The new burden of proof

Bill O'Reilly was sued for sexual harassment. Unless you've been living under a rock the last few weeks, you probably already knew that. The case has ultimately been settled, but the discussion of sexual misconduct that it created still remains. Regardless of what you think of O'Reilly or the politics of Fox News, everyone should be disturbed by the fact that someone was trying to extort $60 million largely for phone conversations they could have hung up on.\nThe O'Reilly case was merely the latest in a disappointing trend where anyone can make accusations at any time for any reason. In the beginning, sexual harassment revolved around quid pro quo situations (sleep with me or you're fired). Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex or national origin. This situation made sense and very few disagreed with it. However, in 1986 that all changed.\nIt was in 1986 that the case of Meritor Savings Bank v. Vinson established the idea of a "hostile environment." This made sense enough. However, the problem with this case is that it increased an employer's liability and decreased the complainant's burden of proof. This downward spiral would continue during the next few years.\nIn 1991, the nomination of Clarence Thomas to the Supreme Court again encouraged an atmosphere of accusation without proof. Also in that year, the cases of Ellison v. Brady and Robinson v. Jacksonville Shipyards further lowered the burden of proof for sexual harassment cases. Ellison v. Brady introduced the idea of the "reasonable woman standard" into law. This was bad because it meant that cases would now be viewed almost solely on the complainant's view and not the defendant's. Robinson v. Jacksonville Shipyards held that nude pinups in a locker constituted sexual harassment. Water-cooler conversation and jokes were now the realm of the court. Professor Ellen Frankel Paul of Bowling Green State University put it best in her paper titled "Bared Buttocks and Federal Cases." Sexual harassment had shifted from "objectively injurious" to "merely subjectively offensive."\nIn this day and age, anyone can be offended by anything at any time. The problem with applying the subjectively offensive standard to sexual harassment is the damage it can cause. Jobs can be lost, marriages can be destroyed, and reputations can be dragged through the dirt simply because of someone's vindictive allegation. Perhaps even more dangerous is the fact that frivolous suits and allegations make it less likely the next person will be believed, whether there has been genuine malfeasance or not.\nSexual harassment has also been used as a political tool. In the political correctness fostered by these court decisions, accusations of sexual misconduct have been used for political ends. From the cases of Tawana Brawley and Anita Hill to the O'Reilly case, there have been a few well publicized cases of women with a certain agenda using sexual misconduct allegations to get what they want. Whether it is trying to keep a qualified judge off the Supreme Court or end the career of a political commentator, sexual misconduct is way too important of an issue to be used for such frivolous ends.\nThankfully, sanity is coming back into the courtroom. In Pennsylvania State Police v. Suders, the Supreme Court ruled that it is a valid defense for employers to demonstrate that a complainant failed to use whatever reasonable system existed to report and resolve sexual misconduct issues. This is a great first step, but it needs to be taken further. The politically correct environment where those who make accusations are automatically believed needs to be replaced with the idea that sexual misconduct cases started out as a matter of fairness.