Dodging the Bisexual Boss: Fundamental Rights in the Workplace and Beyond Merriam H. Neudel Tlae Hazards oft/9e oclel he rationale used by the courts for handling sex- ual harassment cases makes dangerously clear the theoretical shortcomings of all of our legal reasoning in equal employment cases, and, ultimately, in civil rights cases generally. Sexual harassment in the workplace, the courts tell us, is illegal only because it is an instance of discrimination. The most common in- stances, of course, lend themselves readily to this anal- ysis. Male boss demands sexual favors from female employee. ?Put out or get out,? he tells her. If she were male, she would be able to keep her job without having to submit to the boss?s sexual demands. Therefore, she is the victim of discrimination by reason of sex, and Ti- tle VII of the Civil Rights Act provides a remedy for her. This reasoning has been extended to cases involving: male employees who have been found to be the victims of discrimination because, unlike their female colleagues, they cannot earn extra points with the boss in the bedroom; (2) male employees who have been subjected to sex- ual demands from female bosses; and (3) male employees who have been subjected to sex- ual demands from homosexual male bosses. Presumably in these two latter situations, a female em- ployee who could not earn extra points with her boss in the bedroom would also have a cause of action, though I know of no such case in the courts at present. In each of these cases, discrimination has been found because the boss in question was making sexual de- mands of only one gender, thereby discriminating against the employee in question either for being of that gender or (occasionally) for being of the other gender. Not, in any case, because there is anything z?r-zlaerearly il~ legal in sexual demands made by a boss, as such, of an employee, as such. What is illegal is not the employer?s abuse ofhis or her power, but the discrimination against one sex which is ordinarily built into that situation. Unfortunately, it is probably only a matter of time ill/fertile . is a practicing lawyer in Chicago and am {instructor at Roosevelt University. K.) before the courts are confronted with a bisexual boss who can raise the utterly valid defense, when charged with sexual harassment of Ms. Jones: ?Who?s discrimi- nating? Sure, I put the make on Ms. Jones last week. The week before that, Iwas chasing Mr. Smith around his desk. And the courts will be forced to confess that the law provides no remedy for Ms. Jones or Mr. Smith against an equal opportunity exploiter. The shortcomings of the current ?j?imclemeraz?al rig/arr? model Our entire system of civil rights legislation rests on the notion that individual human beings can be protected from abuse by powerful entities and individuals only by virtue of a small number of fundamental rights, most of which can be asserted only against governmental enti- ties?the right to vote, to travel, to associate and Speak freely, to practice their religion, and not to be deprived of life, liberty, or preperty without due process of law. Against private entities?landlords, merchants, and, most crucially, employers??what the ordinary citizen mostly has are the right to be free from the depredations forbidden by the criminal code (murder, robbery, bat- tery, rape, and so on) and the right not to be treated any worse than anybody else, if and only if that diSparate treatment results from belonging to a ?suspect classifi- cation?~race, religion, nationality, alienage, sex, age, or handicap. This approach, which will be explored here in the arena of workers? rights, has problems wherever ap- plied. If ?civil rights? mostly means the right of mem- bers of Group A not to be discriminated against in favor of Group B, this leaves it to the would-be discriminators to set the bottom line, the worst treatment to be meted out?evenhandedly, of course??to all victims. And, even more disastrously from the point of view of the polity, it sets Group A against Group B?when, in all likelihood, neither of them is doing very well?at the expense of both and to the profit of the discriminators. Neither Group A nor Group can protect itself or assert its rights except by an unedifying contest in whining: ?I?ve been treated worse than you.? ?No you haven?t. Our limited view of fundamental human rights means that most of the ?fundamental rights? of the citizen which are constitutionally protected against govern- mental encroachment can still be infringed upon with impunity by a rams-governmental employer or landlord. An employee can be fired, a tenant evicted (in the ab- sence of a written contract or lease), for having the ?wrong? campaign bumper sticker on his or her car, or for discussing the merits of a particular candidate or cause with other tenants or employees, on or off the premises. In the absence of specific state statutes re- quiring employers to give employees time off to vote or do jury duty, an employee can be fired in most states for fulfilling either of these civic duties. S/he will almost cer- tainly be able to collect unemployment compensation afterwards, but that is small comfort, and it looks no better on a resume. The status of an employee?s right not to be required to work on his or her religiously man- dated day of rest is still being contested in the courts, but prOSpects for it look dim. The courts lately have tended to hold that there is a difference between being fired for being a Seventh-Day Adventist, which would be a violation of the Civil Rights Act, and being fired for refusing to work on Saturday, which is generally held not to be a violation. All the constitution can offer is the right to collect unemployment benefits after being fired. When 2'5 720: dzsazmz'natzbn? The ?nondiscrimination? model means that discrim? inating against an employee for any reason other than be- ing in a ?suspect classification? does not violate the Civil Rights Act. For instance, absent specific state legislation, an employer can refuse to hire the following people: (I) Anybody whose last name begins with the letter (although Sikhs, who almost always use I?Singh? for their last name, might have a cause of action); (2) Redheads (except where redheads are statistically likely to be members of a particular racial or national group); (3) Men who wear earrings; (4) Women who wear earrings; (5) Women who don?t wear earrings; (6) Peeple with children (provided men and women are equally affected)?or peOple without children, sub- ject to the same proviso; (7) People who live with their aged parents; (8) Anybody who isn?t related to someone in upper management. And so on. And finally, it means that an employer who mistreats his or her employees more or less evenhandedly, at least as pertains to ?suSpect classifications, and refrains from violations of union or written contracts or basic criminal laws, can do virtually anything else to the em- p10yee. There is not even a legal term for abuses com- mitted against employees by employers, which do not violate the National Labor Relations Act or criminal or civil rights statutes. Some of the most popular of these practices are these: (1) Firing an employee who has just had a work-re- lated accident, for fear that he or she might file a Worker?s Compensation claim (there are now legal pro- tections against being fired after filing a claim); (2) Firing an employee who takes off ?too much? time for a validly documented illness?even if the amount of time involved is within the employer?s previously set limits for paid sick leave (this issue is currently under litigation); (3) Refusing to hire a worker who has a handicapped family member, for fear of the effect on health coverage rates (this may actually be illegal, at least under several state statutes, and possibly under federal law; it is not clear whether firing a worker when a member of his or her fam- ily becomes handicapped has the same legal status); (4) Firing a competent, qualified employee to create a position for an incompetent, unqualified relative of the boss; (5) Firing a worker just before he or she becomes el- igible for benefits or union membership, or just before pension vesting; (6) Requiring all workers to contribute to an employee benefit fund and firing all but a favored few before they become eligible to collect from it; (7) Providing no benefits, and a vastly lower hourly wage, for part-time workers as opposed to full-time workers, even though typically part-time workers are ac- tually more productive per hour worked; (8) Requiring employees to work seven days a week or on double shifts, for months at a time, and firing any- one who refuses to do so?this is perfectly legal as long as overtime is paid; (9) Surveilling the most personal activities of employ- ees including bathroom breaks, personal conversations in or out of the workplace, and employees' political activity. On the pOpular, political level, Americans live with this situation either by denying it?it is amazing how many nonexistent rights most people thin/(s they have against their employers?or by accepting it as an un- avoidable cost of the free enterprise system. The more sophisticated may be cynically aware that employment and fair treatment on the job have been officially con- sidered ?fundamental rights,? and legally protected as such, in many Eastern bloc countries where the work- ers have been, at best, no better off than the average blue-collar American, and often a good deal worse off. But they are likely to be utterly unaware that workers have higher wages, better benefits, and better protection against workplace abuses in such thriving capitalist ec0nomies as Germany, Scandinavia, and even Japan, than in this land of the free. BISEXUAL Boss 23 .. A?x: Jr" v? Legislators over the past ten years or so have been cynically dodging demands for legislation that would protect all workers from the kinds of abuses outlined above, by saying, ?That?s what unions are for. Put it in your collective bargaining agreements. At the same time, not altogether coincidentally, corporations are car- rying out the best-financed, most highly organized, and mosr successful union-busting and decertification cam- paigns in thirty years. Union membership in the private sector is at its lowest ebb in forty years, protecting fewer than 15 percent of all private-sector workers. Expanding nglats in tlie worlepktce In short, both union contracts and the discrimination rationale to be found in the Civil Rights Acts and the Supreme Court?s interpretation of them, though obvi- ously better than nothing, are poor substitutes for a leg- islated system of fundamental rights for all workers. Such a system has to go beyond the rights now consid- ered fundamental by the Court, to the bread-and-but- ter rights real workers need in their clay-EO-clay lives. Most of tlae ?fana?antental rig/its? of tlae citizen which are constitution- ally protected against governmental encroaclnnent can still be infringed with impunity by a nongovernmental employer or lancllorcl. The two best-publicized drives for specific worker- rights legislation are those for parental leave, and for pay equity. There is a surprising amount of grass roots sup- port for both. But there is also a wideSpread tendency, among both supporters and Opponents, to see both pro- posals (but eSpecially pay equity) as ?women?s issues. This has at least some potential for weakening their sup port, since women, in today?s political lexicon, are a ?Special interest group. Somewhat less visible are the state and local cam- paigns demanding that plant closings be subjected to various restrictions and penalties, for the benefit of borh individual workers and areas economically dependent on the plants in attestion. Every now an then somebody proposes a law for- bidding (or, more often, limiting) compulsory overtime. Major employers in the area respond with a barrage of complaints and the usual blackmail, to the effect that 24 TIKKUN VOL. 7, No. 6 any alternative to unlimited compulsory overtime would be prohibitively expensive and would result in plant closings. As a result, these bills rarely get into (much less out of) the appropriate legislative committee. One of the few bright spots in this picture is that the courts are increasingly holding employers civilly liable to ex-employees for ?wrongful discharge? for various in- fringements of individual rights or public policy in the workplace, under numerous nonrtatzttory tort theories (?public policy? is legalese for ?there?s no statute or reg- ulation requiring this?it?s just the way we do things. This is very good news for a rather severely limited cat- egory of workers: the worker who has actually been discharged, rather than merely harassed; or who has been harassed to the point where a court can find that no reasonable person could possibly work under those conditions (?constructive discharge"); and who can find legal counsel willing to handle such a case without a substantial retainer to cover the heavy ex- penses such cases normally entail. Aside from that, the increase in tort suits for wrong- ful discharge is useful to working people in general mainly in the small but discernable effect it is now be- ginning to have on the way employers present their ac- tions. It has added one line of type to every empIOyee manual??THIS IS NOT A CON it has raised the level of managerial hypocrisy. (This is by no means a negligible benefit. It prevents the most blatantly visible outrages and encourages a degree of managerial caution about the more covert abuses.) Most working peeple at all levels and despite frequent denials, are acutely aware that ?the Constitution stops at the door of the workplace,? and that most American adults Spend fifty hours a week, fifty weeks a year, fifty years out of their lifetimes working in what at times ap- pears to be a banana republic?like enclave. But responses to this situation have been piecemeal and fragmented. No one yet has prOposed a compre? laenrive code of worker rights, at either the federal or the state level, to include the following: pay equity, 0 equal rights for part-time workers, 0 parental and disability leave, mandatory health insurance, 0 accountability to workers and communities for plant closings, limits on mandatory overtime, and codification of the various wrongful discharge the- ories now used by civil courts. Organized labor, many salaried professional groups, the women?s m0vement, civil rights groups, and communities currently or potentially affected by plant (Continued on p. 7 9) RIGHTS IN THE WORKPLACE (Continued?'om p. 24) closings could unite around a comprehensive ?worker?s rights? proposal. As a long-range program, it could give unity and structure to current organizing efforts around various components of the package. And this package ought properly to be the first of many aimed at broad- ening the fundamental rights of Americans vis-a-vis the private sector, in commerce, education, communica- tions, housing, and so on. The framers of the Constitu- tion, even at their most timebound, had a broader vision ofthe Rights of Man [sic] than the mere Opportunity to be equally exploited. Beyorzdfumdamerzz?af 7ng115 But that fundamental rights model in turn falls short of a covenantal relationship between employer and em- ployee which recognizes workers as whole human beings, on and off the job. It is time to go beyond a ?worker?s rights? theory to look at on-the-job life as an integral part of the whole life of every working person. The radical in- equality between the worker who (like most of us) defines her? or himself largely in terms of what s/he ?does,? and the emplOyer who sees her/him as a unit of non-fixed la- bor cost, poisons the worker?s whole life, and, ultimately, the family and community s/he lives in. Employers must be held accountable for how they handle the tremendous and social power that this relationship gives them. The ?rights model? limits the powerful in very spe- cific ways. But it also assumes that everybody will use all the power they have and are not specifically barred from using. From the worker?s point of view, having a set of Specified fundamental rights as an employee is certainly better than merely being equally exploited; but it is still a starting point on the way to being able to function in the workplace as a whole, respected human being. A new administration will be in a unique position to implement this vision~?in the shorter term, a compre- hensive code of fundamental rights in the workplace, and, in the long term, a revision of relationships between worker and management. The presidency's potential as a pulpit has already been commented on far beyond my poor power to add or detract. The emphasis of Clinton?s campaign on increasing the numbers of good jobs while simultaneously improving the skills and aptitude of work- ers, dovetails with our vision of empowered, respected work-life. That vision has the marks of American leg~ islative style at its best?simultaneously a near~transcen~ dent set of goals, and a concrete program of laws and regulations. It is consistent with the demands of many unions, but it goes far beyond them?far enough to ward off the usual accusations against a Democratic adminis- tration of being a ?captive of special interest groups. A case can be made that labor unions, representing less than 20 percent of the work force, comprise a special interest group. But working Americans as a whole (plus would- be workers) constitute nearly three-quarters of the pop- ulation. To empower them/ us is to shape the entire polity into a free and mutually responsible community. [3 SHARING STORIES (Continued from p. 40) Rabbi Meir said: They told a parable about this. It?s like twin brothers who lived in a town. One was made king and one became a robber. The king commanded that he be hanged. Everyone who saw him said: ?That?s the king hanging. So the king ordered that he be taken down. The image of God hangs on the gallows, says the Tal- mudAuschwitz, certainly the divine image within humanity was executed. From old tales a storyteller makes new ones; with old Stories a listener can better hear the new. With a rich store of stories, a person can read his or her own life as a grander tale. Or to choose another parable: In The Thousand high: and One Night, in the Tale of Ala al- Din (or Aladdin), the magician proclaims: ?New lamps! New lamps for old!? People think him a fool, but by this trick he trades a mere piece of copper for the magic lamp that is home to Ala al-Din?s generous genie. Old tales, like old lamps, have great power. I would submit, though, that those of us who grew up in America in the last generation or two use newer but less magical tales as models for our lives. Our sto- ries are likely to come from Leave to Beaver and Alka- Seltzer commercials, not ShakeSpeare, the Bible, Shahrazad's tangle of tales, or rabbinic legend. That makes it easier to read our own lives as sitcom or soap opera, with their meager meaning, than to see ourselves as King Lear, or Shahrazad, or Israelites leaving Egypt. Is this an argument for a ?Great Books? curriculum? Not in the restricted sense that the term is often used, in which ?great? means only books in that chain of tradi- tion that leads from Homer through Shakespeare. West- ern Civ. 101 is only one of the jugs of gold in the storeroom of stories, and I?m greedy. I recommend such greed. I also want fistfuls of legends from the Talmud and Bereshit Rabba?Rabbi Akiba entering paradise, and Alexander the Great traveling beyond the mountains of darkness. But I?m not satisfied with that jug alone, either. Let?s grab fistfuls of stories, let?s shower them on our chil- dren and our students. Let?s bathe in a sea of stories. Cl VOL. 7, No. 6 79