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24 November 2020updated 09 Sep 2021 12:16pm

From the NS archive: The right to no

13 January 1995: New York accountant Enrique Oppenheimer refused to attend his department’s sexual harassment course. He may be a modern hero.

By Nat Hentoff

In 1995, Enrique Oppenheimer, an accountant at New York City’s Department of Housing Preservation and Development, was required by his workplace to attend a course in the prevention of sexual harassment. As a Christian with an extant moral code, Oppenheimer decided that this was not only unnecessary, but that attending such a course would “contaminate” him. Here, Nat Hentoff considers the moral benefit of disobedience.

***

“The ordinary man is passive. Within a narrow circle (home life, and perhaps, the trade unions or local politics) he feels himself master of his fate … but [otherwise] he simply lies down and lets things happen to him.” — George Orwell, Inside the Whale (1940)

There are times when “No!” is the most satisfying and strengthening word in the language.  Several years ago, as it grew dark on lower Fifth Avenue, I saw a young woman stalked by a creep who began to mutter what must have been some particularly disgusting invitations.

She turned around, and in a voice that may have carried well beyond Washington Square, she roared, “No!”. We all looked, but our help wasn’t needed. The creep scuttled away, and she strode on.

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Readers of a certain age may remember C Wright Mills’s saying “No” in the 1950s to any support of nuclear deterrence. And he went further. He urged the rest of us — especially scientists and intellectuals — to refuse to be “good soldiers” for their country:

“If you do not do it, you at least are not responsible for it being done. If you refuse to do so out loud, others may refrain quietly from doing it, and those who still do it may then do it only with hesitation and guilt… To refuse to do it is an act affirming yourself as a moral centre of responsible decisions… It reveals the resolution of one human being to take at least his own fate in to his own hands.”

And A J Muste, the radical pacifist, who became the key strategist of the anti-Vietnam war movement, used to remind his colleagues — and anyone else who wanted to hear — that “this naked human being is the one real thing in the face of the machines and the mechanised institutions of our age”.

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[see also: From the NS archive: The great birth control debate]

Such a resister of the “mechanised institutions of our age” is Enrique Oppenheimer. He is an accountant at New York City’s Department of Housing Preservation and Development. I first heard of his refusal to hand over his conscience to his bosses from Ray Kenison in the New York Post.

Everyone in the department was ordered to attend a sexual harassment prevention training course. These courses are becoming standard at more and more organisations, particularly law firms, which have taken big financial hits on losing sexual harassment cases.

Oppenheimer is a Pentecostal Christian, and he maintained from the beginning that the government had no right to force him to be immersed in a sexual harassment prevention course.

“My religion instructs me as to my moral behaviour code. As a practising Christian, I take from the Bible the mandate from God as to how to behave with my fellow humans.”

The state, he added, was trying to force him to participate in indoctrination, but this kind of training, “I reserve exclusively for private religious life instruction”. 

[see also: From the NS archive: Women’s rights in restaurants]

During my conversation with him, Enrique Oppenheimer made an especially telling point — in his 18 years in government, he had never been accused of sexual harassment or any other untoward behaviour.

In view of that personal history, Oppenheimer emphasised: “If I go to that sexual harassment course, I will be contaminated by it.”

It’s as if a group of federal employees were mandated to take a course in truth in government from Bill Clinton.

The penalties at the Department of Housing Preservation and Development for refusing to take the sexual harassment course are: charges of insubordination, a resultant fine and reprimand, demotion, or termination.

Oppenheimer was not daunted by these prospects. Indeed, he hoped to convince others to commit civil disobedience as acts of conscience. He wanted to “embolden other people” to resist illegitimate authority. That last phrase had considerable currency during the anti-war movement, but it can apply widely, including in private and public workplaces.

The case raises interesting constitutional issues. Since this is a public agency, the First Amendment can come into play. There is a First Amendment protection of beliefs, and therefore of conscience. In this case, Oppenheimer’s belief is religious in nature — and could bring in the free-exercise-of-religion clause of the First Amendment. In the 1972 case, Wisconsin versus Yoder, the Supreme Court affirmed the right of the Amish to refuse — under the free-exercise clause — to put their children in state secondary schools. This was a matter of their conscientious beliefs.

On the other hand the state has a right to show a compelling need that trumps someone’s right to say “No!” — even on the basis of conscience. In Oppenheimer’s case, the City of New York could claim that in view of the extent of sexual harassment in the workplace — and the harm it does — all employees in a public agency must attend these sessions designed to so sensitise them that they will henceforth abjure any such behaviour — out of fear, if not decency.

[see also: From the NS archive: The fight for Jerusalem]

Oppenheimer’s lawyer could argue that if a worker has a record entirely free of the merest traces of sexual harassment at work and outside, the state cannot ignore that record and, in this case, ignore Oppenheimer’s religious beliefs as well.

Meanwhile, ten of Oppenheimer’s co-workers did say they too would not attend the course, but eventually, they wound up as dutiful students. Says Oppenheimer: “They were intimidated into attending.”

Oppenheimer began to go through the disciplinary procedures in the Department of Housing Preservation and Development. He was summoned to a conference and then to another hearing where the department seemed to be willing to make some concessions to this stubborn employee.

Oppenheimer was told that he would be excused from the course if he agreed to having a letter of reprimand placed in his file and if he would read, at his leisure, some material on sexual harassment.

The defendant did not have to ponder the offer. Using the kind of logic with which people of conscience madden their judges, Oppenheimer said: “Why should I be reprimanded when I have done nothing wrong?”

A pre-trial hearing followed. There, the heretic accountant was assured by the head of the tribunal that he was making a big deal out of what really was a minor issue.

Oppenheimer hardly ever lets a euphemism go by. “If this isn’t a big deal. why am I here?” Why, he added, has he had to go through a continuing series of confrontations?

His secular religion being truth and logic, Oppenheimer tried again to make his case: “I didn’t have to wait 18 years for the government to tell me how to behave toward women. I conduct my life according to my religious beliefs. It is not a part-time thing. It is everything in my life. I explained this at every hearing but it did not matter to them.”

There was, of course, yet another hearing. Franz Kafka knew the drill. This time, an administrative law judge was in charge. And he was somewhat embarrassed. He admitted that he, also an employee of the department, had never-no, never-attended the training course on sexual harassment prevention.

The department’s case against Oppenheimer began to unravel. It was disclosed that not only the administrative judge but also a sizable number of other employees had silently escaped, one way or another, the training sessions.

As this was being revealed, Enrique Oppenheimer sat in the hearing room, Bible in hand. Also sitting there were his witnesses-among them his pastor and a woman who had worked with him for years and was ready and willing to testify as to his character.

Robert Lashaw, Oppenheimer’s diligent attorney, takes up the narrative: “After an hour or so of testimony and cross-examination, the lawyer for the department announced that the Department of Housing Preservation and Development did not want to prosecute this person any more.”

How could the department make a conviction stick when others had, with impunity, also not taken this mandatory course?

Still, they had to do something to this heretic. The deal was that he would be free of all penalties if he agreed to receive some written materials on sexual harassment. But — and here is the bureaucratic mind in full spin — Oppenheimer does not have to take any tests on the material. Obviously, then, he doesn’t have to read it. Enrique Oppenheimer accepted the department’s sword of surrender. There is no charge of insubordination on his record. His record is as pure as ever.

In 1952, A J Muste — in an essay, Of Holy Disobedience — spoke of Georges Bernanos, the novelist, who refused to stay in France under the Nazis. One of the Bernanos’ passages quoted by Muste is not without contemporary relevance: “The moment, perhaps, is not far off when it will seem…natural for us to leave the front-door key in the lock at night so the police may enter, at any hour of the day or night…”

(Remember the Bill Clinton-Henry Cisneros proposal last spring that people who live in public housing projects should sign an agreement allowing the police — without a warrant — to enter at any time to seize drugs and perpetrators? Our wholly irrelevant attorney general, Janet Reno, did not object.)

There is another Bernanos warning that I quoted for years at the end of every lecture I gave. It comes from his book, published here in 1952, Tradition of Freedom: “I have thought for a long time now that if, some day, the increasing efficiency of the technique of destruction finally causes our species to disappear from the earth, it will not be cruelty that will be responsible…but the docility, the lack of responsibility in every modern man — his base, subservient acceptance of every common decree.

“The horrors which we have seen, the still greater horrors we shall presently see, are not signs that rebels — insubordinate, untameable men — are increasing in numbers throughout the world, but rather that there is a constant increase, a stupendously rapid increase, in the number of obedient, docile men.”

How many even think about the reports of mass rape in Bosnia? The continuing thuggish repression of dissent in China? The shooting to death of black and Latino children in New York City?

Clucking their tongues are the ever increasing number of obedient, docile men and women.

This article was originally published in “The Village Voice”

Read more from the NS archive here and sign up to the weekly “From the archive” newsletter here. A selection of pieces spanning the New Statesman’s history has recently been published as Statesmanship (Weidenfeld & Nicolson)

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