Opening Argument - A Chance To Clean Up Sexual Harassment Law

National Journal
April 25, 1998

Anyone who doubts that the law of sexual harassment is an incoherent mess need look no further than the 207 pages of opinions by seven judges of the federal appeals court in Chicago, in a case that was heard on Wednesday by the Supreme Court.

Add to that the stark contradictions between the Clinton Administration's arguments supporting the plaintiff in that case and Bill Clinton's arguments for dismissing the Paula Jones case.

Then mix in the omnifarious comments of eight Justices during the Supreme Court argument. Justice Ruth Bader Ginsburg, for example, repeatedly wondered aloud about the strange (she implied) dichotomy between hostile-environment claims based on a ''quid pro quo'' and those stemming from a ''hostile work environment.''

A classic quid pro quo case would involve a male supervisor telling a female employee, ''You'll never get promoted unless you have sex with me.'' A classic hostile environment case might involve that same supervisor, or a group of co-workers, creating a ''severe or pervasive'' atmosphere of sexism in the workplace through offensive--if not necessarily sexual--conduct or comments that demean women.

The answer to Ginsburg's question--as she well knew--was that the Court itself has ratified the quid pro quo/hostile environment dichotomy ever since its first sexual harassment decision in 1986. Now some Justices seem eager to disclaim authorship.

Of course, to say that a body of law is an incoherent mess--and that it can lead to hypocrisy and injustice--is not to say that it should be junked. But perhaps it could be cleaned up a bit.

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