Sexual Harassment?

October 1998

Many gay groups and women's organizations have hailed two recent Supreme Court decisions that expand the definition of sexual harassment. But these are decisions only lawyers could like. By reinforcing the notion that sex is fraught with unique, malevolent, criminal– and increasingly profitable– danger, the court actually retards our arrival at the saner sexual values that would truly advance women's and gay people's status.

In Oncale v Sundowner a man claimed that male co-workers repeatedly harassed and assaulted him. The court held that federal law did not require him to be a woman in order for sex discrimination protections to apply; thus, he– and others– could sue for homosexual harassment. In Burlington Industries v Ellerth a woman who admitted suffering no retribution for turning down sexual advances won the right, nonetheless, to sue her employer for not more pro-actively protecting her from unwanted sexual attention even though she endured no tangible harm.

Given that women and gay men have often been treated badly in the workplace, it may seem tempting to endorse any legal decision that seems to afford them a chance at revenge. But what makes women and gay men vulnerable in the first place? They are disproportionately harmed by attitudes that freight sex with an importance and destructiveness it need not carry. Instead of making sex even more legally dangerous, all workers would be better off if we focused on dealing with sexual matters more rationally and less as unique sorts of interaction demanding special protections.

A more sensible approach to sex would treat it with the same rules we use to govern other interactions. A boss or co-worker who sought contributions to his or her pet charity might be seen as annoying, but they shouldn't suffer legally unless their solicitation carried the threat of reprisal against non-givers. A superior or colleague who issued repeated invitations to church services might be deemed a pest, but unless their proselytizing was reinforced by retaliation, no legal recourse should be necessary. And similarly, someone who makes miscalculated sexual advances might be thought a creep, but they shouldn't thereby be branded a criminal.

We are all called upon to deal with others' boorish behavior, but oafs should suffer social opprobrium, not criminal penalty. Of course, any interaction that threatens harm or involves physical assault remains a proper subject for the law. But it is not the incidental sexual aspect of an action that establishes liability; it is the threat of harm or actual assault that has the potential to transform any sort of interaction– sexual or not– into a crime.

The current direction of sexual harassment law insists on more and more "ladylike" treatment of everyone; sexuality itself is seen as proof of wrongdoing. This approach has never served "ladies" well, though it is superbly designed to enrich lawyers (who write and interpret the laws) since sexual dynamics underpin so many of our day-to-day interactions. And successful suits award big bucks, so people are powerfully encouraged to recast themselves as sexual victims. Strong, new financial incentives can now exacerbate irritating behavior into perceived life-wrenching trauma.

Those interested in making lasting change in the status of women and gay men will understand, though, that real progress comes not from laws that penalize unladylike behavior. True success comes, instead, from freeing us all from the notion that being treated sexually is in itself bad or degrading. By embracing more rational sexual values, we can stop this financially-driven legalistic nonsense and all get back to work– and play!

Pasted from <http://guidemag.com/magcontent/invokemagcontent.cfm?ID=064C6339-125A-11D4-A7AB00A0C9D84F02>