Freeman: Ideas on Liberty - December 1996
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The Sexual Harassment Lemon LawBy Sarah J.
Ms. McCarthy, co-owner of Amel's
Restaurant in Pittsburgh, has written on sexual harassment issues
for Forbes, Regulation, Restaurant Business, and the
University of Wisconsin's Small Business Forum.
Motors, facing what is threatening to become the biggest sexual
harassment case in history, gave 3,000 of its employees a day off
with pay to demonstrate against a lawsuit filed by 29 fellow
employees with the Equal Employment Opportunity Commission.
One of the protesters, Kathleen McLouth, 42, a
parts-deliverer at the Mitsubishi Motors plant near Chicago,
exhibited more common sense than the collective wisdom of the
National Organization for Women, Congress, and the U.S. Supreme
Court when she said, Sexual harassment has got to exist—you can't
have 4,000 people and not have it exist.
This does not mean,
of course, that McLouth wants sexual harassment to exist, or that
she approves of it, but that she knows it will recur as inevitably
as crabgrass or stinkweed. When weeds or pests appear on the scene,
most of us have learned the big lesson of Vietnam—that it's better
not to destroy a village we're trying to save. When you call the
Weed-B-Gone man, you don't expect him to blow up your house.
Unfortunately, when it comes to sexual harassment law,
Congress and the Supreme Court have concocted a cure that's worse
than the disease. A sort of sexual harassment hysteria has erupted
because of a definition so broad and so vague as to cause people
like Bernice Harris, 58, a cashier in the U.S. Senate cafeteria, to
be accused of harassment for calling her customers honey and sugar.
Being called baby, complained Christopher Held, an employee of
Senator Mitch McConnell, was real bothersome.
In the days
before $300,000 fines could be levied for a sweetie in the cafeteria
line, such petty slights would have been overlooked. To ignore a
slight nowadays is like tossing out a winning lottery ticket.
With global sales of $38 billion, Mitsubishi employs workers
who are among the best paid in the auto industry, but has only one
assembly plant in the United States—the one being sued for sexual
harassment. I get fair wages. I get fair benefits. There's an
opportunity for me to move up, says Jane Hieser, a 43-year-old body
shop worker. I get better backing here as a woman than I've ever
Hieser sounds like the women I heard testify
at the trial of a bartender at the former Pittsburgh Sports Garden,
a nightspot frequented by Steelers, Penguins, Pirates, and their
fans. Many women said it was the best place they'd ever worked
before it collapsed under the weight of a sexual harassment suit.
Though the owners knew nothing about the dispute between a bartender
and a waitress, the small business closed down the day the guilty
verdict was announced.
Sexual harassment lawsuits can be job
crushers, and if the damages are big enough they can destroy a
company. The way the current sexual harassment law is constructed,
the company and totally innocent employees pay a bigger price than
the actual harasser.
The economic threat to a company
through a class-action lawsuit is often so large as to border on
extortion, but the threat of economic extinction is only part of the
picture. The employees of Mitsubishi are in for a rough, ugly ride
where their sexual histories, family relationships, and workplace
interactions are dragged into the courtroom like a huge pile of
dirty laundry. Every workplace comment, joke, flirtation, and
relationship will be grist for the mill. The ugly soap opera could
end relationships and marriages. The media, lawyers, and sexual
harassment crusaders will pick over the details of workers' lives
like vultures feeding on a carcass. Some of those involved will
He Said, She Said .
Just as in a family quarrel or a divorce, no
one will ever agree on what really happened—whether the women
involved were damaged, whether they did or didn't bring the
harassment on themselves, or whether they were just trying to win
some easy money. Their character and the reputations of witnesses on
both sides will be impugned. Careers will be derailed.
the end the Mitsubishi plant may be prosperous enough to survive
this lawsuit. But given the near impossibility of monitoring the
sexual speech of over 4,000 workers who may be dating, flirting,
breaking up, or fighting, it's likely they may decide against
opening additional assembly plants in the United States. The
necessity of extensive monitoring by employers who are trying to
protect themselves from sexual harassment lawsuits should raise
concerns about the chilling effects on free speech and freedom of
association. The silencing of workplace clowns, elimination of
social gatherings, and implementation of no-dating policies are the
usual outcomes of sexual harassment lawsuits.
If the case
goes to trial, it's a near certainty that the plant's culture will
be destroyed. Employee will be pitted against employee, man against
woman, friend against friend, and everyone will blame someone else
while the real culprits—the National Organization for Women, the
trial lawyers' lobby, and the Congress of the United States, who
were the architects of this incendiary law—will remain
self-righteously above the fray.
There are, of course, many
more sensible ways to curb sexual harassment, or any other kind of
harassment, in the workplace. Counseling and mediation, backed up by
escalating fines and firings if the problem remains unresolved,
could actually induce more women to report earlier. At present many
hold back complaints because the fallout is so draconian.
Alternative, common-sense solutions, however, lack the glories and
moral victories sought by sexual harassment crusaders and their
big-government allies. There would be no lottery-size wins and
banner headlines for the crusaders and their lawyers. Resolving a
problem through the sensible-shoes approach is not as thrilling as
hobbling a multinational corporation.
After the crusaders
have marched off to the next glorious battle, Kathleen McLouth and
Jane Hieser may be left like soot-covered soldiers on a deserted
battlefield without a workplace and without jobs. Defective cars
that roll off the Mitsubishi Motors assembly plant are subject to
recall under the lemon law. It's time to repair the sexual
harassment lemon law.