All Commentary
Sunday, December 1, 1996

The Sexual Harassment Lemon Law

Sexual Harassment Lawsuits Destroy Jobs and Entire Companies

Ms. McCarthy, co-owner of Amel’s Restaurant in Pittsburgh, has written on sexual harassment issues for Forbes, Regulation, Restaurant Business, and the University of Wisconsin’s Small Business Forum.

Mitsubishi Motors, facing what is threatening to become the biggest sexual harassment case in history, gave 3,000 of its employees a day off with pay to demonstrate against a lawsuit filed by 29 fellow employees with the Equal Employment Opportunity Commission.

One of the protesters, Kathleen McLouth, 42, a parts-deliverer at the Mitsubishi Motors plant near Chicago, exhibited more common sense than the collective wisdom of the National Organization for Women, Congress, and the U.S. Supreme Court when she said, Sexual harassment has got to exist—you can’t have 4,000 people and not have it exist.

This does not mean, of course, that McLouth wants sexual harassment to exist, or that she approves of it, but that she knows it will recur as inevitably as crabgrass or stinkweed. When weeds or pests appear on the scene, most of us have learned the big lesson of Vietnam—that it’s better not to destroy a village we’re trying to save. When you call the Weed-B-Gone man, you don’t expect him to blow up your house.

Unfortunately, when it comes to sexual harassment law, Congress and the Supreme Court have concocted a cure that’s worse than the disease. A sort of sexual harassment hysteria has erupted because of a definition so broad and so vague as to cause people like Bernice Harris, 58, a cashier in the U.S. Senate cafeteria, to be accused of harassment for calling her customers honey and sugar. Being called baby, complained Christopher Held, an employee of Senator Mitch McConnell, was real bothersome.

In the days before $300,000 fines could be levied for a sweetie in the cafeteria line, such petty slights would have been overlooked. To ignore a slight nowadays is like tossing out a winning lottery ticket.

With global sales of $38 billion, Mitsubishi employs workers who are among the best paid in the auto industry, but has only one assembly plant in the United States—the one being sued for sexual harassment. I get fair wages. I get fair benefits. There’s an opportunity for me to move up, says Jane Hieser, a 43-year-old body shop worker. I get better backing here as a woman than I’ve ever gotten before.

Hieser sounds like the women I heard testify at the trial of a bartender at the former Pittsburgh Sports Garden, a nightspot frequented by Steelers, Penguins, Pirates, and their fans. Many women said it was the best place they’d ever worked before it collapsed under the weight of a sexual harassment suit. Though the owners knew nothing about the dispute between a bartender and a waitress, the small business closed down the day the guilty verdict was announced.

Sexual harassment lawsuits can be job crushers, and if the damages are big enough they can destroy a company. The way the current sexual harassment law is constructed, the company and totally innocent employees pay a bigger price than the actual harasser.

The economic threat to a company through a class-action lawsuit is often so large as to border on extortion, but the threat of economic extinction is only part of the picture. The employees of Mitsubishi are in for a rough, ugly ride where their sexual histories, family relationships, and workplace interactions are dragged into the courtroom like a huge pile of dirty laundry. Every workplace comment, joke, flirtation, and relationship will be grist for the mill. The ugly soap opera could end relationships and marriages. The media, lawyers, and sexual harassment crusaders will pick over the details of workers’ lives like vultures feeding on a carcass. Some of those involved will profit mightily.

He Said, She Said . . .

Just as in a family quarrel or a divorce, no one will ever agree on what really happened—whether the women involved were damaged, whether they did or didn’t bring the harassment on themselves, or whether they were just trying to win some easy money. Their character and the reputations of witnesses on both sides will be impugned. Careers will be derailed.

In the end the Mitsubishi plant may be prosperous enough to survive this lawsuit. But given the near impossibility of monitoring the sexual speech of over 4,000 workers who may be dating, flirting, breaking up, or fighting, it’s likely they may decide against opening additional assembly plants in the United States. The necessity of extensive monitoring by employers who are trying to protect themselves from sexual harassment lawsuits should raise concerns about the chilling effects on free speech and freedom of association. The silencing of workplace clowns, elimination of social gatherings, and implementation of no-dating policies are the usual outcomes of sexual harassment lawsuits.

If the case goes to trial, it’s a near certainty that the plant’s culture will be destroyed. Employee will be pitted against employee, man against woman, friend against friend, and everyone will blame someone else while the real culprits—the National Organization for Women, the trial lawyers’ lobby, and the Congress of the United States, who were the architects of this incendiary law—will remain self-righteously above the fray.

There are, of course, many more sensible ways to curb sexual harassment, or any other kind of harassment, in the workplace. Counseling and mediation, backed up by escalating fines and firings if the problem remains unresolved, could actually induce more women to report earlier. At present many hold back complaints because the fallout is so draconian. Alternative, common-sense solutions, however, lack the glories and moral victories sought by sexual harassment crusaders and their big-government allies. There would be no lottery-size wins and banner headlines for the crusaders and their lawyers. Resolving a problem through the sensible-shoes approach is not as thrilling as hobbling a multinational corporation.

After the crusaders have marched off to the next glorious battle, Kathleen McLouth and Jane Hieser may be left like soot-covered soldiers on a deserted battlefield without a workplace and without jobs. Defective cars that roll off the Mitsubishi Motors assembly plant are subject to recall under the lemon law. It’s time to repair the sexual harassment lemon law.