The lingering questions of the Thomas and Ginsburg hearings anxiously converged in a sexual harassment case before the Court this week. Can sexual banter in the workplace be punished if it offends women without affecting their job performance? And are men's and women's perspectives about sex so vastly different that women need special protection from the vulgarity of men? By answering no to both questions, the justices will have the chance to repudiate the most serious threat to the First Amendment of the past decade: the notion that words that create an "intimidating, hostile or offensive working environment," without inflicting more tangible harms, can be punished as harassment.
Invented in the 1970s by the feminist legal theorist Catharine MacKinnon, and endorsed in 1980 by the Equal Employment Opportunity Commission, the "hostile environment test" represents a radical exception to the First Amendment axiom that speech cannot be punished merely because it is offensive (see "Talking Dirty," TNR, November 4, 1991). And although the Supreme Court said in 1986 that sexually explicit speech has to be severe, pervasive and "unwanted" to create an abusive environment, lower courts have applied the confusing test more expansively.
A 1992 article in the UCLA Law Review by Eugene Volokh, who is now a law clerk for Sandra Day O'Connor, collects the most senseless of the recent cases. One court said that the use of gender-based job titles (like "draftsman" or "foreman") could be actionable. Another court required an employer to proscribe any "sexually suggestive" material, defined broadly enough to include reproductions of classical paintings.
The charges in the pending Supreme Court case, Teresa Harris v. Forklift Systems, fall somewhere between the extremes; and they are awkwardly similar to Anita Hill's charges against Clarence Thomas. Harris, a manager at a Nashville forklift company, was offended by the denigrating comments of her supervisor, Charles Hardy, such as, "You're a dumb ass woman ... what do you know?" Hardy also asked Harris and other female employees to fish for quarters in his pants pocket, and had a running joke that "large-breasted women are that way because they eat a lot of corn." After failing to complain for two years, Harris finally confronted Hardy, who said he had been joking and promised to stop. A month later, however, he asked Harris whether she had promised to "bugger" a customer to get an account. She quit, saying she had been sexually harassed.
The judge disagreed. Other female employees, he noted, said they were not offended by Hardy's jokes and were surprised to learn that Harris had been offended. Applying the tests for "hostile environment" harassment that several courts have adopted, the judge concluded that Harris showed no signs of serious "psychological injury" as a result of Hardy's comments. He also found that the comments, although offensive, would not have interfered with the job performance of a "reasonable woman."
In their Supreme Court briefs, both sides agree that the judge was wrong to use "psychological injury" as a touchstone of the existence of a "hostile environment." They argue that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the "terms, conditions or privileges" of employment, does not require that employees tolerate harassment until it drives them to the brink of mental illness. Hard-line difference feminists want to retain a broad definition of "hostile environment" that might include jokes, pinups and offensive slang. But in their briefs, at least, a surprisingly eclectic coalition of amicus groups, including the EEOC, the Justice Department and a group called "Feminists for Free Expression," is asking the Court to replace the "hostile environment" test with a test that requires evidence of tangible interference with work performance.
The Feminists for Free Expression argue that the "hostile environment" test subverts equality as well as free speech in the workplace. The effort to shield women by bowdlerizing the speech of men enshrines archaic stereotypes of women as delicate creatures who need special protection from words and images. The generalization that women are more likely to be offended by scatology than men also seems like the sort of romantic paternalism that title VII was designed to erase. Accordingly, Feminists for Free Expression propose the following replacement for the "hostile environment" test: a pattern of conduct or expression that is directed at a specific employee; which a reasonable person would experience as harassment; and which has substantially hindered the employee's job performance.
The requirement that harassment must be directed at specific employees would solve the pinup problem, ensuring that nude calendars or magazines, and overheard conversations between willing listeners, would have the same protection at work and at home. (In her new book, Only Words, by contrast, MacKinnon invokes the logic of the "hostile environment" test to ban pornography at home and at work.) It would also call into question the new definition of harassment that the EEOC proposed on October 1, which includes "written or graphic material that denigrates or shows hostility or aversion toward an individual or group," placed anywhere in the workplace.
The requirement that harassment cannot be punished unless job performance suffers is even more important. It would shift the focus of harassment trials from subjective offensiveness to the objective harm; and would ensure that offensive speech with no tangible effects on employment conditions would remain protected. (Employers would be free, however, to encourage civility in informal ways.)
Feminists are divided, finally, about whether sexual harassment should be viewed from the perspective of the "reasonable woman" or the "reasonable person." The special treatment camp argues that a sexless, "reasonable person" standard ignores the different perspectives of women. The equal treatment camp counters that for centuries stereotypes about "reasonable women" have been used to enshrine the idea that women are unable to cope with ordinary job pressures.
Both positions are unsatisfying. In practice, the difference between the "reasonable person" and the "reasonable woman" is elusive, since most courts blend the two standards by considering the perspective of a "reasonable person in the employee's position." And the conceit that gender differences can always be abstracted away is just as misguided as the conceit that gender differences can never be transcended. A 1985 study cited by the American Psychological Association, for example, found that men were four times more likely to predict that women would be flattered by sexual overtures at work, and four times less likely to predict that they would be insulted. But as Ruth Bader Ginsburg noted in a 1988 speech: "Generalizations about the way women or men are ... cannot guide me reliably in making decisions about particular individuals."
Relying on the language of Title VII, which prohibits discrimination "against any individual," the Court could abandon its search for the reasonable victim and instead consider harassment from the perspective of the actual victim. It is an axiom of common law, after all, that you take your victims as you find them. And the requirement that harassment must be "severe and pervasive" would protect employers from rare, hypersensitive employees. Ever since the Civil Rights Act of 1991, furthermore, most harassment cases go before jurors, who tend to be rooted in reality. If an employee says she is harmed by one term of endearment, she is unlikely to convince her peers.
The best harassment test, in short, is the one Nadine Strossen of the aclu proposed in 1984: a severe pattern of conduct or expression, directed at a specific employee, that demonstrably hinders his or her job performance. Would Teresa Harris, or Anita Hill, pass the test? Probably not. Harris said she was driven to drink; and Hill said she developed nervous cramps; but neither woman indicated that her job performance noticeably suffered. Although lamentable, the ordeals of Harris and Hill are mild compared with the ordeals of most successful sexual harassment plaintiffs, who endure physical and psychological abuse that few people would consider trivial. By rejecting a definition of sexual harassment that confuses tasteless jokes with genuine assaults, the Court can vindicate a jurisprudence of equality over a jurisprudence of difference.