Fondle a woman; pay $250,000

In the midst of the Monica Lewinsky debacle, there was an important discussion in the White House on where the Clinton administration stood on current sexual harassment laws. "Mr President," an adviser asked, "what is your definition of 'harass'?"

"That's clear," Clinton replied. "We're referring to her rear end, aren't we?"

Right. That's it. That's my obligatory joke on the subject and from now on I'll be serious. As penance I've just ploughed through a working paper from "Contemporary Women's Issues" on Sexual Harassment - Why Men Don't Understand It.

I do now, I do, I swear.

That so many people now feel the need to make such jokes or tiptoe round the subject so delicately shows just what a time bomb sexual harassment cases are becoming here. Executives of US companies now know that it is far from being an inconsequential nuisance hyped up by zealous feminists.

Last year Mitsubishi paid out $34 million to more than 500 female workers who said they had been victims of sexual harassment, and last month Astra Inc paid $10 million to settle a suit involving 120 women complainants. That money was parcelled out according to how a mediator adjudicated on the severity of each individual complaint: an "isolated incident of verbal harassment" by junior management was adjudged to be worth $25,000, while "fondling or requests for sex" by senior management upped the damages to $250,000.

In 1991, the year Judge Clarence Thomas was elected to the Supreme Court despite sexual harassment allegations against him, there were 6,127 sexual harassment complaints to the Equal Employment Opportunity Commission (EEOC); the Thomas case apparently gave women the fillip they needed, and cases jumped to 15,618 last year. Most surprising of all, though, is a detail to be found in an EEOC footnote: of those cases, 12.9 per cent of complaints were filed by men (some alleging abuse by women bosses, some by men).

These statistics do not include countless lawsuits pursued outside the EEOC. For example, in 1997 a jury awarded $27 million (yes, $27 million) to a male employee of the Miller Brewing Company who was wrongfully dismissed because he had been heard making jokes about women's body parts deriving from a nationwide sitcom on television the previous night.

Nor do the figures include the case of a Continental Airlines woman pilot awarded substantial damages because a court agreed that porn pictures left in the cockpit created a "hostile" atmosphere for her - nor that of the Nebraska student ordered to remove a small picture of his bikini-clad wife from his desk because it offended some female students. Nor do the figures take into account a Supreme Court ruling last month that schools can be held legally responsible for the sexual harassment of one pupil by another (in what is known as the "Georgie Porgie case", a six-year-old boy was suspended from school because he tried to kiss a female classmate).

What gives companies and their lawyers the heebie-jeebies is that sexual harassment laws are such a mishmash of legislation that few know where they stand.

No sexual harassment laws as such have ever been passed by Congress - and in so much as there are any they came into being by mistake. In 1964, southern reactionaries tried to sabotage LBJ's historic Civil Rights Act, knowing that it was intended to deal with discrimination only by race, religion and national origin. The ol' boys thought that if they added sexual discrimination to the list it would a) be a good laugh and b) make the act such a joke that it would be killed. The reverse happened - and, even today, the legal basis of sexual harassment cases remains the 1964 Civil Rights Act.

The result is that matters have now coalesced uneasily into two accepted definitions of sexual harassment. The first, known in the business as "quid pro quo", involves cases where promotion or a pay rise, say, are withheld (or employees demoted or sacked) because requested sexual favours are refused. The second comes into the category of "hostile environment" cases - defined as "unwanted conduct of a sexual nature which creates an intimidating, uncomfortable, hostile or offensive environment". Even Patricia Ireland, militant head of the National Organisation for Women, concedes that settling large-scale suits such as the Astra one is "an almost impossible task".

It is in one of those areas, I suspect, where the pendulum may swing wildly before America finally navigates its way successfully through these choppy waters. It is a typically American debate because it pursues a quintessentially American, utopian ideal: the notion of a stress-free workplace. Americans are big on rights, but do they have the right to insist on jobs in which there is no stress?

This, says a government lawyer friend involved in sexual harassment cases, is what it all boils down to. She recounts how she once warned a fellow employee on the phone that he would lose his job if he did not stop his objectionable conduct towards female colleagues. My friend had seen his personnel file and picture, but he did not know what she looked like.

Following his dressing down and humble agreement to mend his ways, the man promptly and coincidentally walked into the lift to find my friend on her own - where he immediately and aggressively propositioned her. "The best way I can define sexual harassment," says that friend, "is to ask a man whether he would want it to happen to his sister/mother/ girlfriend/wife/daughter. If the answer is no, it's sexual harassment."

Andrew Stephen was appointed US Editor of the New Statesman in 2001, having been its Washington correspondent and weekly columnist since 1998. He is a regular contributor to BBC news programs and to The Sunday Times Magazine. He has also written for a variety of US newspapers including The New York Times Op-Ed pages. He came to the US in 1989 to be Washington Bureau Chief of The Observer and in 1992 was made Foreign Correspondent of the Year by the American Overseas Press Club for his coverage.

This article first appeared in the 14 June 1999 issue of the New Statesman, Kosovo: a rich and comfortable war