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Regardless of personal or partisan opinion, one must admit that President Clinton has fostered a "national dialogue" superbly. Talk shows devote considerable time to the dialogue, editorialists constantly opine on it and ordinary dining civilities regularly touch it.
Yes, one must credit President Clinton for realizing his national dialogue, with a caveat: The topic long ago shifted from race to sex. Last week, he joined a pitiable and forgettable discussion organized by ESPN on race in sports. Meanwhile, the chattering class, the middle class, the overclass and even elementary school classes debated sex and politics.
For three months, Americans have been engaged in the most serious debate about sex and politics since "the personal is political" became the bloody flag for feminists to rally around. Harvard officially joins the debate this week with Take Back the Night. Indeed, undergraduates tonight will meet to discuss "contemporary legal and political issues confronting women."
One might think all this debating would benefit American democracy. But that would be naive, for the most important debate on sex and politics in some years occurred this morning before nine lawyers, clad in black and insulated from the public. They heard arguments on an issue of no less consequence than the very definition of sexual harassment.
Burlington Industries v. Ellerth asks if unwanted sexual advances constitute sexual harassment in the event that those advances result in no tangible job detriment. Burlington Industries employed Kimberly Ellerth, whose supervisor was Theodore Slowik. Ellerth accuses Slowik of unwanted advances, such as telling her to wear shorter skirts and to loosen up and have some "fun." Ellerth also alleges Slowik implied he would demote or dismiss her unless she complied.
Ellerth altered neither her taste in dress nor her sociability. And despite the alleged implied threats, she suffered no tangible detriment, but received promotions and pay raises. Nonetheless, she quit her job and sued Burlington for not sanctioning Slowik. Last summer, the Seventh Circuit Court of Appeals sympathized with Ellerth, essentially ruling that one does not need the quo in order to prove quid pro quo sexual harassment.
Ellerth's case should sound familiar. The spark to our present debate was Paula Jones's sexual harassment case against President Clinton. Jones made Ellerth's argument, that unwanted advances with no tangible detriment still constitute sexual harassment. Unfortunately for Jones, District Court Judge Susan Webber Wright disagreed with the Seventh Circuit: Judge Wright unceremoniously dismissed Jones's case earlier this month, holding that it was groundless without proof of detriment.
Which position is correct? The answer to that question is not clear, but one thing is: Answers abound. Since January, most Americans have developed genuine opinions regarding sexual harassment. Yet those opinions will not influence the law, for it is made not by duly elected representatives, but by unaccountable bureaucrats at the Equal Employment Opportunity Commission (EEOC) and by the justices of the Supreme Court.
Perhaps against inclination, we must not blame these persons for short-circuiting representative democracy in this instance. No, the blame here rests on Congress. Sexual harassment clearly has been a matter of much public concern, going back past President Clinton's troubles and to the farcical 1991 Thomas-Hill hearings. Sexual harassment law rests on the congressional foundation of Title VII, which makes it illegal "to fail or refuse to hire or to discharge...or otherwise discriminate against" someone based on sex. From that foundation, the EEOC and the courts have done their best (which is often very bad) to construct an edifice of sexual harassment law.
That unwieldy edifice no longer suits us, to say the least. Congress could resolve this sorry situation by legislating a more precise statutory definition of sexual harassment. Such legislation could revise and reform our current ad hoc law. Moreover, it would reflect the genuine opinions of Americans, as representatives and senators surely would receive and earful from their constituents.
Don't hold your breath. Congress all too often abdicates its duty, passing vexatious policy questions to the bureaucracy and the courts via vaguely worded statues. By doing so, legislators avoid taking stances on controversial issues, which is to say they protect their hides for the next election. The phenomenon is not isolated to sexual harassment: Congress has punted continually on racial preferences, environmental regulation, entitlement reform, etc., ad nauseam.
Such diffidence frustrates representative democracy by telling citizens their genuine opinions do not matter, which is just another way of saying they are incapable of self-government. To prove otherwise, we need to reclaim for politics such properly political matters as sexual harassment law. We need to compel Congress to confront such matters if we are to continue to demonstrate our capacity for self-government through representative democracy. In short, we need to re-politicize our politics.
Thomas B. Cotton '98 is a government concentrator in Adams House. His column appears on alternate Wednesdays.
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