Newcomers to the American employment scene are often puzzled by the inconsistency between the anything goes freedom of expression that reigns in the media and the sexually neutral atmosphere that US law requires employers to enforce in the workplace. How can people who elevate the reading of Hustler magazine into a constitutional right nonetheless award multi-million dollar verdicts to women who are offended by sex jokes at work? Are the women and their lawyers who bring these suits prisoners of political correctness, or are they cynically hitting the cash machine? What is going on here, and how can managers cope?
In thinking about the developing law of sexual harassment in the US, it helps to recognize that the duality between freedom of expression and sexual repression is nothing new, but has been characteristic of American society since Colonial times. The plain reality is that, now as then, open sexual behaviour and speech on the part of men make many American women uncomfortable. As women moved in large numbers into trading rooms, factory floors and other formerly all-male work domains, this gender difference became a legal issue. Early teaching that women were entitled to be treated the same as men at work gave way to a perception that equality for women means being treated in a sexually neutral manner.
With the help of Anita Hill, the public at large warmly embraced this new legal right, which courts now broadly define as encompassing both the right to be free from quid pro quo harassment (the demand for sexual favours in exchange for jobs, promotions, etc.) and the right to work in an environment free of sexual abuse (conduct or remarks that are offensive). The burden is on the employer to adopt a sexual harassment policy and enforce it by investigating violations and disciplining violators appropriately. If a jury decides that an employer has failed to adequately protect a plaintiff against sexual harassment, mammoth liability may result.
The requirement that the law imposes on employers of regulating the behaviour of employees towards each other is hard, and probably impossible, to satisfy. After all, human beings are not sexually neutral by nature, and many American women as well as men are accustomed to expressing themselves concerning sexual matters with the utmost freedom. Not just foreigners, but many hapless coworkers and companies, find these conflicting cultural currents hard to navigate in daily workplace life.
Consider the recent case of Mackenzie v Miller Brewing Co Wis Cir Ct No 94-CV-010871, July 15, 1997. Mackenzie, a mid-level manager in a beer company in Wisconsin, tried to retell to his secretary a double entendre joke that he had heard the night before on a nationally broadcast TV show, Seinfeld. The joke turned on the name of the star's girlfriend (Dolores), that Seinfeld had forgotten but which was suppose to rhyme with the name of a body part. Apparently Mackenzie embarked upon retelling this story in order to express his amazement that such a joke could be told on TV. Finding himself too embarrassed to actually voice to his secretary the word upon which the story turned, Mackenzie showed her the page from the dictionary upon which the word clitoris appeared. She complained and, as this was the second time that a secretary had complained of harassment by Mackenzie and he had some other performance problems as well, he was fired. By taking this action the employer did exactly what the law requires in response to a harassment complaint, right? Wrong, according to a jury (of 10 women and two men), which held the company liable to Mackenzie for $26 million in damages.
The man-bites-dog verdict in Mackenzie v Miller has been seized upon by many people as evidence that the law's insistence on sexual neutrality in the workplace has reached an absurd and unworkable limit. Certainly it seems unfair for a man to lose his job for saying in an office in Wisconsin what Jerry Seinfeld can say on national television. Surely employees should not be penalized for speech in the workplace simply because that speech has sexual content, and surely, also, there is a difference between words that offend an individual and harassment that has the effect impairing productivity in the workplace. Judges have been able to make this distinction in some cases, and now it appears a jury can do so as well.
From a management perspective, however, the verdict in Mackenzie v Miller is hardly an event to cheer about, because the jury's underlying message is the same disturbing message that juries send in the more frequent cases in which they award big dollars to plaintiffs who complain about workplace banter. This message is that, as a society, we have decided that employers are accountable for the sexual behaviour of employees toward one another at work. The real-life limitations on the power of employers to control such behaviour of employees seems to trouble no one. We expect employers to uphold the standard of sexual neutrality in the workplace, and to enforce the preference of those members of the society who are offended by sexual conduct and speech but if the employer in fulfilling this mission goes too far and invades our equally deeply rooted expectations about personal freedom, the employer will get hit with a No! verdict as in the Miller case.
The moral of this story is that managers bent on finding objective rules by which to navigate safely the rough legal waters of sexual harassment are doomed to disappointment. An approach more likely to succeed is to accept the necessity of managing the human resources issues that arise from our conflicting attitudes towards personal freedom and sexuality on a day-by-day basis, holding on to our sense of humour and trying to comply with the law while avoiding legalistic application of it.