Vague language in Executive Order 927 leaves one to wonder who might harass whom.

by Bruce S. Thornton

Private Papers

Even as the ACLU frets over the privacy of people chatting with Al Qaeda on their cell phones or googling bomb-making instructions on public library computers, a more serious threat to civil liberties and personal freedom has long been institutionalized in our society. I’m talking of sexual harassment law, which has evolved into an Orwellian form of thought policing that subjects individuals and their relations with each other to the coercive power of the state.

Most people assume sexual harassment is about reining in cheesy lotharios who grope their colleagues in the mailroom or traffic in sexual quid pro quos. However, sexual harassment law goes far beyond such behaviors, which most of us agree obviously need to be discouraged and punished. But because of the subjective elasticity of the terms used in sexual harassment law, a whole range of other behaviors, many not having much to do with sex per se, are now subjected to the investigative and punitive powers of the state.

Indeed, “sexual harassment” is a glaring misnomer for the vast territory that the law now encompasses. Sexual harassment law is in reality anti-discrimination law. Consider the following, from the Chancellor of the California State University system Charles Reed’s Executive Order 927, issued in January “in response to recent legal and legislative developments in the area of anti-harassment laws”: “Harassment occurs when unwelcome conduct is engaged in because of a protected status of an individual, which include [sic] race, color, religion, national origin, ancestry, age, sex, sexual orientation, marital status, veteran status, physical disability, mental disability, or medical condition.” In other words, just about everybody is now a potential victim.

The problem with this expansion of the victim-pool is that the other condition necessary for a valid harassment complaint involves subjective judgments limited only by the number of possible complainants, which is to say there are no limits: “Such conduct is so severe or pervasive that its effect, whether or not intended, is a work environment that could be considered by a reasonable person in the shoes of the individual, and is in fact considered by the individual, as intimidating, hostile or offensive.”

“Severe,” “pervasive,” “reasonable,” “intimidating, hostile, or offensive” — interpretations of the meaning of these words will be as numerous as the number of people in your office. Such terms are subjective, relative, contingent, and even arbitrary, their force dependent on nothing other than the perception of the alleged victim. This person can be hypersensitive, neurotic, stupid, or vicious, yet his or her definition of the law will set the standard for tripping an investigation.

Nor is the “reasonable person” limit much help, for notice that such a person is strictly qualified as someone who is “in the shoes of the individual.” In other words, if a homosexual is making the complaint, the standard of reasonableness will not be a global one, nor even one that all homosexuals endorse, but one that the individual homosexual in that specific circumstance holds. So too with women, ethnic minorities, the handicapped, and every other category: each victim is assumed to have his or her own standard of reasonableness — which means that someone who is not that person will be incapable of judging whether or not the conduct is “reasonable” in those particular circumstances.

The consequence of this expansive subjectivity is that it becomes very difficult daily to calibrate one’s words and behaviors given the shifting, elastic definitions of discriminatory harassment in play at any one time. Indeed, since the offense is defined by the perception of the victim, the same person can change the threshold of offense from one day to the next or from one person to the next. Finally, since the intent of the alleged perpetrator is irrelevant, every social interaction is a minefield of possible offensive behaviors. This reduction of harassment to the subjective perception of the victim puts into the hands of the disgruntled, the Machiavellian, or the neurotic a powerful trump card to play during the normal conflicts, disagreements, and personality clashes that occur every time a group of people get together to do something.

The dangerous subjectivity of definitions of legal harassment is indeed acknowledged and accepted by those who train supervisors in the law. I know this because I have just taken an on-line sexual harassment training course. (Because of an agreement between the CSU and the faculty union, all CSU faculty — not just supervisors, as required by recent California law — have to take two hours of on-line sexual harassment training.) The course I took is frightening in its implications, for it assumes as unexceptional or even desirable a workplace half out of Kafka and half out of Orwell.

Given that harassment lies in the eye of the victim, the course recommends that all employees constantly monitor and fine-tune their conversations and behaviors in order to avoid anything that could remotely be construed as objectionable to anyone in the “protected” categories. This advice, of course, is useless, given that there are so many subjective definitions of what’s objectionable that the only viable solution is to avoid most conversation or reduce one’s comments to banal pleasantries. In workplace discussions individuals will have to continually practice self-censorship to insure that their personal way of expressing themselves — with irony, sarcasm, or humor, for example — is not interpreted by the thin-skinned, the crazy, or the malignant as “harassment.”

Moreover, the course advises supervisors to take seriously and report any charge of sexual harassment or discrimination no matter how preposterous. Indeed, supervisors should constantly monitor their workplace and work-related functions and intervene if they witness or hear anything they even suspect might be sexual harassment. “Contact the proper university authorities” is the phrase most used in the course, evoking a world of relentless surveillance redolent of the old Soviet Union or Castro’s Cuba, where every block has a commissar whose job is to watch out for deviations from political correctness.

The result of such a climate is to erode collegiality and poison relationships with the lurking possibility that the normal disagreements and conflicts that are part and parcel of normal human relationships will be redefined as actionable harassment subject to the greater coercive powers of the institution and the state.

Worse yet, in the context of the university, academic freedom and the freedom of expression guaranteed by the Constitution are seriously compromised. In the training course I took, the phrase “academic freedom” did not appear once. Reference was made to the First Amendment, usually to note that it doesn’t protect behaviors or speech perceived as harassment, a debatable legal position at best. More depressing is the complete unawareness of the unique role of the university in providing a protected space where ideas can be openly discussed and debated no matter how objectionable.

After all, that is why tenure was created in the first place: to insure that the university welcomes and supports the “free play of the mind on all subjects,” as Matthew Arnold famously defined the purpose of a liberal education. But how much “free play” can there be when people are obsessed with monitoring what they say and how they say it because someone might perceive it to be objectionable? The phenomenon of political correctness in the universities has indeed been nurtured and empowered by sexual harassment law, which adds to the informal means of censoring speech — shunning, for example — the threat of investigation and punishment by some powerful institution, whether that be the university, the state, or a federal office such as the Equal Employment Opportunity Commission.

Finally, and more broadly, sexual harassment law embodies a whole set of assumptions diametrically opposed to those underlying our republic’s values of personal autonomy and freedom. The flip side of personal freedom has always and ever been personal responsibility for negotiating the conflicts that necessarily arise when people are freer in their actions and speech.  Given the great variety and number of free people and their thresholds of offensiveness, our words and deeds will frequently be disturbing to some. But that’s the price we pay for freedom, and it is our responsibility to be adults and figure out how to get along in a world where everybody, not just privileged elites, are given wide latitude for the expression of their ideas. A truly free and open speech will frequently lack civility or sensitivity to feeling, for the point of such a debate is not to make people feel good but to get at the truth and value of ideas. The raucous, sometimes crude, often offensive nature of democratic speech was recognized as part of democratic freedom as far back as fifth-century Athens — which is one reason why elitists like Plato disliked democracy.

Sexual harassment law takes this responsibility for managing our free speech and its effects away from individuals, and so reduces us to children who require institutional nannies to monitor our behavior and protect the tender sensibilities of people no matter how unreasonable or neurotic their private standards of offense are. As such, current sexual harassment law is an insidious threat to freedom, one much more serious than the temporary intrusions on the privacy of people suspected of communicating with terrorists. And that threat, enshrined as it now is in law and legal precedent and backed up by state power, will be with us for a long time.