TIME: Almanac 1993/TIME Almanac 1993.iso/time/102191/1021106.000

Text File | 1992-08-28 | 22.5 KB | 448 lines

                                                                                NATION, Page 52

COVER STORIES

Office Crimes


In a matter of hours, a new vocabulary of laws and risks and
expectations entered the language of the factory floor and the
tower suite

By NANCY GIBBS -- Reported by Priscilla Painton and Andrea Sachs/
New York and Jeanne L. Reid/Boston


    Last week America set about smashing china and moving
furniture around in the household of its public morality, with
the knowledge that before it was all over no one would know
where to find anything anymore. Conversation became suddenly
careful; the pinups were peeled off the wall. The issue of
sexual harassment -- what it is, why it happens, who's to blame
-- was a fascinating topic to obsess upon as a nation, wonder
about in private, argue about in public. It was also a long,
bruising week of bumping into issues that many of us didn't know
were there.

    In America's workplaces, men and women reintroduced
themselves with a suspicion that their relationships had changed
forever. Men who have worked closely with women for years asked
them flat out, "Have you ever felt threatened or insulted or
offended by anything I've said or done?" Many women privately
shared their experiences and their anger, for the first time
taking seriously behavior they had long taken for granted. Some
of them, wary of being cast as victims, wondered whether in the
end all the sudden attention to the issue would do them more
harm than good.

    The issue of sexual harassment ricochets off other crucial
debates this country has yet to resolve about the boundaries of
morality and law. The boss who kept his employees' menstrual
cycles marked on a wall calendar was, by any measure, a lout.
Was he a criminal? How useful is it to establish a category of
behavior that runs the gamut from rudeness to rape? Should it
be embedded in the law that men and women react differently to
the same comments and behavior?

    The questions and conversations were all the more pointed
because, despite the clarity of the legal language, sexual
harassment is a complex issue, its incidence difficult to
measure. It is uniformly cast as a gender issue, since the
overwhelming majority of cases involve female workers being
harassed by male colleagues and supervisors. But when pollsters
ask women whether they have ever been targets of harassment, the
answers depend on how the question is phrased, which helps
explain why some surveys find that 90% of women view themselves
as victims and others find less than half that number.

    As last week's crash course made clear, most women and
men, especially most Senators, had only the barest
understanding of the power of the law. Under Equal Employment
Opportunity Commission guidelines issued in 1980 and unanimously
affirmed by the Supreme Court in 1986, sexual harassment
includes not just physical but also verbal and "environmental"
abuse. Under the law, there are two broadly recognized forms.
The first involves a "quid pro quo" in which a worker is
compelled to trade sex for professional survival. In 1986 an
Ohio woman won a $3.1 million verdict against an employer who
invited her to perform oral sex or lose her job.

    The other part of the law refers to a "hostile working
environment," and it is here that the debates get most heated.
The phrase covers any unwelcome sexual behavior that makes it
hard for a worker to do her job or that creates a hostile or
offensive environment. Charles Looney, regional director of the
EEOC New England office in Boston, says the courts are more
concerned with the woman's reaction than the man's intent. "If
I run a stop sign, I have broken the law even if I did not
intend to," he says. "People can create hostile environments
without knowing that it would be considered sexual harassment,
but they are still liable."

    The courts may have worked it all out, but most Americans
have not. As people wrestled last week with the ambiguous
definitions of sexual harassment, many were left with a
conviction that, as with pornography, they know it when they see
it. The ugly realities of many American workplaces give the
legal language its vividness. There is, for instance, the case
of Edith Magee, who worked a shovel and drove a dump truck for
the St. Paul, Minn., sewage department. "There was always this
implied threat that if they didn't like you, they would use
their authority to get you in trouble," she says of her
supervisors. Her employer settled her case for $75,000 but
denied any wrongdoing. "I knew when I walked into the lunchroom
and my boss was reading Hustler, it was going to be bad," she
says. "He'd show me pictures of dildoes and say, `Is your
husband's this big?' There was no way you could push him away.
He would just go and go and never stop. The idea was, if you
were a female and did something as low-class as shovel, then you
deserved what you got."

    Such stories, echoed a thousand, a hundred thousand times
last week, helped lawyers explain that sexual harassment is not
about civility. It is not about a man making an unwelcome pass,
telling a dirty joke or commenting on someone's appearance.
Rather it is an abuse of power in which a worker who depends for
her livelihood and professional survival on the goodwill of a
superior is made to feel vulnerable. "This is not automatically
a male-female issue," says Wendy Reid Crisp, the director of the
National Association for Female Executives, the largest women's
professional association in the country. "We define this issue
as economic intimidation."

    Edith Magee is typical in that the most common targets of
harassment in blue-collar jobs tend to be women who are breaking
into fields once dominated by men. In white-collar professions,
most victims are "women in lowly positions," says Susan
Rubenstein, an attorney in San Francisco who specializes in
sexual-harassment cases. "A secretary will get harassed before
a lawyer, a paralegal will get harassed before an associate."
Particularly in male bastions, women find that feminism becomes,
ironically, a weapon in the attack.

    "It's not just some guy grabbing you and pushing you in a
closet and saying, `If you don't let me fondle you, I'm going
to fire you,'" explains Susan Faludi, author of a new book,
Backlash: The Undeclared War Against American Women. "It's more
the subtler form of making women uncomfortable by turning the
workplace into a locker room and then telling them, `What's the
matter, you can't handle it? You wanted equality; I'm going to
give it to you with a vengeance.'"

    Faludi cites the case of Diane Joyce, who fought for 17
years to become the first female skilled crafts worker in the
history of Santa Clara, Calif. The real fight began after she
finally started the job. When the roadmen trained Joyce to drive
the bobtail trucks, says Faludi, they kept changing
instructions; one gave her driving tips that nearly blew up the
engine. She had to file a formal grievance just to get the pair
of coveralls that she said were withheld from her. In the yard
the men kept the ladies' room locked, and on the road they
wouldn't stop to let her use a bathroom. "You wanted a man's
job, you learn to pee like a man," she recalls a superior
telling her. "She is not talking about being attacked in the
office," says Faludi. "It's a slow, relentless accumulation of
slights and insults that add up to the same thing -- the message
that we don't want you here and we are going to make your hours
here uncomfortable."

    In the years since women were integrated into the armed
forces, that once all-male preserve has struggled to counter the
macho image that long prevailed. SEXUAL HARASSMENT IS NOT
FROWNED ON HERE; IT'S GRADED was one sign, now removed, in the
Pentagon. By and large, the military has succeeded in impressing
officers with the importance of the issue, though enlisted men
are not always as enlightened. But there is one big exception,
according to Linda Grant De Pauw, president of the Minerva
Center, an educational facility dealing with women in the armed
services. "The absolute military ban on homosexuals creates an
opening for sexual harassment," she says. "Military women live
in mortal fear of being called a dyke. When the man says, `Sleep
with me or I'll say you're a lesbian,' it is terrifically
effective where women know they may be kicked out if the charge
is made."

    Defining unwelcome or offensive advances sounds like a
subjective judgment; many people last week were worried that
sexual harassment is anything an accuser says it is. But in a
landmark ruling, the Ninth U.S. Circuit Court in California
ruled that the law covers any remark or behavior that a
"reasonable woman" would find to be a problem -- and
acknowledged that a woman's perception might differ from a
man's. Judge Robert Beezer wrote that "conduct that many men
consider unobjectionable may offend many women." He noted that
because women are much more likely to be victims of rape and
sexual assault, they have a "stronger incentive to be concerned
with sexual behavior." Men, in addition, are more likely to view
sexual conduct as harmless.

    Underneath that reasoning is the notion that there is a
continuum running from the innocent gesture to the brutal
assault. It is an interpretation fused to an ideology that
places all behavior in the context of male power. In the view
of Boston University psychology professor Frances Grossman,
"From the guys who wink on the street to the biology professor
who tells a sexist joke in class, to the guy who says, `Hey,
baby, let's go out,' to the guy who rapes -- all are of a piece
in their role of disempowering women. Men say these are not
related behaviors. Flirting and jokes are fine, and rape is bad,
they say. But increasingly, sociologists say they all send the
same disempowering message to women."

    That line of argument brings shouts of anger not only from
men who feel maligned but also from women who feel belittled.
They argue that women do themselves and their careers no favor
when they play victim or perpetuate an unhealthy culture of
self-pity by asking to be coddled and protected from rudeness
and boorish behavior. Sexual harassment is not about sex; it is
about power, the reasoning goes, and if women act powerless at
work, they will almost certainly be taken advantage of.

    Here is a rare intersection between the opinions of some
ardent feminists and some profound antifeminists. "If a girl can
survive high school, she ought to be able to deal with the
office," says Phyllis Schlafly, a longtime crusader against
feminist causes. For Schlafly, the sexual-harassment argument
is a perfect example of how "feminists are asking to have it
both ways." Says she: "They have spent 20 years preaching that
there isn't any difference between men and women, and now they
want to turn around and claim sexual harassment if somebody says
something that they don't like." The very issue is patronizing,
says Schlafly, because it implies that women cannot handle
uncomfortable situations without the help of government.

    This is not just the view of an extremist. Scholars such
as Ellen Frankel Paul, deputy director of the Social Philosophy
and Policy Center at Bowling Green State University in Ohio,
argue that the courts are a dangerous mechanism for policing
behavior. "Do we really want legislators and judges delving into
our most intimate private lives," she asks, "deciding when a
look is a leer and when a leer is a civil rights offense? Should
people have a legally enforceable right not to be offended by
others? At some point, the price for such protection is the loss
of both liberty and privacy rights."

    From this perspective, women have a lot to lose if they
press the issue of sexual harassment too far. Particularly in
white-collar settings, younger workers rely on mentors to help
them learn the ropes and advance their careers. If a boss is
afraid that his interest in a protege's success will be
misconstrued, the safer path is to avoid mentor relationships.
"While it is perfectly fine -- and normal -- for a mentor to say
to a man, `Let's have a drink, or play golf, and talk about that
promotion,' it's harder for a mentor to do that with a woman
outside strict business hours without incurring some legal
risk," notes Terry Morehead Dworkin, a business-law professor
at Indiana University. One solution, of course, is for more
women to be in the position to promote younger women, but in
many corporations that day is still far off.

    Some men last week were also impatient with the way the
issue has been cast. Though his view is hardly typical, Fredric
Hayward, the executive director of Men's Rights Inc. in
Sacramento, examines the exact same situations but finds a
different victim. Men may wield professional power, he says, but
women have sexual power. "If I or a woman does not get a job
because a female competitor displays more enticing cleavage,
then what are we victims of?" he asks. "If I or a woman does not
get a promotion because a female competitor has an affair with
our boss, then what are we victims of?" In his view, men and
women have an equal incentive to abuse whatever power they have.
"For every executive who chases an executive around the desk,"
he declares, "there is a secretary who dreams of marrying an
executive and not having to be a secretary anymore."

    There are many possible answers to Hayward's
characterization of women's professional behavior, which points
to the dangers of generalization on this issue. One rebuttal
might come from all the women who have struggled to erase their
gender at the office door. "The minute I get in, I become one
of the guys," says stand-up comic Reno, who works in comedy
clubs. "I've got to take my breasts off and talk from the head
up and slap everybody around. I become this desexualized
creature so that we can all work together."

    Susan Webb runs a consulting firm in Seattle that helps
companies educate their employees about the issue of harassment.
She says men almost always greet her with derision. "So now
we're going to find out how to do it" is one reaction. Or, "I've
been trying for years to get someone to sexually harass me."
Says Webb: "The laughing is not because they are mean or bad,
but because they really don't understand it." Part of what fuels
the initial jokes, says Webb, is the fear of being blamed for
or embarrassed about sexual harassment.

    Many male supervisors are now wondering how careful they
will have to be with their humor, their offhand remarks, their
courtship of colleagues in whom they are romantically
interested. Florida state representative Kathy Chinoy is a
lawyer whose specialty is sexual harassment. She finds that many
of her colleagues in the statehouse are genuinely bewildered by
the issue, though younger men, who grew up with a different code
of conduct, seem to have a more acute understanding. She
recommends a simple litmus test for men who are seeking guidance
on what is appropriate and what is not: "Would you want your
mother, sister or daughter exposed to that?"

    The confusion can cut both ways. For a woman who is
attracted to her superior, the inferences that colleagues may
draw from that relationship make her think long and hard before
entering into a romance. Is it worth it for me to date my boss,
a woman may think, if in the future others will snicker that my
success has come about not because of my talent but because I'm
involved with my supervisor?

    How can it be, many people wondered last week, that such
a huge majority of women seem to have had some visceral and
personal experience with this issue and yet so few cases ever
end up being formally settled, by the employer or by the court?
Those who charge that the issue is exaggerated point to the tiny
number of sexual-harassment charges -- 5,557 complaints -- that
ended up before the Equal Employment Opportunity Commission last
year. It is true that cases are also handled in private
litigation, but overall the number of formal complaints reflects
a minuscule fraction of the number of women who say they have
experienced harassment at work.

    But the fact that there is a wide gap between what women
say they experience and what they take to court sheds
considerable light on the issue. Lawyers are loath to take such
cases, because the risks are great and the rewards small. The
burden of proof is very high; as the Eighth Circuit Court of
Appeals in St. Louis noted in one ruling, the laws on sexual
harassment "do not mandate an employment environment worthy of
a Victorian salon." When women were asked why they had never
taken formal action, the answer was stunningly consistent: Why
commit professional suicide?

    Though Anita Hill brought the issue into the spotlight,
she was preceded by another highly visible, impressive and
articulate woman who helped shape the national debate. When
Stanford University neurosurgeon Frances Conley resigned her
post this year to protest the behavior of her male colleagues,
she forced men and women to weigh the costs of taking complaints
public. Conley made a useful lightning rod, since by her
demeanor she dispelled the notion of accusers as crybabies or
oversensitive types who are not sophisticated enough to cope
with office banter. She announced last month that she would
rejoin the faculty, having been persuaded that her message had
been heard.

    It remains to be seen what will become of Hill once the
passion of this public moment subsides. But for women with less
of a pulpit, the results of coming forward can be devastating.
Simone Lochlear, a 28-year-old restaurant manager in the South,
filed a sexual-harassment suit against the manager of
Washington's Dubliner Restaurant and Pub, who she alleged twice
asked her to perform oral sex in front of another employee.
After she filed a claim at the District of Columbia's
human-rights office, she says, the manager had a private
detective follow her and take notes on how she worked. She was
fired two months later for failing to ring up drinks correctly.
Her employer denies her charge, and she is still awaiting a
ruling on her case. "It makes me really angry that someone could
do this to me and mess with my mind. I was standing up for what
was right and became the victim."

    For many women the decision about whether to take any
action or lodge a complaint is an economic one. Any action that
might lead to loss of a job, or even alienation from co-workers,
may seem too costly even for one's dignity or peace of mind.
Anita Allen, a black woman who grew up in the South, became a
philosophy professor at Carnegie-Mellon and went on to become
a Wall Street lawyer. Last year she taught at Harvard law school
as a visiting professor. "I have experienced sexual harassment
in every area that I have worked, from comments to innuendo to
times when I have literally been chased around a desk," she
says. "I have accepted jobs from people who engaged in sexual
harassment because I needed the job. I never considered a legal
suit. I tried to pretend it didn't happen. Today I'd be
different."

    The financial cost is often high as well. The only time
the EEOC provides free legal help is when it chooses to take
the case to court -- a rare occurrence. Women must typically
hire private litigators, many of whom demand high fees because
the cases are so hard to win and the settlements so low. Under
the Civil Rights Act of 1964, a woman who wins a suit is
entitled to reinstatement with back pay. There is no provision
for punitive damages, though some state and municipal laws are
more generous. The civil rights bill that is now pending would
allow for punitive damages, but President Bush has promised a
veto.

    In the absence of any strong federal enforcement, the
responsibility for addressing the issue has fallen to private
employers. Their interest in the problem is self-interest: the
courts have ruled that companies are liable for their employees'
behavior, even if they are unaware of it and have
anti-harassment policies in place. According to a 1988 survey
of FORTUNE 500 companies by Working Woman magazine, ignoring the
issue costs a typical FORTUNE 500 company as much as $6.7
million a year in absenteeism, turnover and lost productivity.
Three-quarters of the firms have established anti-harassment
policies, 90% have received complaints, and 64% acknowledge that
most of the complaints they hear are valid. In roughly 80% of
cases, the harasser is reprimanded; in 20%, a firing results.

    But whatever standards and expectations were in place
before last week, they now lie in pieces on the office or the
factory floor. Too many conversations occurred, too many stories
were told, for men and women to return comfortably to old
patterns of behavior. In the immediate future, progress may come
on tiptoe. For a little while at least, an excess of care,
though dampening the easy working relationships both men and
women value, may be an appropriate antidote to so many years of
clumsiness and indifference to this issue. Once the ground
settles under everyone's feet, perhaps the intricacies of the
law will become less important, because the standards of
acceptable behavior will have been forever raised.


________________________________________________________________
OFFICE CRIMES
                                                      Yes     No
    Have you ever experienced what you regard
    as sexual harassment at work?                     34%    64%

    Should a man found to have engaged in sexual
    harassment of a woman be fired from his job?      53%    35%

    Do you think sexual harassment occurs when
    a man who is a woman's boss or supervisor:

          Flirts with the woman                       41%

          Makes remarks to her that contain
          sexual references or double meanings        80%

          Frequently puts his arm around her
          shoulders or back                           64%

          Insists on telling sexual jokes to her      74%

          Insists on discussing pornographic acts
          with her                                    91%

          Pressures her to go out to dinner with
          him                                         77%

          Asks her to have sex with him               87%


    [From a telephone poll of 500 American adults taken for
TIME/CNN on Oct. 10 by Yankelovich Clancy Shulman. Sampling
error is plus or minus 4.5%.]