Shut Up, They Explained
The speech police discover "zero tolerance."
By Walter Olson
Reason, June 1997
"I know one thing," said Maureen Dowd when she joined the Washington bureau of The New York Times. "I'm not going to be covering any of those dreary regulatory agencies." Too bad. We already have more than we need of political coverage that chronicles the doings of high officialdom while glossing over the details of how government actually works its day-to-day will on the citizenry. It's as if pundits were forever recording every change in restaurants' ownership and management without ever sampling the food.
The very dreary Equal Employment Opportunity Commission typifies the sort of agency that would come under constant press scrutiny in a more sensible world. How much power does the EEOC wield? Well, as Washington's chief interpreter of harassment law, it gets to put out guidelines on when tasteless or insensitive banter, e-mail, or photocopier humor at everyone's workplace reaches the unlawful point of imposing a "hostile environment" on co-workers. Put differently, it gets to strut about as a sort of Flirtation Monitor and Joke Cop.
Hostile-environment law has posed a running affront to free speech principles ever since Professor Catharine MacKinnon, the Savonarola of Ann Arbor, helped dream it up. Now we seem to be entering a new phase, summed up by a catchy slogan: "zero tolerance" of harassment and of discrimination more generally. It's all the rage: The Department of Veterans' Affairs and the Department of Agriculture have recently proclaimed zero tolerance policies; so have big businesses galore, such as New England's Fleet Bank, along with the Boston "T" transit system and various bureaus of the Los Angeles city government. Legal pressure inevitably plays a key role: Giant printer R.R. Donnelley pledged zero tolerance after it got sued for allegedly allowing racist expressions in internal e-mail, while former Labor Secretary Lynn Martin recommended a zero tolerance policy in a report for lawsuit- besieged Mitsubishi Corp. An official with the federal Civil Rights Commission complained that while St. Petersburg, Florida, had adopted a zero tolerance policy for its police department, it had not enforced that policy as avidly as had neighboring Tampa.
When it comes to harassment and discrimination, in short, everyone's in favor of zero tolerance--whatever that turns out to mean. But what does it mean?
To get a better idea, consider the case of zero tolerance policies on other subjects, such as contraband at public schools. Zero tolerance weapons codes meant that Louisiana second- grader Kameryn Lueng was sent to a disciplinary school for bringing to show-and-tell her grandfather's watch fob, which "has a small blade used for cleaning fingernails." Schools have likewise expelled an Indianapolis honor student who had in her possession a Swiss Army knife, an Atlanta fourth-grader whose uncle gave him a pocket blade that he used to carve initials in trees, and a girl whose little brother dropped a knife in her bag after using it to cut Play-Doh. In case after case, the zero tolerance slogan steeled officials to set aside any impulses of mercy and resolve doubts in favor of firmer suppression, more severe penalties, and less back talk from the accused.
Zero tolerance school drug policies have worked the same way: Midol and Advil tablets can't get you high, but drugs are drugs. Are violations minor, debatable, borderline, unwitting? Who cares? In March school officials in Bremerton, Washington, suspended 15 middle school students for passing around and tasting Alka-Seltzer tablets on school property. The three-week penalty could be cut to three days, said school officials, if the kids agreed to enter "drug-awareness classes and counseling."
Much of hostile-environment law is in practice a law of contraband, in which Goya prints on the walls, New Yorker cartoons posted in cubicles, and copies of Playboy in the firehouse have all been treated as guilty-objects-in-themselves with no need to show malign intent. Draft EEOC guidelines have banned "circulation" of offending materials anywhere on an employer's premises, which includes the inside of workers' closed desks and lockers. And even more central to hostile-environment law is the suppression of what the EEOC has delicately labeled "verbal conduct"--or, to call it by its more customary name, speech. And here we come to the nub of the problem. The real message of zero tolerance harassment policies is that henceforth there's to be no benefit of the doubt given to debatable or borderline speech.
Zero is the theme number of absolutism, and of course absolutism does have its role to play on questions of speech: The forgotten First Amendment provides that Congress shall make "no" law abridging the freedom of that activity, which is pretty zero-ey. But who'd have dreamed that the tables would have turned to the point where it's the opponents of free discourse who now boast of following absolutist policies, while the few remaining supporters dither about the need for balancing of competing goods?
At the Defense Department, yet another outpost of loudly proclaimed zero tolerance, the dramatic announcement by five Army women that they'd been arm-twisted into agreeing to make false charges of sexual abuse seems to have done very little to break the momentum of Crucible-esque accusation. Nor did anyone pay much heed in January when Adelyn Lee, a former girlfriend of Oracle Corp. CEO Lawrence Ellison, was convicted by a California jury of two counts of perjury and two counts of falsifying evidence in her sexual harassment and wrongful-firing case against the company. The jury found she'd used a supervisor's password to forge a crucial piece of e-mail backing her claim; cellular phone records showed he'd been driving at the time he supposedly sent the message.
Is a pattern developing here? Federal Judge Kenneth Ryskamp angrily threw out, as a "fraud on the court," the harassment suit filed by housemaid Maria Vargas against merger mogul Nelson Peltz. Vargas came up with her prize exhibit late in the case, when she produced a pair of panties she said Peltz had asked her to model in; her lawyer, G. Ware Cornell of West Palm Beach, waved the panties in front of TV cameras and called them a "smoking gun." "When it's 'he said, she said,' " Cornell crowed, " 'she said' wins. You can take that to the bank." But Peltz's investigators managed to show that the panties, made in Hong Kong, had not even been sold in the United States until nine months after the supposed incident. It turned out the 100-percent-polyester-lined garments are sold only through Target discount stores, three pairs for $7.77--not exactly prime shopping turf for Peltz, whose wealth was estimated in a 1993 Forbes survey at $460 million. Vargas was identified in an affidavit as a regular shopper at a Target near her house.
False accusations aside, I don't think I'd care to be the kind of person who shows zero tolerance for affronts in conversation or manners--tightly wound, we used to call it. Yet we're well on the way to enshrining that kind of touchiness as national policy. In engineering parlance, if I have it right, the opposite of zero tolerance specs are specs that allow for play in the joints, that are "forgiving." What an odd, ungovernmental word.
As zero tolerance becomes the new norm, the City Council of Cleveland has just done its own pioneering bit for the cause: It has seen fit to pass an ordinance criminalizing job bias. The new statute, which went into effect last December, makes it a misdemeanor punishable by a minimum penalty of $1,000 or three months in jail to fire, demote, or refuse to hire anyone based on "race, religion, color, sex, sexual orientation, national origin, age, disability, ethnic group or Vietnam-era or disabled veteran status."
As a legal matter, harassment is considered a form of discrimination, which means that in Cleveland from now on those off-color cartoons and ethnic jokes are going to be possible grist for the prosecutor, and plaintiff's lawyers will be using threats of referral to the district attorney as a club in settlement demands. Quite aside from issues of harassment, of course, discrimination law consists in large part of a morass of gray areas and judgment calls where forbidden conduct shades into permitted, so that employers must guess as to whether or not their decisions today will someday be adjudged lawful or not. Now, in Cleveland, they get to wager their managers' personal liberty as well as their bank accounts. The EEOC says you may be discriminating if you turn away job applicants with hard-to-understand accents or criminal records--"disparate impact" against minorities, you know. Employers have in the past lost civil cases in which they've declined to hire former convicts. Now, if they are so unwise as to have located their operations in Cleveland, they are the ones who may go to jail.
REASON's editors have been kind enough to invite me to write a monthly column, of which this is the first number. Regulatory outrages won't be the only topic, but I know one thing: I'm not going to be covering any of those dreary presidential elections.
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