Donald Trump says he was only engaging in “locker room talk” when he spoke of the power conferred upon him by his celebrity to grab a woman’s genitals, but many women saw an all-too-familiar case of workplace sexual harassment. Though Trump was speaking privately in this case, his critics have good reason to suspect these were more than just obnoxious words. The internet is abuzz with reports of numerous female employees about groping, grabbing, threats, and firings at Trump’s companies or even by the Donald himself.
“Protections against harassment since the benighted 1950’s have grown and flourished, even to the point of blowback.”
But there’s a big risk in imagining that an ever-expanding Trump rap sheet means that we’re still living in Don Draper’s world. Protections against harassment since the benighted 1950’s have grown and flourished, even to the point of blowback.
Title VII of the 1964 Civil Rights Act prohibited sex discrimination in the workplace, though it wasn’t until 1976 that a federal court expanded the definition of discrimination to include quid pro quo propositions by bosses, a ruling that was confirmed by the Supreme Court in a matter of years. Following these rulings, an enormous body of case law and of state and federal regulations have crowded onto law firms’ bookshelves. Several states have even mandated harassment training for all private and public employees.
They probably didn’t even need to. The media is full of stories about women in particular who are afraid to bring charges for fear of retaliation. Less familiar are the stories about companies terrified of expensive lawsuits. Many have covered themselves by instituting their own anti-harassment procedures and training, following Equal Employment Opportunity Commission recommendations. For this they rely on human resources professionals, who are now, not surprisingly, part of a booming industry. A growing cadre of gender equity specialists and consultants have also made themselves ready to help.
As litigation, paperwork and the anti-harassment labor force spread, so inevitably has the definition of the crime. What started as a law to protect employees from bosses threatening to punish an employee who refused their sexual advances spread to the vaguely worded “hostile environment.” The legal scholar Eugene Volokh who has been keeping tabs on harassment law’s infiltration into First Amendment territory finds that hostile work environment now “draws no distinction among slurs, pornography, political, religious, or social commentary, jokes, art, and other forms of speech.” Two cases make the point: in one a professor complained about a print of Goya’s “Naked Maja” hung in a classroom and in another an employee complained that a co-worker had posted a New Yorker cartoon with the word “penis.” In both instances, the institutions agreed to take down the offending items.
What all this suggests is that both the government and companies have gone to great lengths to address workplace harassment — perhaps too great. Some of the methods designed to help working women with harassment, actually appear to be harming them. Several studies have found that men who have completed workplace anti-harassment training are less willing to report sexual harassment, more likely to view women as weak and unable to fend for themselves, and more reluctant to work closely with female staffers.
Trumpian grabbing is a crime, but it doesn't set back women's progress. The trick now is to punish sexual harassment without adding to discrimination against men or women.
This piece originally appeared at The New York Times' Room for Debate
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Kay S. Hymowitz is a senior fellow at the Manhattan Institute and contributing editor at City Journal. She is the author of the forthcoming book, The New Brooklyn: What It Takes to Bring a City Back.
This piece originally appeared in New York Times Room for Debate