We’ve Got Lots Of Sorting Out To Do

This is not a sexy story. Which is, after all, the whole point.

For the last many weeks and months, we’ve been awash in so many tales about sex in the workplace that it’s been nearly impossible to get any work done.

First, Paula Jones had everyone talking about the line between an unwanted sexual advance and sexual harassment. Then, Monica Lewinsky opened up endless corporate speculation on whether and when sex between a male boss and a female underling is consensual and when it’s abusive.

Meanwhile, an ongoing military trial for “sexual misconduct” has kept civilians wondering whether the entire Army is making love or war.

Now this week, another survey of professional women - this time doctors - made headlines announcing that a third of them had experienced sexual harassment. Buried deep was the news that many more of the female doctors had experienced hands-off kinds of harassment.

Today, we seem to think that any sex in the office - Oval or otherwise - is harassment. We also seem to think that the only harassment in the office is sexual.

How did we get to this state of cultural and legal affairs? Some 20 years ago, if a male boss was hitting on a female employee, the courts may have thought he was guilty of rotten behavior but not gender bias.

Then a new school of thinkers came up with the notion of sexual harassment and defined it as a kind of workplace discrimination. Since then, gradually and in a growing number of cases about a “hostile work environment,” the courts have focused perhaps too narrowly on sexual conduct.

As Vicki Schultz, a Yale Law professor who analyzed hundreds of such cases for an April Yale Law Review piece, says, “The courts want to see sexual come-ons. If you don’t have that, if you have other gender-based abuses, they tend to fall through the cracks.”

This whole emphasis on the lurid in the law, the sex in the harassment, has led to some overkill. There are regulations springing up in nervous corporations which are, ironically, bad for working women. At least one company is so worried about lawsuits that it won’t allow coed business trips.

But this skew has also led to some underkill. Other forms of harassment in the workplace that make it “hostile” to women aren’t being treated as seriously or successfully.

It’s entirely possible that sex sells in the courtroom because it appeals to a composite of judges - those who want to protect a woman’s “virtue” as well as those who want to protect her job. But by separating sexual and other forms of harassment, the law not only trivializes both, but may never get a true portrait.

After all, a woman may not distinguish between a work site full of pinups and one where men refuse to train her. Or between lewd talk and getting a hammer dropped on her toe. Either and both can make work impossible.

Schultz says, “Sex should be treated just like anything else that occurs in the workplace. No better and no worse. We shouldn’t say, ‘Oh, it’s sex, we can’t regulate that’ or ‘Oh, it’s sex, we have to root it out.’ If sex is being used in furtherance of gender discrimination, it should be regulated. Where it isn’t, we shouldn’t worry about it.”

This desire to refocus on work not sex, discrimination not desire, has led Schultz to call for a new way of conceptualizing sexual harassment. In the careful and colorful Yale Law Review piece, she calls it all “competence-undermining conduct.”

“Harassment,” she writes, “has the form and function of denigrating women’s competence for the purpose of keeping them away from male-dominated jobs or incorporating them as inferior, less-capable workers.” It isn’t about desire, it’s about power. The power of keeping women out or down.

Inequality in the workplace isn’t a steamy story. Indeed, I am reminded of the anecdote that the indomitable Texan Liz Carpenter liked to tell about the day she interviewed a man about his work force. “How are you broken down by sex?” she asked. “Well ma’am,” he answered thoughtfully, “liquor is more of a problem.”

In the hostile workplace, behavior that undermines a woman’s ability to keep and do the job - that’s more of a problem.