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Meantime, employers fearing lawsuits are stopping harassment before it starts. Some, like General Motors and Wal-Mart, have instituted zero-tolerance policies banning just about any speech or conduct with sexual undertones, like sending E-mail with a naughty Web address to a co-worker, which not so long ago would have been deemed not just harmless but constitutionally protected. While it's rare for nonthreatening behavior to be ruled harassment, it happens. In 1993 the University of Nebraska forced a grad student to remove from his desk a picture of his bikini-clad wife after two fellow students complained that the photo violated the school's sexual-harassment policy.
The legal principle of harassment hinges on impossibly squishy terms like "unwelcome" and "pervasive," words that a thousand lawyers can define in a thousand ways. As a consequence, some despicable harassers get off easy, just as some men (and, increasingly, women) with innocent intentions can have their lives ruined. That's because intent seldom defines harassment; reception and perception do.
The confusion and excessive rulemaking may already be sowing the seeds of backlash. In a recent TIME/CNN poll, just 26% of those surveyed called sexual harassment of women "a big problem," down from 37% in 1991. What's more, 57% of men--and 52% of women--agree that "we have gone too far in making common interactions between employees into cases of sexual harassment."
In short, many think the solution has become as bad as the problem. "In 1964 [when discrimination based on gender first became illegal]," says UCLA harassment-law expert Eugene Volokh, "if you told a member of Congress, 'If you vote to bar discrimination based on sex, you will prohibit employees from putting pictures of their wives in bikinis on their desks,' most legislators would have said, 'Wait a minute, where does it say that?'"
What exactly is the law on sexual harassment, and how did it evolve into such a beast? Legally speaking, there are two kinds of sexual harassment, and Jones--to take a not so random example--charges both. The first is called "quid pro quo" harassment, and it's the easier to grasp. If your boss docks your pay or fires you or otherwise punishes you for rebuffing an advance, he's flat-out guilty. Jones, for instance, says her supervisors at the little state office where she was a clerk mistreated her after she rejected Governor Clinton's alleged advance. Her co-workers got bigger raises, she says, and her job became a "dead end." Clinton has denied that he propositioned her (and indeed has denied that he ever sexually harassed any woman). Further, Clinton's lawyers say there was never any "quid" for Jones' refusal to "quo"--that she received a promotion and pay hikes as the others did.
A generation ago, Jones would have had no case. Not even blatant quid pro quo harassment was illegal; many judges simply deemed such matters "personal." When they were allowed to bring lawsuits, plaintiffs--nearly all women at the time, and still nearly 90% women today--had no right to jury trials, leaving their fate up to a mostly male stable of judges.