Commentary

America’s Overprotective Sexual Harassment Law

By Joan Kennedy Taylor
January 7, 2000
We are letting something destructive happen to American business in the name of helping women. Current sexual harassment law — that is, the extension of anti-discrimination law to stifle and punish sexual speech in the workplace — is creating the very hostility between the sexes that it purports to correct.

Men and women are not natural enemies, but they are being told that they are. Men are warned that if they offend female coworkers they may be disciplined or even fired. Women are being instructed that offensive speech, if heard from men in the workplace, is probably illegal. And to top it off, the Supreme Court is requiring businesses to give those warnings.

There is certainly a free speech issue involved, but from a management perspective the matter is worse than that: it’s divisive. The workplace and society are changing. The American workforce is becoming more diverse and our work is less dependent on physical strength. Women are now needed in jobs for which, just a few decades ago, they had to struggle to be considered.

The problem is not one of sexism. It is one of expectation and communication, and of misinformation given to workers of both genders. There are undoubtedly a few men who bitterly resent the success of women. But their problem and problems of sexual predation and male aggression are not the subjects discussed in the ubiquitous programs management feels compelled to set up today. Rather, it’s clear that those programs deal with faulty expectation and miscommunication: the joke couched in raw language, the seemingly playful insult, the complimentary remark, the hazing of a newcomer — in other words, the staples of male culture.

Women can’t know the way men behave when women are not around. And men, used to all-male workplaces, are not always sure how to treat female coworkers. They may treat them as sex objects rather than colleagues or be overly paternalistic. But those faulty expectations and miscommunications do not prove sexual harassment.

If the problem is not one of sexism, the solution is not legal remedy. Instead, the solution is to increase all workers’ knowledge and to facilitate communication. We need a different attitude and a different kind of employee training.

This country tried once before to protect women from the effects of workplace transition. The protective labor legislation in effect from 1908 until the 1970s mandated special conditions for women: minimum wages, maximum hours, laws against night work and heavy lifting and requirements for special rest breaks. Certain occupations, like mining and wrestling, were closed to women altogether. Feminists realized in the 1970s that such regulations were “protecting” women out of good jobs and promotions.

Once more, an attempt to protect women at work is doing them harm. Like the earlier labor legislation, sexual harassment protection assumes that women are too delicate to flourish in the workplace without government aid.

Sexual harassment regulation has failed women in a changing world. It harms everyone. It violates free speech, creates rather than lessens workplace hostility, and fosters a Victorian view of women. If some women find it difficult to speak up for themselves, we should endeavor to help them to empower themselves, not rely on the government regulation to mandate worker relations.

Government not only should not be relied on in social situations, it cannot be relied on. Women can learn what to expect and how to handle it, and in so doing will not only better protect themselves but will also feel the satisfaction that comes from being effective personally as well as professionally.

Joan Kennedy Taylor is the author of What to Do When You Don’t Want to Call the Cops: A Non-Adversarial Approach to Sexual Harassment, a Cato Institute book published by New York University Press.