Office Crimes

By NANCY GIBBS

Last week America set about smashing china and moving furniture around in the household of its public morality, with the knowledge that before it was all over no one would know where to find anything anymore. Conversation became suddenly careful; the pinups were peeled off the wall. The issue of sexual harassment -- what it is, why it happens, who's to blame -- was a fascinating topic to obsess upon as a nation, wonder about in private, argue about in public. It was also a long, bruising week of bumping into issues that many of us didn't know were there.

In America's workplaces, men and women reintroduced themselves with a suspicion that their relationships had changed forever. Men who have worked closely with women for years asked them flat out, "Have you ever felt threatened or insulted or offended by anything I've said or done?" Many women privately shared their experiences and their anger, for the first time taking seriously behavior they had long taken for granted. Some of them, wary of being cast as victims, wondered whether in the end all the sudden attention to the issue would do them more harm than good.

The issue of sexual harassment ricochets off other crucial debates this country has yet to resolve about the boundaries of morality and law. The boss who kept his employees' menstrual cycles marked on a wall calendar was, by any measure, a lout. Was he a criminal? How useful is it to establish a category of behavior that runs the gamut from rudeness to rape? Should it be embedded in the law that men and women react differently to the same comments and behavior?

The questions and conversations were all the more pointed because, despite the clarity of the legal language, sexual harassment is a complex issue, its incidence difficult to measure. It is uniformly cast as a gender issue, since the overwhelming majority of cases involve female workers being harassed by male colleagues and supervisors. But when pollsters ask women whether they have ever been targets of harassment, the answers depend on how the question is phrased, which helps explain why some surveys find that 90% of women view themselves as victims and others find less than half that number.

As last week's crash course made clear, most women and men, especially most + Senators, had only the barest understanding of the power of the law. Under Equal Employment Opportunity Commission guidelines issued in 1980 and unanimously affirmed by the Supreme Court in 1986, sexual harassment includes not just physical but also verbal and "environmental" abuse. Under the law, there are two broadly recognized forms. The first involves a "quid pro quo" in which a worker is compelled to trade sex for professional survival. In 1986 an Ohio woman won a $3.1 million verdict against an employer who invited her to perform oral sex or lose her job.

The other part of the law refers to a "hostile working environment," and it is here that the debates get most heated. The phrase covers any unwelcome sexual behavior that makes it hard for a worker to do her job or that creates a hostile or offensive environment. Charles Looney, regional director of the EEOC New England office in Boston, says the courts are more concerned with the woman's reaction than the man's intent. "If I run a stop sign, I have broken the law even if I did not intend to," he says. "People can create hostile environments without knowing that it would be considered sexual harassment, but they are still liable."

The courts may have worked it all out, but most Americans have not. As people wrestled last week with the ambiguous definitions of sexual harassment, many were left with a conviction that, as with pornography, they know it when they see it. The ugly realities of many American workplaces give the legal language its vividness. There is, for instance, the case of Edith Magee, who worked a shovel and drove a dump truck for the St. Paul, Minn., sewage department. "There was always this implied threat that if they didn't like you, they would use their authority to get you in trouble," she says of her supervisors. Her employer settled her case for $75,000 but denied any wrongdoing. "I knew when I walked into the lunchroom and my boss was reading Hustler, it was going to be bad," she says. "He'd show me pictures of dildoes and say, 'Is your husband's this big?' There was no way you could push him away. He would just go and go and never stop. The idea was, if you were a female and did something as low-class as shovel, then you deserved what you got."

Such stories, echoed a thousand, a hundred thousand times last week, helped lawyers explain that sexual harassment is not about civility. It is not about a man making an unwelcome pass, telling a dirty joke or commenting on someone's appearance. Rather it is an abuse of power in which a worker who depends for her livelihood and professional survival on the goodwill of a superior is made to feel vulnerable. "This is not automatically a male-female issue," says Wendy Reid Crisp, the director of the National Association for Female Executives, the largest women's professional association in the country. "We define this issue as economic intimidation."

Edith Magee is typical in that the most common targets of harassment in blue-collar jobs tend to be women who are breaking into fields once dominated by men. In white-collar professions, most victims are "women in lowly positions," says Susan Rubenstein, an attorney in San Francisco who specializes in sexual-harassment cases. "A secretary will get harassed before a lawyer, a paralegal will get harassed before an associate." Particularly in male bastions, women find that feminism becomes, ironically, a weapon in the attack.

"It's not just some guy grabbing you and pushing you in a closet and saying, 'If you don't let me fondle you, I'm going to fire you,' " explains Susan Faludi, author of a new book, Backlash: The Undeclared War Against American Women. "It's more the subtler form of making women uncomfortable by turning the workplace into a locker room and then telling them, 'What's the matter, you can't handle it? You wanted equality; I'm going to give it to you with a vengeance.' "

Faludi cites the case of Diane Joyce, who fought for 17 years to become the first female skilled crafts worker in the history of Santa Clara, Calif. The real fight began after she finally started the job. When the roadmen trained Joyce to drive the bobtail trucks, says Faludi, they kept changing instructions; one gave her driving tips that nearly blew up the engine. She had to file a formal grievance just to get the pair of coveralls that she said were withheld from her. In the yard the men kept the ladies' room locked, and on the road they wouldn't stop to let her use a bathroom. "You wanted a man's job, you learn to pee like a man," she recalls a superior telling her. "She is not talking about being attacked in the office," says Faludi. "It's a slow, relentless accumulation of slights and insults that add up to the same thing -- the message that we don't want you here and we are going to make your hours here uncomfortable."

In the years since women were integrated into the armed forces, that once all-male preserve has struggled to counter the macho image that long prevailed. SEXUAL HARASSMENT IS NOT FROWNED ON HERE; IT'S GRADED was one sign, now removed, in the Pentagon. By and large, the military has succeeded in impressing officers with the importance of the issue, though enlisted men are not always as enlightened. But there is one big exception, according to Linda Grant De Pauw, president of the Minerva Center, an educational facility dealing with women in the armed services. "The absolute military ban on homosexuals creates an opening for sexual harassment," she says. "Military women live in mortal fear of being called a dyke. When the man says, 'Sleep with me or I'll say you're a lesbian,' it is terrifically effective where women know they may be kicked out if the charge is made."

Defining unwelcome or offensive advances sounds like a subjective judgment; many people last week were worried that sexual harassment is anything an accuser says it is. But in a landmark ruling, the Ninth U.S. Circuit Court in California ruled that the law covers any remark or behavior that a "reasonable woman" would find to be a problem -- and acknowledged that a woman's perception might differ from a man's. Judge Robert Beezer wrote that "conduct that many men consider unobjectionable may offend many women." He noted that because women are much more likely to be victims of rape and sexual assault, they have a "stronger incentive to be concerned with sexual behavior." Men, in addition, are more likely to view sexual conduct as harmless.

Underneath that reasoning is the notion that there is a continuum running from the innocent gesture to the brutal assault. It is an interpretation fused to an ideology that places all behavior in the context of male power. In the view of Boston University psychology professor Frances Grossman, "From the guys who wink on the street to the biology professor who tells a sexist joke in class, to the guy who says, 'Hey, baby, let's go out,' to the guy who rapes -- all are of a piece in their role of disempowering women. Men say these are not related behaviors. Flirting and jokes are fine, and rape is bad, they say. But increasingly, sociologists say they all send the same disempowering message to women."

That line of argument brings shouts of anger not only from men who feel maligned but also from women who feel belittled. They argue that women do themselves and their careers no favor when they play victim or perpetuate an % unhealthy culture of self-pity by asking to be coddled and protected from rudeness and boorish behavior. Sexual harassment is not about sex; it is about power, the reasoning goes, and if women act powerless at work, they will almost certainly be taken advantage of.

Here is a rare intersection between the opinions of some ardent feminists and some profound antifeminists. "If a girl can survive high school, she ought to be able to deal with the office," says Phyllis Schlafly, a longtime crusader against feminist causes. For Schlafly, the sexual-harassment argument is a perfect example of how "feminists are asking to have it both ways." Says she: "They have spent 20 years preaching that there isn't any difference between men and women, and now they want to turn around and claim sexual harassment if somebody says something that they don't like." The very issue is patronizing, says Schlafly, because it implies that women cannot handle uncomfortable situations without the help of government.

This is not just the view of an extremist. Scholars such as Ellen Frankel Paul, deputy director of the Social Philosophy and Policy Center at Bowling Green State University in Ohio, argue that the courts are a dangerous mechanism for policing behavior. "Do we really want legislators and judges delving into our most intimate private lives," she asks, "deciding when a look is a leer and when a leer is a civil rights offense? Should people have a legally enforceable right not to be offended by others? At some point, the price for such protection is the loss of both liberty and privacy rights."

From this perspective, women have a lot to lose if they press the issue of sexual harassment too far. Particularly in white-collar settings, younger workers rely on mentors to help them learn the ropes and advance their careers. If a boss is afraid that his interest in a protege's success will be misconstrued, the safer path is to avoid mentor relationships. "While it is perfectly fine -- and normal -- for a mentor to say to a man, 'Let's have a drink, or play golf, and talk about that promotion,' it's harder for a mentor to do that with a woman outside strict business hours without incurring some legal risk," notes Terry Morehead Dworkin, a business-law professor at Indiana University. One solution, of course, is for more women to be in the position to promote younger women, but in many corporations that day is still far off.

Some men last week were also impatient with the way the issue has been cast. Though his view is hardly typical, Fredric Hayward, the executive director of Men's Rights Inc. in Sacramento, examines the exact same situations but finds a different victim. Men may wield professional power, he says, but women have sexual power. "If I or a woman does not get a job because a female competitor displays more enticing cleavage, then what are we victims of?" he asks. "If I or a woman does not get a promotion because a female competitor has an affair with our boss, then what are we victims of?" In his view, men and women have an equal incentive to abuse whatever power they have. "For every executive who chases an executive around the desk," he declares, "there is a secretary who dreams of marrying an executive and not having to be a secretary anymore."

There are many possible answers to Hayward's characterization of women's professional behavior, which points to the dangers of generalization on this issue. One rebuttal might come from all the women who have struggled to erase their gender at the office door. "The minute I get in, I become one of the guys," says stand-up comic Reno, who works in comedy clubs. "I've got to take my breasts off and talk from the head up and slap everybody around. I become this desexualized creature so that we can all work together."

Susan Webb runs a consulting firm in Seattle that helps companies educate their employees about the issue of harassment. She says men almost always greet her with derision. "So now we're going to find out how to do it" is one reaction. Or, "I've been trying for years to get someone to sexually harass me." Says Webb: "The laughing is not because they are mean or bad, but because they really don't understand it." Part of what fuels the initial jokes, says Webb, is the fear of being blamed for or embarrassed about sexual harassment.

Many male supervisors are now wondering how careful they will have to be with their humor, their offhand remarks, their courtship of colleagues in whom they are romantically interested. Florida state representative Kathy Chinoy is a lawyer whose specialty is sexual harassment. She finds that many of her colleagues in the statehouse are genuinely bewildered by the issue, though younger men, who grew up with a different code of conduct, seem to have a more acute understanding. She recommends a simple litmus test for men who are seeking guidance on what is appropriate and what is not: "Would you want your mother, sister or daughter exposed to that?"

The confusion can cut both ways. For a woman who is attracted to her superior, the inferences that colleagues may draw from that relationship make her think long and hard before entering into a romance. Is it worth it for me to date my boss, a woman may think, if in the future others will snicker that my success has come about not because of my talent but because I'm involved with my supervisor?

How can it be, many people wondered last week, that such a huge majority of women seem to have had some visceral and personal experience with this issue and yet so few cases ever end up being formally settled, by the employer or by the court? Those who charge that the issue is exaggerated point to the tiny number of sexual-harassment charges -- 5,557 complaints -- that ended up before the Equal Employment Opportunity Commission last year. It is true that cases are also handled in private litigation, but overall the number of formal complaints reflects a minuscule fraction of the number of women who say they have experienced harassment at work.

But the fact that there is a wide gap between what women say they experience and what they take to court sheds considerable light on the issue. Lawyers are loath to take such cases, because the risks are great and the rewards small. The burden of proof is very high; as the Eighth Circuit Court of Appeals in St. Louis noted in one ruling, the laws on sexual harassment "do not mandate an employment environment worthy of a Victorian salon." When women were asked why they had never taken formal action, the answer was stunningly consistent: Why commit professional suicide?

Though Anita Hill brought the issue into the spotlight, she was preceded by another highly visible, impressive and articulate woman who helped shape the national debate. When Stanford University neurosurgeon Frances Conley resigned her post this year to protest the behavior of her male colleagues, she forced men and women to weigh the costs of taking complaints public. Conley made a useful lightning rod, since by her demeanor she dispelled the notion of accusers as crybabies or oversensitive types who are not sophisticated enough to cope with office banter. She announced last month that she would rejoin the faculty, having been persuaded that her message had been heard.

It remains to be seen what will become of Hill once the passion of this public moment subsides. But for women with less of a pulpit, the results of coming forward can be devastating. Simone Lochlear, a 28-year-old restaurant manager in the South, filed a sexual-harassment suit against the manager of Washington's Dubliner Restaurant and Pub, who she alleged twice asked her to perform oral sex in front of another employee. After she filed a claim at the District of Columbia's human-rights office, she says, the manager had a private detective follow her and take notes on how she worked. She was fired two months later for failing to ring up drinks correctly. Her employer denies her charge, and she is still awaiting a ruling on her case. "It makes me really angry that someone could do this to me and mess with my mind. I was standing up for what was right and became the victim."

For many women the decision about whether to take any action or lodge a complaint is an economic one. Any action that might lead to loss of a job, or even alienation from co-workers, may seem too costly even for one's dignity or peace of mind. Anita Allen, a black woman who grew up in the South, became a philosophy professor at Carnegie-Mellon and went on to become a Wall Street lawyer. Last year she taught at Harvard law school as a visiting professor. "I have experienced sexual harassment in every area that I have worked, from comments to innuendo to times when I have literally been chased around a desk," she says. "I have accepted jobs from people who engaged in sexual harassment because I needed the job. I never considered a legal suit. I tried to pretend it didn't happen. Today I'd be different."

The financial cost is often high as well. The only time the EEOC provides free legal help is when it chooses to take the case to court -- a rare occurrence. Women must typically hire private litigators, many of whom demand high fees because the cases are so hard to win and the settlements so low. Under the Civil Rights Act of 1964, a woman who wins a suit is entitled to reinstatement with back pay. There is no provision for punitive damages, though some state and municipal laws are more generous. The civil rights bill that is now pending would allow for punitive damages, but President Bush has promised a veto.

In the absence of any strong federal enforcement, the responsibility for addressing the issue has fallen to private employers. Their interest in the problem is self-interest: the courts have ruled that companies are liable for their employees' behavior, even if they are unaware of it and have anti- harassment policies in place. According to a 1988 survey of FORTUNE 500 companies by Working Woman magazine, ignoring the issue costs a typical FORTUNE 500 company as much as $6.7 million a year in absenteeism, turnover and lost productivity. Three-quarters of the firms have established anti- harassment policies, 90% have received complaints, and 64% acknowledge that most of the complaints they hear are valid. In roughly 80% of cases, the harasser is reprimanded; in 20%, a firing results.

But whatever standards and expectations were in place before last week, they now lie in pieces on the office or the factory floor. Too many conversations occurred, too many stories were told, for men and women to return comfortably to old patterns of behavior. In the immediate future, progress may come on tiptoe. For a little while at least, an excess of care, though dampening the easy working relationships both men and women value, may be an appropriate antidote to so many years of clumsiness and indifference to this issue. Once the ground settles under everyone's feet, perhaps the intricacies of the law will become less important, because the standards of acceptable behavior will have been forever raised.

CHART: NOT AVAILABLE

CREDIT: TIME/CNN poll by Yankelovich Clancy Shulman

CAPTION: Have you ever experienced what you regard as sexual harassment at work?

Should a man found to have engaged in sexual harassment of a woman be fired from his job?

Do you think sexual harassment occurs when a man who is a woman's boss or supervisor:

Flirts with the woman

Makes remarks to her that contain sexual references or double meanings

Frequently puts his arm around her shoulders or back

Insists on telling sexual jokes to her

Insists on discussing pornographic acts with her

Pressures her to go out to dinner with him

Asks her to have sex with him

With reporting by Priscilla Painton and Andrea Sachs/New York and Jeanne L. Reid/Boston