We can’t say much about the veracity of the sexual harassment complaints leveled against Herman Cain 15 years ago, given the lack of specific detail or even the names of the accusers. But this mini-scandal provides an opportunity to revisit one of the most pernicious examples of government intrusion into our lives and workplaces.
As with most bad laws, good intentions paved this road to Big Brother’s regulatory hell. No one should get away with sexual quid pro quos, sleazy innuendos, the abuse of power to gain sexual favors, or grubby groping in the mailroom. But sexual harassment these days is seldom about those obvious offenses. Consider the legal definition of harassment, which occurs when “unwelcome comments or conduct based on sex, race or other legally protected characteristics unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment,” as the FCC Encyclopedia explains the law. You’ll notice that harassment is no longer about victimized women, but a whole host of “protected characteristics,” which include “race, color, religion, sex (whether or not of a sexual nature and including same-gender harassment and gender identity harassment), national origin, age (40 and over), disability (mental or physical), sexual orientation, or retaliation.”
We shouldn’t be surprised that enshrining into law notions as vague and subjective as “intimidating,” “hostile,” or “offensive,” and then applying them to such a broad group of potential victims, will end up with the government intruding into people’s lives at the expense of their rights and freedom. Such elastic terms will mean whatever anybody, no matter how hypersensitive, neurotic, stupid, humorless, or Machiavellian thinks they do at any given time. Additionally, such subjectivity ends up in grossly unfair applications of harassment law. Flirtation that is clumsy or unwelcome suddenly becomes criminal harassment depending on the undesirability or repulsiveness or status of the perpetrator. Clever banter or sophisticated sexual wit likewise changes into harassment depending on the mood of the victim and her changing feelings for the person.
The consequences of the ad hoc standards at the heart of sexual harassment law are most obvious in politics. Bill Clinton’s antics as governor and president were textbook sexual harassment behavior. Yet the feminists and progressives gave him a pass, instructing puritanical, repressed Americans that it was none of their business. What a change from the sputtering high dudgeon on display when Clarence Thomas was nominated to the Supreme Court, or from the scrutiny Herman Cain is being subjected to based on anonymous accusers and vague charges about “inappropriate” behavior, even as the media barely mentions the numerous genuine sexual assaults and rapes going on at various Occupy Wall Street venues.
Yet it isn’t just in politics that sexual harassment charges are weapons to be used against one’s enemies. The same thing happens in mundane office disagreements or personality clashes. When I was the chairman of my department, I was considered “management” and so had to be involved with sexual harassment complaints. Every single one was the result of a factional squabble among faculty that had nothing to do with sexuality or even gender discrimination. Actual charges included such silliness as the offender’s wearing overpowering cologne, or failing to acknowledge something the complainant put in the offender’s mailbox. No matter how juvenile, such charges can be effective. Faced with an investigation, most people will start monitoring their behavior and restricting their speech just to be on the safe side, since employers anxious about liability will err on the side of caution: they will investigate all charges, no matter how flimsy, and buy off accusers, as Cain’s were, rather than face a potentially more expensive lawsuit and the intrusion of federal Equal Employment Opportunity Commissioners inquisitors into their business. It’s simply more cost effective to enable a “chilling effect” on an individual employee’s freedom than to take on a government bureaucracy backed by the coercive power of the courts.
Ultimately the worst danger of such a badly written law comes from bestowing on the state and the courts the power to regulate and intrude into our personal interactions and freedom. In a free, open, and diverse society, our encounters with one another are necessarily fraught with tension, disagreement, and conflict. The threshold of offense differs from person to person, or even from moment to moment in the same person. Given such a wide variety of standards and thresholds of offense, discomfort, distress, appropriateness, or insult, in a free society people have to accept the possibility of hearing or seeing something they don’t like, for the alternative is a government-enforced limitation of freedom that in the long run is more pernicious than hurt feelings.
Such restrictions are precisely what have happened in universities, the presumed bastions of free thought and expression. Many university “harassment codes” list jokes, cartoons, gestures, facial expressions, kidding, and “sexual” remarks as punishable harassment. For example, at California State University Monterey, sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” At U.C. Berkeley, “humor and jokes about sex in general that make someone feel uncomfortable” counts as harassment. Alabama State University targets “behavior that causes discomfort, embarrassment or emotional distress.” And Iowa State University harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.” Leaving aside sexual assault or coercion, the effect of such broad and vague categories is to criminalize normal teen-aged and young adult behavior, not to mention leaving the interpretation of just what constitutes a “sexually harassing gesture” up to the alleged victim and whatever university commissar investigates the incident.
And if that “chilling effect” on individual freedom isn’t enough, earlier this year the Department of Education’s Office of Civil Rights sent a “dear colleague” letter that instructed schools investigating harassment complaints to use the “more likely than not” or “preponderance of the evidence” standard of evidence rather than the “clear and convincing” one. Worse yet, the right of the accused to confront his accuser is suspended, for allowing such questioning may be “traumatic or intimidating.” The DOE apparently is unconcerned with the “trauma” of being falsely accused of sexual harassment and subjected to an investigation stacked against him. “Due process” rights are acknowledged for the perpetrator, but only if they “do not restrict or unnecessarily delay the Title IX protections for the complainant.” As Wendy Kaminer observed, “Elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt” rather than the presumption of innocence at the heart of our judicial system.
And here is the true significance of the attack on Herman Cain. The whole affair is made possible by a textbook case of the government regulatory overreach and intrusion that afflicts our society at every level. Behind these regulations lie the progressive ideology that believes a cadre of experts know better how to organize society and regulate our interactions in order to achieve some utopian goal of egalitarianism or “justice.” The consequences, however, include the further empowering of the state at the expense of individual rights, and the infantilizing of citizens that in the end compromises their freedom, for personal responsibility and self-reliance are the indispensable preconditions for political freedom. As de Tocqueville said about the necessity of self-reliance for democratic freedom: “It profits me but little, after all, that a vigilant authority always protects the tranquility of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life.”
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