The meaning of sexual harassment has been expanding and may soon embrace "second-hand harassment" — a notion similar to second-hand smoke.
An example of second-hand harassment is the downloading of "offensive" — usually adult — material onto a computer screen that someone else might glimpse. Or reading an "offensive" book that someone standing over your shoulder might see.
On May 23, the Minneapolis office of the Equal Employment Opportunity Commission ruled that the city's central library may be creating a "hostile working environment" for librarians by allowing patrons to download materials from the Internet without restriction.
The alleged harassment was not by an employer or a co-worker but by patrons, by customers who use a service. No intent to harass seems to be present.
The EEOC's ruling may represent a shift in how sexual harassment is defined.
Traditionally, harassment has required not merely the presence of offensive material but also offensive behavior, such as making unwanted comments. If the mere act of reading something constitutes sexual harassment of another, then the First Amendment is in trouble.
The ruling was a "determination" — the preliminary manner in which the EEOC indicates that it has reason to believe discrimination has occurred. The agency's next step is to attempt resolution through mediation. But librarian-complainant Wendy Adamson has reportedly stated that the EEOC has already advised the library to pay $75,000 in damages to each of the complaining employees. If true, the EEOC seems to be proposing a settlement prior to mediation, like sentencing before a trial.
The library has reason to listen. If it refuses mediation, the EEOC can send the complaint to the Department of Justice, which can prosecute.
The library has not ignored the librarians' complaints. Last spring, it instituted policies aimed at controlling access to its computers. There is a sign-up procedure requiring I.D., and time limits on the computers' use. It has also proposed adding blinders or privacy screens on computers and segregating the terminals used by children in much the same manner as children's books.
By introducing the federal clout of the EEOC, the situation in Minneapolis may become the basis of new policies that can affect everyone. If the EEOC's final guideline finds that the absence of Web filtering is sexual harassment, then all workplaces — public or private — will feel the threat of lawsuits.
The broadening of what constitutes sexual harassment has occurred before.
Legally speaking, sexual harassment is rooted in Title VII, the fair employment provision of the Civil Rights Act of 1964. Section 703(a) states that it is "an unlawful employment practice" for an employer to discriminate on the basis of "race, color, religion, sex, or national origin." This provision was later extended to cover sexual harassment as a form of gender discrimination.
Originally, sexual harassment in the workplace hinged upon the presence of a "quid pro quo": that is, a demand for sexual favors in exchange for professional gain. In the early 1980s, the EEOC ruled that sexual harassment included the concept of "a hostile working environment." The door opened wide for complaints and lawsuits based upon "hostile environments" created by tasteless jokes, the posting of Playboy centerfolds, etc.
Sexual harassment has undergone redefinition in academia as well. A commonly cited definition by the researcher F.J. Tilly captures its essence. Sexual harassment in academia is "the use of authority to emphasize the sexuality or sexual identity of a student in a manner which prevents or impairs the student's full enjoyment of educational benefits, climate, or opportunities." This definition removes intention from sexual harassment. Complaints can be based on such subjective standards as the assignment of standard reading material, or the frequency with which female students are called upon in class.
Now, depending on what happens in Minneapolis, the mere absence of Web filtering in any workplace may become sexual harassment.
The library faces a legal dilemma. Fearing huge settlements for sexual harassment, it may be forced to restrict the freedom of patrons to access information. But, if it uses filtering software, it will probably encounter First Amendment challenges from the American Civil Liberties Union and the American Library Association. A law requiring libraries and schools that receive federal funds to use filtering software beginning in July 2002 has already been challenged by both groups.
Since the consequences of losing an EEOC suit are almost certainly more expensive than losing a freedom of speech case, the situation has a built-in bias against the First Amendment.
It is not clear what will happen in Minneapolis. The EEOC's ruling is preliminary. It is also brief and does not explain how the determination was reached. The EEOC may be simply testing the water to see how much opposition a new definition of sexual harassment would encounter. In doing so, the agency comes perilously close to overruling the Constitution.
McElroy is the editor of www.ifeminists.com. She also edited Freedom, Feminism, and the State (Independent Institute, 1999) and Sexual Correctness: The Gender Feminist Attack on Women (McFarland, 1996). She lives with her husband in Canada, and can be reached at email@example.com.