For now it is. But that’s quickly changing as sexual harassment becomes central to the courts, corporations and even schools. Two years after the confirmation hearings of Supreme Court Justice Clarence Thomas spurred a national teach-in on the issue, record numbers of women are stepping forward with allegations. The number of complaints filed with the Equal Employment Opportunity Commission and state agencies has nearly doubled, from 5,694 cases in 1990 to 10,900 cases in the first eight months of this year. “Are women getting better treatment? Yes. I,-, harassment lessening? No. But more are reporting it and more are talking to people about it,” says Ellen Bravo, executive director of the 9-to-5 National Association of Working Women. Yet bosses and judges still have trouble separating harassment from merely oafish behavior. And confusion abounds over legal remedies as well as the limits of the law.
In the case before the Supreme Court, manager Teresa Harris charged that Charles Hardy, the president of Forklift Systems, Inc., of Nashville, Tenn., had overstepped the bounds with her. She says that he’d suggest, “Let’s go to the Holiday Inn to negotiate your raise.” He’d call her a “dumb-ass woman.” He’d ask her and other women to put their hands in his pants pocket to retrieve change. According to a lower court, Hardy’s behavior was “annoying and insensitive” but wasn’t harassment because Harris didn’t prove it caused her “severe psychological injury.”
Ironically, the Supreme Court itself created the confusion over the definition of sexual harassment. Seven years ago the court ruled that the Civil Rights Act of 1964 protects workers from sexual harassment that fosters a “hostile environment,” whether it’s from boss to employee or worker to worker. But the justices didn’t spell out the mechanics for proving it. Some lower courts insist women show the harassment interfered with their jobs, while others demand measurable psychological injury It’s rarely clear-cut. In a harassment suit brought against Hooters restaurants, several former waitresses argued that just because they agreed to wear the chain’s bodybaring uniforms, they didn’t sign on for the overtures they claim came from bosses and customers. “The company can’t merely say, ‘Yes, we’re sexist, everyone knows it, including the women who work here” says Lori Peterson, the women’s Minneapolis attorney. “That’s like saying, ‘We’re racist so get used to it’.” Hooters vice president Mike McNeil insists the point of the uniforms is sex appeal, not sexual harassment.
Despite new awareness of harassment, a Working Woman magazine survey shows that just 26 percent of women who say they’ve been harassed report the incident. Many women are just too afraid of retribution, and often their fears are justified.
FBI agent Suzane Doucette says that’s why she announced last week she was quitting her job. Doucette, who became an agent in 1984, says her boss, Herbert H. Hawkins Jr., sexually assaulted her in a Tucson, Ariz., hotel four years later. (Hawkins, now retired, denies the allegation.) Doucette claims she didn’t complain because he threatened to bar her husband’s transfer from an FBI job in New York to Arizona, where she was stationed. But though she’d become a highly commended agent, she says harassment from other colleagues continued. Last April, Doucette filed a discrimination complaint with the justice Department. A month later, as she was to testify before a Senate committee about her treatment by the FBI, she learned she was the target of what she calls a bogus criminal investigation into allegations that she’d passed unspecified classified documents to an attorney. “The FBI was an organization I trusted,” she said. “I expected they’d say, ‘Sue Doucette, you’re a loyal worker and we’ll help you’.”
In corporate America, nearly all large companies now have policies against harassment. But simple economics may be doing more to stem harassment than political correctness ever could. Sexual-harassment cases cost a typical Fortune 500 company more than $8 million a year, including lost productivity and talent, says consultant Freada Klein of Cambridge, Mass. Programs to sensitize workers cost 36 times less. Most firms also have “slush funds” to quietly settle suits that could otherwise result in messy public trials. “They’re willing to pay substantially to avoid that,” says Michael Duffy, chairman of the Massachusetts Commission Against Discrimination. Experts say the numbers can easily reach six figures–but that’s a bargain next to the multimillion-dollar judgments that juries typically award in harassment cases.
In probably the boldest turn in the post-Thomas era, feminists are now taking the harassment battle from boardrooms to elementary and junior-high schools. “Peer harassment is an issue that’s just coming out of the closet, says Pat Call beck Harper, a Montana “gender equity specialist.” A Seventeen magazine survey this year found that 89 percent of young girls said they had been the target of the most common harassment-sexual comments, gestures and looks. Yet Minnesota and California are the only states that have separate laws barring sexual harassment in schools and requiring school policies covering peer harassment.
Distinguishing a joke from assault can be difficult, especially among hormonally charged adolescents. For them, it can be paralyzing. That’s the claim in one of the most closely watched cases in the country, brought by a 12-year-old girl at Kennilworth Junior High in Petaluma, Calif. She began to be teased by two pubescent boys. “I hear you have a hot dog in your pants,” they’d say. The taunts soon came from girls, too. Even the haven of the classroom was punctured when a boy asked, “Did you have sex with a hot dog?” After two years, the girl’s parents sent her to another school, but the ugly joke followed. Now she attends a private high school–and she’s suing the Petaluma school district for $1 million. A federal judge has ruled that taunting is peer-to-peer harassment if it creates a “hostile environment,” but he also said that to win damages, the girl would have to prove “discriminatory intent” by officials.
Are the courts getting mired in frivolous charges? When a 15-year-old boy fondled the breasts of two 13-year-old girls at Longfellow Intermediate School in Fairfax County, Va., last year, he landed not in the principal’s office, but at the police station. Clark University law professor Christina Hoff Summers asks, “Why call it harassment when the real problem is discipline?”
The next battleground could be the streets. Northwestern University law professor Cynthia Bowman argued in a Harvard Law Review article last January that the remarks and catcalls that rain down on women from construction workers and investment bankers alike can be “assaultive.” She wants women to fight back in the courts, even if the proposal does run headlong into the First Amendment. Isabelle Katz Pinzler, director of the Women’s Rights Project of the American Civil Liberties Union, says streets must be protected as free “marketplaces” of ideas. “Having to endure unpleasant speech is the price we pay in order to preserve free speech, and some people feel that price more keenly than others.” Then there are the practical aspects of taking on an abusive bard hat. “What do you do,” asks Pinzler, “stop the person who’s harassing you and ask for their name and address so you can sue them?” Women still have to pick their battles and, for now, they’re standing up to the boss. And they’re finding some success–even in a chaotic legal landscape.
