so many subjective definitions
of what’s objectionable that the only viable solution is
to avoid most conversation or reduce one’s comments to
banal pleasantries. In workplace discussions individuals will
have to continually practice self-censorship to insure that their
personal way of expressing themselves––with irony,
sarcasm, or humor, for example––is not interpreted
by the thin-skinned, the crazy, or the malignant as “harassment.”
Moreover, the course advises supervisors to take
seriously and report any charge of sexual harassment or discrimination
no matter
how preposterous. Indeed, supervisors should constantly monitor
their workplace and work-related functions and intervene if they
witness or hear anything they even suspect might be sexual harassment. “Contact
the proper university authorities” is the phrase most used
in the course, evoking a world of relentless surveillance redolent
of the old Soviet Union or Castro’s Cuba, where every block
has a commissar whose job is to watch out for deviations from
political correctness.
The result of such a climate is to erode collegiality and poison
relationships with the lurking possibility that the normal disagreements
and conflicts that are part and parcel of normal human relationships
will be redefined as actionable harassment subject to the greater
coercive powers of the institution and the state.
Worse yet, in the context of the university,
academic freedom and the freedom of expression guaranteed by
the Constitution
are seriously compromised. In the training course I took, the
phrase “academic freedom” did not appear once. Reference
was made to the First Amendment, usually to note that it doesn’t
protect behaviors or speech perceived as harassment, a debatable
legal position at best. More depressing is the complete unawareness
of the unique role of the university in providing a protected
space where ideas can be openly discussed and debated no matter
how objectionable.
After all, that is why tenure was created in
the first place: to insure that the university welcomes and
supports the “free
play of the mind on all subjects,” as Matthew Arnold famously
defined the purpose of a liberal education. But how much “free
play” can there be when people are obsessed with monitoring
what they say and how they say it because someone might perceive
it to be objectionable? The phenomenon of political correctness
in the universities has indeed been nurtured and empowered by
sexual harassment law, which adds to the informal means of censoring
speech––shunning, for example––the threat
of investigation and punishment by some powerful institution,
whether that be the university, the state, or a federal office
such as the Equal Employment Opportunity Commission.
Finally, and more broadly, sexual harassment
law embodies a whole set of assumptions diametrically opposed
to those underlying
our republic’s values of personal autonomy and freedom.
The flip side of personal freedom has always and ever been personal
responsibility for negotiating the conflicts that necessarily
arise when people are freer in their actions and speech. Given
the great variety and number of free people and their thresholds
of offensiveness, our words and deeds will frequently be disturbing
to some. But that’s the price we pay for freedom, and it
is our responsibility to be adults and figure out how to get
along in a world where everybody, not just privileged elites,
are given wide latitude for the expression of their ideas. A
truly free and open speech will frequently lack civility or sensitivity
to feeling, for the point of such a debate is not to make people
feel good but to get at the truth and value of ideas. The raucous,
sometimes crude, often offensive nature of democratic speech
was recognized as part of democratic freedom as far back as the
Athenians––which is one reason why elitists like
Plato disliked democracy.
Sexual harassment law takes this responsibility for managing
our free speech and its effects away from individuals, and so
reduces us to children who require institutional nannies to monitor
our behavior and protect the tender sensibilities of people no
matter how unreasonable or neurotic their private standards of
offense are. As such, current sexual harassment law is an insidious
threat to freedom, one much more serious than the temporary intrusions
on the privacy of people suspected of communicating with terrorists.
And that threat, enshrined as it now is in law and legal precedent
and backed up by state power, will be with us for a long time. -one-
copyright
2006 Bruce S. Thornton
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