A Legacy of Dirty Laundry
(contribution to symposium on harassment law, "Hands Off -- You're Under Arrest"!)
By Walter Olson
The Women's Quarterly, Winter 1999
A few years ago feminists rammed through Congress a bill allowing harassment lawyers to grill accused men broadly about their sexual histories in unrelated cases. Who signed into law this barbarous assault on privacy? None other than Bill Clinton, a modern Falstaff who thoughtfully sets out the soiled-laundry basket he'll tumble into.
If Congress does not at least repeal that provision, you'll know nothing whatever has been learned from Zippergate. Another helpful step would be to borrow from labor-union law what's known as the "free-speech" exemption: Speech shouldn't be admitted as evidence of a legal violation if it conveys neither a threat nor a promise. That would ease managers' fears that consensual water-cooler humor will someday cost them a fortune.
Back in 1977, one prescient federal appeals judge warned his colleagues about rushing hastily into this uncharted realm of liability: They were at risk of forgetting that romantic overtures at work "may not be intrinsically offensive" and are part of "social patterns that to some extent are normal and expectable". The opinion's author? The late George MacKinnon, whose daughter Catharine soon thereafter succeeded in remaking harassment law in her own fanatical, neo-Puritan image. Psychohistorians, take it away.
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Walter Olson is a senior fellow at the Manhattan Institute and author of The Excuse Factory.
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