Most of us have heard similar stories.
A male manager says something grossly offensive to a female
employee at a meeting. The humiliated woman files suit. She wins her lawsuit
and receives a generous payout.
But then, she can no longer get a job in her business. No
one wants to hire her; she has become radioactive. She has joined the ranks of
the unemployable.
The moral of the story: litigation should not be used as an
instrument for social engineering.
Today’s working women have had their consciousness raised.
They are intensely aware of a large variety of actions that constitute harassment.
They are not only more conscious; they are more sensitive to even minor abuse. Having
been empowered by the legal profession they believe that their grievances
should be heard in court.
At times they win their lawsuits. At times, they lose. On
other occasions they submit their complaints to arbitration.
In all cases they insist that male sexual harassment creates
a hostile workplace environment. Unfortunately, the men who are targeted by
their grievances believe that their behavior—which may or may not be
innocent--has been criminalized, thus creating a hostile workplace environment.
Why have more women around if their presence makes men more
wary of lawsuits?
For lawyers, lawsuits are business. Lawyers make a living
from them. The more lawsuits, the higher their fees. It is in their interest to
define harassment as broadly as possible, the better to gin up their own fees.
At times, harassment verges on criminal assault. At times,
what is perceived as harassment was intended as a jest.
Telling a woman that she must offer sexual favors or miss
out on a promotion feels like extortion. Harassing a woman with repeated phone
calls and text messages requesting sexual favors or even a date verges on
stalking.
And yet, commenting on a woman’s appearance does not feel to
most men like a criminal act or a civil tort. If a woman puts a great deal of
time and effort into looking her best, a man knows that he should offer her a
compliment or two. If a woman wears a low-cut top or unbuttons one extra button
on her blouse, most men are going to notice, even to ogle. Is it harassment or
instinct?
Ideally, interactions between men and women—inside and
outside the workplace-- should be regulated by codes of gentlemanly and
ladylike behavior. Today, they are being policed by lawyers.
In the end, no one seems to win.
Ellen Chang writes for Main Street:
Even though the law
protects victims of sexual harassment, the threat of facing a reprisal remains at the forefront for many
employees, said Sam Cleaver, an attorney who represents victims of sexual
harassment in Los Angeles. Many women are concerned that filing a lawsuit
hinders their ability to get another job, especially if they work in an insular
industry.
“If you complain, you can be retaliated against – do you want to have a great
lawsuit or a great job?” he said.
Moreover, the processes of
discovery and cross examination at trial can be demeaning and embarrassing:
Women who are executives or in an upper management
position are less likely to bring a sexual
harassment lawsuit, because these cases are personal and having your
life critiqued by juries and lawyers is tough, she said.
There’s more to it than
passing new laws and regulations. For laws to be effective, they must make
intuitive sense. Isn’t that the guiding principle of the common law?
People have to understand
intuitively what constitutes sexual harassment and what does not. If new
definitions expand the scope to the point where it comprises actions that do
not feel like harassment, the tactic will not diminish the incidence of sexual
harassment. Men will be reduced to testing boundaries to see what they can get away with.
The Post explains:
Sexual harassment cases in the workplace range from minor
jokes and a slightly hostile workplace to overt touching, “which is nothing
less than a sexual battery,” said Peter Ticktin, a senior partner at Ticktin
Law Group in Deerfield Beach, Fla.
Minor jokes? The broader the definition the less sense it
makes. The less sense it makes the more men will feel that they are being
harassed by lawyers and HR.
But, some women like bawdy
humor, because it makes them feel like one of the guys. And yet, how’s a man to
know whether one woman or another likes or does not like such humor. What
happens if there are several women in a group and some like certain jokes and
others do not?
Overly familiar touching
can certainly be an assault, but it must depend on who is touching whom where,
and on whether the touch is intentional or not.
If you turn too many
different male behaviors into criminal actions, you will cause
people to disrespect the law.
The situation is confusing. Women want to be treated as equals. Presumably, this implies that
they want to be treated as men are treated. And yet, they require special
treatment because certain gestures and even jokes, when addressed to a woman
become aggressive.
In truth, one does well not
to tell vulgar and obscene jokes to women. In the distant past gentlemen never
used foul language around women. And ladies prided themselves on their modesty.
Surely, this was a good
idea. Unfortunately, feminists have rejected the code of gentlemanly and
ladylike behavior as sexist oppression.
The have created a strange
dissonance. On the one hand women want to be treated as professionals. They insist
that their sexuality be kept out of any professional equation. On the other hand,
second-wave feminism has insisted on the open and honest discussion of female
sexuality. The culture of female modesty lost out to a culture defined by The
Hite Report, Fear of Flying and The Vagina Monologues.
If feminists fill the media
with frank discussions of female anatomy they are not very well placed to
condemn men who use vulgar language.
At the least, men will find
the culture confusing and threatening.
