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Punch the Clock, Sue the Boss

[Published in the New York Times, March 20, 1998]

Short of appointing Catharine MacKinnon Attorney General, it's hard to know what more Bill Clinton could have done to encourage the current state of harassment law.

He blasted George Bush for questioning the Civil Rights Act of 1991, which turned disputes over sex in the office into big-ticket legal items. As President, Mr. Clinton ignored the concerns of Federal judges when he blithely signed a law forcing men accused of harassment to answer questions about their behavior in instances only distantly related to the complaint at hand. And he has rebuffed litigation reformers who worry that the discovery procedures used in suits before they reach trial encourage lawyers to go on fishing expeditions.

There's a wider paradox, too, behind the current Employment Lawsuit That Ate Washington. You might expect the same politicians and public figures who make a big to-do about reforming private workplaces to be model bosses themselves. But in fact those who specialize in making life rougher for private managers seem to get hit with more than their share of employee complaints.

New York City's Commission on Human Rights, charged with enforcing anti-bias law, was recently found by Federal investigators to have discriminated against two women on its payroll. Last fall a Federal appeals court upheld a $1.5 million jury award against the city's Department for the Aging for -- yes -- age bias.

The list goes on. Which Federal agency has suffered an official outbreak of "sick-building syndrome"? Why, it's the Environmental Protection Agency. Who got sued in January by a staff member alleging pregnancy bias? The same Democratic Congressional Campaign Committee that noisily supported the Family and Medical Leave Act. For its part, the Labor Department settled a bias suit brought by its employees for $5 million, while workplace regulators have been the focus of major sex bias and harassment claims.

The Clinton Justice Department yields to few in its zeal for laws expanding the rights of the disabled. Yet when a Supreme Court vacancy came up, Mr. Clinton was reported to have consulted two doctors to confirm that the future health of a leading prospect looked dicey. He nominated someone else. Had Mr. Clinton been hiring for a private job, he could have been sued and forced to pay damages.

Anti-bias law has lately been stretched to cover obesity-as-disability and speaking with a foreign accent, which made it piquant when the White House's former executive chef testified in a sworn deposition last year that the Clintons had paid him $37,000 to quit his post "because of my accent and the fact that I'm overweight."

The American Bar Association has celebrated Anita Hill and boasts of the role lawyers have played in enforcing the new laws. Yet big firms like Baker & McKenzie have lost a series of notable verdicts and have risked defying age-bias law by ejecting older associates to make way for new faces.

Not all these examples reflect the arrogance of power. Many employee complaints are groundless. Workers whose jobs familiarize them with complaint processes may become unusually litigious. At the same time, given the huge volume of new laws affecting the workplace, it's easy for good managers to slip up. Like so many who have loudly advocated expanding liability for everyone else, President Clinton probably never saw the boomerang coming.