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Time to Redefine Sexual Harassment

The Supreme Court, in its current term, is scheduled to address four cases focussing on sexual harassment.

In effect, it will be seeking to clarify its 1986 ruling that sexual harassment constitutes discrimination within the meaning of the Civil Rights Act of 1964.

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The issue, of course, has implications for President Clinton, embroiled in litigation involving his relations with women. But let us, for the moment, pursue the legal rather than the personal and political aspects of what has become a subject of great controversy.

For an understanding of how the president and several women came to lose their privacy protection I am indebted to articles by Jeffrey Toobin in The New Yorker and Jeffrey Rosen in The New Republic.

In the early days of our republic, prying into sexual privacy was considered a prime example of unreasonable searches that the Fourth Amendment was intended to prevent. But then, in 1964, sexual harassment law was invented almost by accident.

In the debate over the Civil Rights Act, Dixiecrat Rep. Howard Smith of Virginia, in an effort to sink the ban on racial discrimination, introduced a last-minute amendment, Title VII, banning discrimination against women as well. It passed.

Over a period of years, coinciding with the rise of the feminist movement, sexual harassment came to be identified with sex discrimination. But it could be argued that this is not necessarily so.

In the sense of equal employment opportunity, which is what the Civil Rights Act is about, a sexual approach by a man - or a woman, for that matter - does not necessarily lead to discrimination. Many a woman has rebuffed a fellow worker or even a superior without suffering reprisal.

There is no evidence, for example, if as she claims, Paula Jones rejected an advance from Governor Clinton, that she was punished for doing so. But the conventional legal wisdom has become, as defined by University of Michigan Prof. Catherine MacKinnon, that "consent is a myth; that any sexual advance is harassment and a violation of the law."

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In combination with the operation of the independent counsel law, the Paula Jones civil suit has become a lethal mixture, for it renders any woman - even the widow of the late Ambassador Larry Lawrence - open to subpoena seeking to establish a pattern of Clinton's relations with women. And then, enter Kenneth Starr, the possibility that testimony in the civil suit can lead to a criminal charge of perjury.

In the Yale Law Journal, Prof. Vicki Schultz has now written a groundbreaking article arguing that it is discrimination and not sex that the law should be preventing. If that were the standard, there probably would be no Paula Jones suit, no Monica Lewinsky affidavit, no nation-rocking controversy.

As Jeffrey Rosen put it: "The machinery of the independent counsel has been mobilized to ferret out secrets that never should have been exposed to legal scrutiny in the first place." And "when the privacy of the body politic is violated, we're all brutalized in the process."

* Daniel Schorr is senior news analyst for National Public Radio.

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