Sexual harassment and the law: a legal little shop of horrors

Christopher R. Barron Chairman of the Board, GOProud
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Lost in the press’s non-stop hunger for a lurid he-said-she-said regarding the allegations against GOP presidential candidate Herman Cain is a more basic look at the nature of sexual harassment claims in this country.

As a recovering trial lawyer, I know first-hand how messy our legal system can be, but even I am shocked at the sorry modern state of sexual harassment law.

Instead of focusing on the claimed constitutional protections of suspected foreign terrorists held at Guantanamo, maybe the ACLU and the rest of the faux civil libertarian left should be spending a little more time concerned about egregious infringements on the constitutional rights of American citizens here on American soil. A good starting place would be taking a look at the state of sexual harassment law in this country, which can best be described as a legal little shop of horrors.

Our sexual harassment laws often undermine free speech. The claims themselves are incredibly easy to allege, incredibly difficult to defend, have been expanded to cover almost any type of speech and underscore the need for real and serious tort reform in this country.

Earlier this week, conservative author and former lawyer Ann Coulter caused waves when she said that getting charged with sexual harassment in the 1990s was akin to being charged with witchcraft in the 1690s. As usual, Coulter is both shocking and absolutely correct at the same time.

Sexual harassment has occurred for centuries, but legally speaking sexual harassment didn’t exist before the 1970s. During the ’70s, feminist lawyers undertook what has been described as a “concerted assault, of unprecedented magnitude and force, on the practice of sexual harassment. Responding on many fronts to the demands of the second-wave feminist movement, the American legal system began slowly to yield to this challenge, and for the first time recognized women’s right to work free of unwanted sexual advances.” (A Short History of Sexual Harassment, Reva Siegel, Yale Press).

As is so often the case, the road to hell is paved with good intentions. Few would argue that real sexual harassment isn’t problematic. Indeed, even conservative critics of sexual harassment laws like UCLA Law Professor Eugene Volokh make it clear that certain types of workplace harassment should be barred including: unwanted physical conduct, discrimination in job assignments, quid pro quo harassment (“sleep with me or you’re fired”) and unprotected speech like threats, fighting words and slander. (Eugene Volokh, What Speech Does “Hostile Work Environment” Harassment Law Restrict?, 85 Geo. L.J. 627 (1997)).

The problem is that sexual harassment law hasn’t stopped there. Instead, sexual harassment law has expanded dramatically, threatening basic First Amendment free speech protections and creating an environment where liability attaches almost anywhere, at anytime and under almost any circumstance.

As Prof. Volokh has accurately pointed out, workplace harassment laws have spiraled out of control. Virtually every place is now considered a workplace, almost any speech — even isolated speech not targeted at the plaintiff — can now give rise to a claim and a hostile work environment can be the product of a patron of an establishment — not just an employee!

Workplace harassment laws have even been used to justify the left wing’s politically correct attack on free speech in the form of college campus speech codes.

The plaintiff’s bar has only exacerbated the problem. Trial lawyers looking to make a quick and easy buck off of this out-of-control system extol the ease of making and recovering for a sexual harassment claim. Indeed, a leading sexual harassment lawyer in California, John Winer, has an entire website — SexualHarassment.com — set up to tell perspective clients how easy it is to win cash in a claim.

Included on this website are assurances that “90-95%” of sexual harassment cases are settled before trial. The site also lets erstwhile “victims” know that no physical touching is required — going as far as to say that “in fact, visual harassment, including leering looks, offensive gestures or derogatory posters, cartoons or drawings have been found sufficient to create a hostile environment.” That’s right — “leering looks”!

Apparently, the reported Cain settlement of $35,000 would be peanuts according to the “sexual harassment expert.” Winer says on his site that “every good liability sexual harassment case has at least a six-figure potential value,” and includes tips on how to win million-dollar-plus verdicts (tips like: make sure the defendant is a big corporation).

Trial lawyers are aided by a legal system that does nothing to discourage false or frivolous claims.

Conservatives everywhere should use this event as a “teachable moment.” Not a teachable moment about opposition research or campaign damage control, but instead one focused on how we can reform sexual harassment laws specifically, and our legal system more generally. We need laws that are more narrowly tailored to the actual problem. We need laws of specificity — not vague laws that can be twisted and abused. And we need to ensure that our laws respect our First Amendment rights. We also need fundamental reform of the process. We need a loser pays system that discourages frivolous suits and we need tort reform that limits punitive damages.

Christopher R. Barron is a Republican political consultant and chairman of the Board of GOProud, a national organization for gay conservatives and their allies. He blogs at Red Barron.