Monday, May 18, 1998Men on the Verge
A new sexual harassment dynamic
By Kate Zernike, Globe Staff
The Boston Globe
Second of three parts
If Anita Hill was the defining moment in the national debate on sexual harassment, Paula Jones, Monica Lewinsky, and Kathleen Willey are the emblems of a growing backlash. While women's outrage drove the debate then, men's pique does now.
All the president's women arrived amid a sharp rise in a new kind of lawsuit: Men suing their accusers to regain reputations, jobs, and sizable amounts of money. Last summer in Milwaukee, a jury ordered the Miller Brewing Company to pay an executive it had fired $24.5 million, and ordered the woman who objected to his retelling of an off-color joke to pay him $1.5 million.
Massachusetts Lawyer's Weekly recently editorialized against ''frivolous'' harassment complaints. And the state commission that judges such complaints issued new rules sanctioning lawyers who bring unreasonable claims.
While President Clinton's approval ratings soared with each new allegation of sexual misconduct, support for rigid antisexual harassment policies dropped. Amid all this, it hardly comes as a surprise that once-disgraced Oregon senator Bob Packwood, poster boy of the They Just Don't Get It generation of sexual harassers, is now being welcomed home as an elder statesman of sorts.
In part, the reflex against sexual harassment law is just another adjustment to 34 million women entering the workplace over the past 30 years. Men find a work world they once dominated now carpeted with eggshells.
Company guidelines aimed at preventing harassment lawsuits can be overly rigid and often arbitrary - one construction company recently adopted a policy specifying that workers could look at a woman passing by, but only for six seconds.
Even as court decisions like the one that spared Clinton from Jones's lawsuit have refined the definition of sexual harassment, many men say they are only more confused about where to draw the line. Who's right: Jones, tearfully pressing her case against a promiscuous president, or acquitted Army Sergeant Major Gene McKinney, filing a countersuit against the woman who led his string of accusers?
Even men who once supported Anita Hill now question laws they see as amorphous, indiscriminate, and intrusive.
''There are a number of people out there who think employers have gone too far in trying to be the sex police in the workplace,'' says Steven Berlin, a lawyer in the San Francisco headquarters of Littler Mendelson, the nation's largest law firm dealing in sexual harassment and other employment issues. ''After the Hill-Thomas hearings, the politically correct view was to be outraged with any form of sexual harassment in the workplace.... I think people have acknowledged that the law makes good sense. But at the same time they're now saying, `Are we supposed to go into the drawers of every employee to see if they have pornography?' ''
The backlash is boldest in the number of men filing countersuits against their women accusers, a tactic that has become almost as familiar in the script of a sexual harassment complaint as hiring a lawyer.
The Miller Brewing Company case could only encourage them more. The company had fired Jerold Mackenzie after he recounted a scene from the previous night's ''Seinfeld'' episode, where Jerry tried to recall his date's name, remembering only that it rhymed with a female body part. He finally chased her offscreen, yelling ''Dolores!''
Company officials said the punchline ''crossed the line,'' but the jury said the company was wrong. Not only did jurors order Miller to pay Mackenzie $24.5 million, they also demanded that the woman who complained pay him $1.5 million.
But that was merely the largest of other similar verdicts. A California jury awarded $1.8 million in 1995 to Ralph Cotran, an insurance executive fired after he was accused of sexually harassing two employees he insisted were his former lovers. That same year, Richard Dinsmore, a professor at the University of Maine, won $905,000 in damages and lawyers fees after he countersued a nursing student who prompted his firing on sexual harassment charges. He acknowledged he took her to lunch several times, gave her personal advice, and invited her to play racquetball, but insisted he was only trying to be a mentor. An arbitrator had agreed the university fired him without just cause.
It's hard to quantify how many men have pressed so-called reverse-harassment suits because the complaints are filed under many different categories: Invasion of privacy, defamation of character, wrongful termination, even violation of the right of free speech. But anecdotally, lawyers here and across the country say the suits are becoming as much a trend as the standard sort.
''For the past 18 months or so, I've seen at least as many of these kinds of cases as I have the more traditional kind of harassment cases,'' says Berlin.
Some of the reverse harassment verdicts have been overturned. Berlin, for example, appealed on behalf of the insurance company in the Cotran case, and won. And some expect the Miller verdict to be reduced or reversed. ''But the fact that there was such a big jury verdict in the first place shows that there was some sympathy for the poor men who are losing their jobs,'' said Jody Newman, a lawyer at Boston's Dwyer & Collora who represents mostly women in sexual harassment cases. ''It all comes out of this intense climate of fear.''
There have been other signs of a changing climate. A Time/CNN poll taken soon after Kathleen Willey aired her story alleging that Clinton groped her showed that those who thought sexual harassment of women was a big problem had declined to 26 percent, from 37 percent after Anita Hill; 57 percent of men thought that workplaces had become too rigid, turning ordinary encounters between the sexes into sexual harassment cases.
To gauge the shift in men's sense of who are the aggressors and who are the aggrieved in today's workplace, just listen in on the harassment-prevention workshops that have become standard for modern companies. This one is occurring in a catered conference room at the Bostonian hotel, with employees of a Boston financial company, in a field dominated by men, but with a woman president and a record of promoting women.
The group divides into three tables of men and one of women and listens to the instructions: Imagine you came to work tomorrow as a member of the opposite sex. What would you look forward to, and what would you dread?
The men look forward to this:
''You could wear provocative clothing.''
''You could flirt.''
''You wouldn't be in danger of being accused of sexual harassment.''
''You'd have better luck on the trading floor.''
Dread? They can come up with only one fear: ''Being shunned because all the men are afraid of being sued for sexual harassment.''
''I don't even risk sitting down and having lunch with a woman,'' says Roman Dutkewych, a 29-year-old analyst. ''I don't want to say anything for fear of saying the wrong thing.''
''Things we can say to each other, we can't say to women,'' adds George Harrington, 26. ''Being neutral and on eggshells around women is the only safe thing to do.''
Then, with one little word, the session goes from ''imagine this'' to real life.
Kenneth Logan, a 43-year-old analyst, refers to the women at the next table as ''the girls.''
Paul Bracy, who is running the workshop with his wife, Sheila Ralston, casually picks up the conversation and refers back to Logan's table as ''the boys.''
The ''boys'' look a little surprised. One's eyes bug out, another recoils slightly.
''Did that surprise you, my calling you boys?'' Bracy asks. ''Did anyone think that they wouldn't like being called girls?''
The women look expectantly at the men. The men just roll their eyes.
''That goes to the dread,'' protests Harrington. ''We're not all versed in political correctness. You find yourself stepping all over yourself. You'd rather not say anything.''
A friend jumps to Logan's defense, insisting he had meant no offense, it was just his buddy-buddy way. The women explain that good intentions aside, ''girl'' makes them feel belittled, incompetent.
''She referred to us as guys. What's the equivalent casual term for a group of women?'' asks one man.
Lee Francis, who moved to the company recently from London, adds, ''Things I could say in England I can't say here. That girl thing flew right by me.''
''Twenty years ago that was true here,'' says one man in his early 40s, who declined to give his name. ''Are they more progressive, or are we?'' His sneer suggests he knows his answer, and he doesn't like it.
From joke to outrage
Where did all this animosity come from?
Laws banning sexual harassment started out as a joke on the Senate floor in 1964, when Southern conservatives added discrimination on the basis of sex to the list of prohibitions in the Civil Rights Act. They presumed it such a preposterous notion that the chamber would just laugh and vote the entire bill down.
By the time Anita Hill took her place at the hearing table in 1991, sexual harassment complaints were still a relative rarity, with the annual numbers hovering between 5,300 and 6,100 for several years. But the next year, the number jumped 53 percent and would continue a steady rise, to nearly 16,000 in 1997. Damages paid out increased from $7 million in 1991 to $50 million last year.
The Astra USA Inc. case alone - in which the pharmaceutical company paid $9.8 million earlier this year to settle allegations of prostitution and debauchery at sales parties in its Westborough headquarters - shows that the law addressed a glaring problem for many working women.
But if the law against sexual harassment weeded out lecherous bosses and licentious passes, it also sprouted a host of frivolous cases. From 1991 to 1997, the number of cases that the federal Equal Employment Opportunity Commission found to be without reasonable cause increased from 34 to 41 percent, while the number of cases judged reasonable stayed relatively flat.
There was the six-year-old suspended for kissing another first-grader on the cheek. A secretary who objected to a Picasso nude. And in California, a $7 million fine for tossing M&M's down an office temp's dress. These stories became urban folklore, traded as proof that the law had gone too far.
Enter Monica Lewinsky.
''Men are thinking, if some low-level woman can come out of the woodwork and bring down the president, I'm definitely not safe,'' says attorney Newman. ''The fear is heightened because he's not just any powerful man, he's the president.''
''All this hysteria about `Oh my God, the law's gone too far'... reached a peak with Clinton,'' agrees Catharine A. MacKinnon, a professor of law at the universities of Chicago and Michigan who was a member of Anita Hill's legal team. ''Then there was this collective sigh of relief that `Oh good, nothing's going to happen to him because she wanted it.'''
But men didn't need tales from the White House or other workplaces to feed their frustration. They could look at the cases flaring up around their own.
What many concluded was that they would be presumed guilty for behavior they thought was innocent. Where there was ambiguity - and there almost always was - men felt they wouldn't get the benefit of the doubt.
In one Massachusetts sales office, a male manager of an all-women staff had a reputation for rewarding those who made big sales with frequent promotions, and invariably, a big hug and a ''Great job!'' Then one of the women accused him of sexual harassment, saying the hugs made her feel uncomfortable.
When investigators from the state Commission Against Discrimination interviewed other women in the office, they said the woman had appeared to see it as they did, as just ''his way.'' He was, they said, the rare boss who gives his employees a pat on the back - in this case, literally. The commission dismissed the case earlier this year. Still, the manager no longer makes any physical gestures toward his employees.
''It inevitably affects his psyche, even if he's been absolved,'' says Kay Hodge, who represents employers as a lawyer with Boston's Stoneman, Chandler & Miller. ''The biggest challenge is, how you put Humpty Dumpty back together again?''
Men sensed a double standard: Women could joke or act in ways that would earn their male colleagues a scolding or worse.
At a technology company along Route 128, a young woman and her supervisor grew close, going away on weekends together, attending a concert where she changed clothes in his car. She was married, but frequently complained about her husband, saying she wanted ''a life outside'' her marriage. He told people, ''If the times were different, we'd be dating.''
Both insisted they were not having an affair. Both were warned that their behavior was inappropriate. But it continued, to the point where he began calling her office almost a dozen times a day. She complained to a company vice president, then hired a lawyer and late last year left the company with a settlement awarding her six months' pay. Her supervisor quit.
''She played him like a fiddle,'' says one senior manager who asked not to be identified because of the confidentiality provisions of the settlement. ''His behavior was inappropriate, but she was contributory.''
''Men's and women's relationships have always been very complicated, and it's very difficult to sort out the truth when you have those sorts of ambiguities,'' says David Rosenthal, who represents both the accused and accusers at Hutchins, Wheeler & Dittmar in Boston. ''Not that there isn't a lot of nasty sexual harassment in the workplace. There are a lot of predatory guys out there. But that's not the bulk of these cases.''
Insurers say liability protection against sexual harassment claims is the fastest-growing category of sales in their industry. And rather than risk a lawsuit, some companies are trying to rein in behavior that strays into dangerous territory. Many have banned romantic relationships - even between co-workers - lest they go sour, as surveys show most do. More recently, companies have ruled out travel involving two colleagues of the opposite sex. Policies warn employees not to discuss personal lives or crack jokes that might be construed as sexual, even if it appears that the listener finds them funny.
''Today's joke is tomorrow's lawsuit,'' says Kenneth M. Bello, a lawyer with Boston's Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, who designs sexual harassment policies for companies. ''Companies want their employees to be scared.''
But if all these rules have made the workplace less hostile, they have also made it more chilly, at a time when employees are spending more and more time at work. Colleagues who used to work hard and play hard are now just working, and in many cases, bitter.
''We've become androgynous,'' complains the male senior manager at the technology company. ''I won't go out for cocktails with anyone unless there are multiple people involved. I won't ask anyone to lunch. You don't ask a young woman, `How was your weekend?' `How're things with Bill?' God forbid she thinks you were prying because you are interested. And clearly the joking has cut way, way, down.
''It's okay,'' he adds. ''On the other hand, we had a lot of laughs.''
The coming thaw?
To many, the Clinton allegations have occasioned a re-examination of the corporate rules on sexual harassment. Some companies now are easing bans on interoffice dating, realizing they can't regulate human relationships.
Courts and other agencies like the Massachusetts Commission Against Discrimination are attempting to clarify the definition of sexual harassment. Judge Susan Webber Wright's decision to dismiss the Paula Jones case did that, as did the recent Supreme Court decision allowing employees to bring sexual harassment charges against members of the same sex. The high court is expected to rule in three more sexual harassment cases before the end of its term this summer, further refining the law.
Of course, whether that sorts out the actual relations between men and women in the workplace is a different question.
''Sexual harassment is just the sexualization of the confusion between the genders,'' says William Pollack, head of the Center for Men at Harvard's McLean Hospital in Belmont.
''It's the age-old crisis of relationships. If we think we're going to solve that in the courtroom, I'd say we're wrong.''
This story ran on page A01 of the Boston Globe on 05/18/98.
© Copyright 1998 Globe Newspaper Company.