Harold Bashman, the Appellateblogger, links to a Sunday New York Times Magazine article about the tangled law of sexual harassment as it applies to male-on-male problems.

Here’s the situation as I understand it. As women started to move into the workplace in greater numbers and at higher organizational levels, two problems emerged. Either the problems were new in scale (they couldn’t have been new absolutely), or feminism made women less willing to put up with them, or the changing class composition of the female workforce brought it to the attention of powerful people, mostly men, whose female relatives and friends started to complain.

One problem was male bosses hitting on their female underlings, using express or implied threats and promises of demotion, firing, promotion, raises, or whatever to work their wicked will. The other problem was male co-workers making life miserable for the women, by hitting on them aggressively or just by maintaining a locker-room atmosphere where women felt uncomfortable. This male behavior was driven by some mix of (1) actual erotic motives; (2) simple thoughtlessness; and (3) resentment at the intrusion of women into formerly male workplaces and a desire to drive the women away, either just to keep the “No Girlllllsss” sign on the clubhouse door or out of (reasonable) economic concerns about competition for work and the risk that “feminized” occupations would tend to become lower-paid.

The Congress, in its wisdom, might eventually have decided to tackle this mess through legislation, using its Commerce Clause powers. But the lawyers beat them to it, with Catherine MacKinnon doing the heavy theoretical lifting. Congress had already outlawed sexual discrimination, and the lawyers got the courts to find that some of the stuff described above, by creating what is technically called a “hostile workplace environment,” amounted by employment discrimination by the employer. This, in turn, has led to some improvement in the situation, and to a lot of nonsense with serious free-expression implications, about which Eugene Volokh has written amusingly (well, it’s probably funnier if it’s not happening to you) and convincingly. The basic problem is that the law now puts companies in the position of regulating both the love lives and the literary and artistic tastes of their employees, as far as those are visible on the job site.

Now the question arises: Under those doctrines, what happens when the victim is a male, either being hit on by a superior (straight woman or gay man, as the case might be), or hassled by male co-workers (1) who are gay and genuinely desire his bod; (2) who think accurately or otherwise that he is gay and are creeped out by that, or simply tormented by a boss and/or co-workers who make nasty sexual jokes directed at him, or touch him in sexual ways as hazing or horseplay? Does any of this amount to employment discrimination on account of gender?

“Why no,” you say, “obviously it doesn’t.” If there were a female-dominated company where men where getting the short end, that would be covered. Or if there were federal law protecting gays against employment discrimination, then hassling gays at work would be covered (and presumably is covered where state statutes address discrimination based on sexual orientation). Otherwise, all this sexual harrassment of men is really bad but has nothing to do with gender discrimination in the workplace.

Wrong. Under an unspeakably arcane set of rules, sometimes the victim of male-on-male harassment wins, sometimes he loses. (He loses, for example, if the harassment is done by an equal-opportunity jerk who mistreats men and women alike; he wins if his harasser is gay, but loses if he’s “out” gay, but probably wins if he’s closeted.)

But even if the Supreme Court had done what seems to me the sensible thing, by restricting the silly legal theory that treats a boss hitting on a subordinate as “employment discrimination” to the male-on-female situation, that really wouldn’t address the basic issue here.

Everything described above is a real problem, and, congenital liberal activist that I am, I’d say probably the sort of problem that ought to be addressed by legislation. To put it crudely, employees shouldn’t have to put out to keep their jobs, or be mistreated by co-workers due to their gender or sexual orientation. (Maybe they should be protected by federal law from bosses who are gross, assaultive buffoons, but I’m less clear on how that should work.) But those real problems can’t be made to fit into the legal box called “employment discrimination” without being bent all out of shape.

And those problems have not been addressed by legislation, with hearings, lobbying, and all the other stuff that often makes statutes look funny, or keeps needed statutes from being passed at all, but at least in principle keeps the law in some touch with reality, forcing it to at least nod in the direction of balancing competing interests, and — let’s not forget — giving it democratic legitimacy. Instead, we have a string of court cases, dominated by legal reasoning (some of which is to reasoning as military music is to music), without a voter anywhere in sight.

Of course the legislatures, and in particular the Congress, have been only too happy to let the courts do the dirty work. That’s one of the problems when judges start stretching statutes to cover novel situations; it takes the pressure off the elected branches. [After Bush v. Gore, the old term “political” branches needs to be retired, I think.]

If the Supreme Court were suddenly to overturn the entire law of sexual harassment — not that it will, or that anyone is even asking it to — the Congress would eventually put something else in its place. It would take a while. As long as GWB is President and Tom DeLay runs the House of Representatives, it wouldn’t include any protection for gays, which I think would be too bad. (Just wait, though; with a conservative Republican senate candidate in Oregon running ads featuring Matthew Shepard’s mother, you have to figure that the days of political homophobia are numbered.) But the result would be a set of laws passed by the people’s representatives, and designed for the problem they’re trying to deal with, rather than a democratically illegitimate legal kluge.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: