Wednesday, October 27, 2004


Comment: Will write more later. I think this article is of dubious value.


The conjoined lawsuits of Bill O’Reilly and Andrea Mackris contain everything future generations might want to know about what made this era so hopeless and rotten. Everything that made a farce of women’s struggle for equality in the workplace, causing outbreaks of violence against lawyers on the streets of major cities and eventually enabling the Taliban to become the third major party to come close to winning a U.S. election.
Their teachers will tell them it was lawsuits like this. Situations like this. It was the slow humiliation of a once-great nation having to constantly talk and think about fake crises and lurid garbage at a time when we needed our minds to be clear, at a time when we were facing true catastrophe. Most sexual harassment lawsuits are specious, driven by greed and rooted in their own brand of misogyny, the kind that infantilizes women, by sexualizing them and by commodifying their sexual distress. The only true liberation for women lies in their being freed from all angles of sexual determinism.
If we can't stop lechery, we can at least stop building a church upon it, stop measuring and quantifying and collecting it. Because to do so is only to be complicit with the very formula for regression that it implies, that we are inseparable from our sex value to a man, be it positive or negative.
The trouble here, as everywhere, is that we have lost all sense of proportion, justice and, most importantly, standards. Lechery is a drag—but it is not a crime. If the lechery makes it difficult to work, then report it. There isn't a corporate workplace in America that doesn't have an effective anti-sex-harassment policy in place that will instantly put the fear of all hell in any man who forgets the rules.
Bill O'Reilly is what he is, love him or hate him. But a $60 million sexual harassment lawsuit really ought to have some sexual harassment in it.
Instead, we have some very "inappropriate" whiskey-talk, or "boorishness" that can't quite attach itself to the larger conspiracy that is so hotly implied by its peddlers.
Nobody wants to deal with this on the human plane, like the fairly pedestrian matter it actually is. In America we don't think about things as emanating from the human realm, but rather from the unfathomable, alien realm, where only $60 million might set things straight again. "America is a pathetic place where something stupefying must always happen for fear we wake up," wrote William Carlos Williams. There must always be a fresh bogeyman in the unending flogging for purity, and everything must always be driven by fear and ugliness.
Liberals and conservatives have exploited this with equal relish over time, and lost most if not all of their credibility to address sexual harassment with a straight face. Still, the same hypocritical racket rises up each time, the same hand-wringing about sexual propriety, lust, power and judgment.
As of press time, the two sides appear to be negotiating a settlement.
What a bore.
I've read all the documents on both sides, and clearly O'Reilly has a strong case for extortion and could have used this moment to actually set some standards in this country. Everybody agrees it's one of the weakest sex-harass suits ever to come down the pike; for one thing, because it contains no touching, no quid pro quo sexual harassment (i.e., threats) and not a single complaint from Mackris prior to the big shakedown.
Tidbits emerge that aren't exactly confidence-inspiring: Andrea Mackris went to dinner repeatedly with Bill O'Reilly. She even went to his hotel room (where nothing happened). She herself is sexually outspoken, and maybe even exhibitionistic. She was divisive and capricious in the workplace, melodramatic, and deep in debt. She is rumored both to have had a crush on Bill O'Reilly and to have openly vowed to take him down. She returned to work for him after a few months at CNN, and he gave her a big raise. She never complained to anybody at Fox about the harassment, and even wrote an email to a friend gushing about how happy she was to be back at Fox, which she called "home."
Still, earnest liberals will ask of you that you entertain this as a serious case of sexual harassment.
I have been decrying the tyranny of sexual- harassment law for a decade, since I experienced one of these lawsuits first-hand in a lengthy federal court trial aimed against my then-employer. These things are carnivals of shame, fear, sadism and pedantry, and yet they have remained cloaked in a patina of pseudo-feminism and progressiveness. Far from liberating women, the terror reign has the potential to send women back to the stone age and ensure eternal warfare between the sexes.
When I offer up this point of view, those around me always get that fear in their eyes, as if I'm asking them to follow me underground to worship Satan. "But…but…don't you think sexual harassment is a real…problem…for women in the workforce?" they ask nervously.
Maybe. But I'm far more worried about the dictatorship that has grown up around these lucrative laws, the kangaroo courts and the mob-style whackings. The way people have been disappearing from their offices, around the country for years because they said something weird or inappropriate and their firms or universities didn't want any trouble. Can we talk about that?
If the Patriot Act worries you, this stuff ought to make your blood run cold.
THE LAW NEEDS to be amended to correct the rampant abuses, and the only way that will happen is if people don't settle. If, instead, they fight, we might see better standards enforced.
Sexual Harassment law, a part of the Title VII Civil Rights Act, is an open-ended set of loosely connected and ill-defined laws that "prohibits sex discrimination and sexual harassment in the workplace." Examples of sexual harassment include: "Unwelcome sexual advances, requests for sexual favors, verbal or physical conduct of a sexual nature, and sexually suggestive or offensive personal references about an individual."
Then there is a laundry list of conditions that broaden the scope for the "victim," who does not even have to face the accused harasser once she's made the charges. The victim may be male or female, need not be of the opposite sex, need not have been economically injured or discharged, and does not even have to be the person harassed. It can be "anyone affected by the offensive conduct." The harasser in turn need not be the victim's supervisor, but can be a coworker, or even a non-employee.
Show me the behavioral psychologist who can delineate what "verbal or physical conduct of a sexual nature" may entail. It could be just about anything; people tend to weave sexual references into their patter and banter in a free society.
Add to those nebulous laws a mass influx of women into the workplace, bringing the dynamics of the home with them—father/daughter, mother/daughter—etc. Now add to that a hot market, a financial incentive for grievance. Millions of dollars start to change hands due to increasingly opaque charges and situations in which women were "made to feel uncomfortable."
And there you have a disaster in the making. Fear drives the prices up. The settlements are reached behind closed doors. Nobody fights it. Nobody dares question the substance or integrity of the "victim" because this may signal ideological impurity and may render that person vulnerable to attack.
If there were a way to measure the damage caused by sexual harassment in the souls and careers of the afflicted women next to the damage caused by the litigious and often extortionist machinery that cracks down on it, I am certain we would see that the cure is worse than the disease.
This is what makes the Bill O'Reilly case interesting, and pivotal.
TAKING KNEE-JERK exception to the idea that Bill O'Reilly may have been wronged, and fending off the bogeyman of their own sexuality, the legal pundits are busy redefining the word "extortion" for the American masses.
But lawyers are the worst people in the world at figuring out right from wrong. They only like to talk about what the law says, not what common sense says. If you want to know what's right and what's wrong, ask a child. What is betrayal? What is entrapment?
The legal punditry is arguing that what went down in the O'Reilly case is "common practice" in sexual harassment lawsuits: The aggrieved party goes knocking on a back door with cracked knuckles, seeking a "resolution" before a suit is filed. In this case, the aggrieved asked for anywhere between $60 million and $600 million.
Yes, it's "common practice." All that proves is that sexual harassment suits filed against high-profile, wealthy men (who coincidentally seem to commit all the sexual harassment you ever hear about) are generally preceded by extortion. No matter how much you may dislike Bill O'Reilly, surely you would agree that $60 million is too high a price to listen to him talk about vibrators. And this brings us to the next station of incoherent hypocrisy.
Only women are permitted to talk about vibrators in this country, and they can do it on prime-time tv. It's a sign of liberation.
If you find all of this a little confusing, you are not alone. The legal eagles are struggling mightily to make sense of it all, to keep the nation's soul dry-cleaned and germ-free. But O'Reilly complicated matters by getting mad as a bull. Clinton failed to get mad when he ought to have gone berserk. He should have said: "I am not going to let you people examine my genitals. Rewrite the Constitution if you have to. It's not going to happen."
I was hoping Bill O'Reilly would resist a settlement deal, and instead tell the American public what he means when he says this is the "most evil" thing he's ever seen. If that is indeed the case, then Thoreau would have wanted him to fight it—risk his career, risk everything and use "the whole of his influence."
O'Reilly is far from a clean-spun hero, and he is not even saying that he is "innocent" of the charges. He did what he did, and it was crude and bad and stupid. But it seems to me that by fighting back he could stand up to the tyrannical elements of sexual harassment accusations and focus our attention on how they operate. At this point in our history, that is far more important than the question of whether he's a sex fiend.
FOR EVERY IMPORTANT and honest sexual harassment claim, there are 99 dishonest, evil ones. What's now coming to light is the other side—the terror, the extortion, the sheer cowardice.
"I call it graymail," said my old friend Bob Guccione Jr., who prevailed in a sexual harassment lawsuit at Spin magazine at the peak of the hysteria in 1994. "It's legalized blackmail, because there is a presumption of guilt when they make the charge."
In that landmark case, plaintiff Staci Bonner's lawyers asked for several hundred thousand dollars in hush money prior to filing a lawsuit. Guccione, like O'Reilly, surprised his accuser by fighting the case rather than settling.
It was a bouillabaisse of charges: Guccione had "sexualized the workplace," permitted a "hostile work environment" and "offered professional advancement in exchange for sexual favors."
The entire female staff was thereby subject to a taxidermy that removed their hide, stripped it of all they'd ever tried to achieve as professionals and hung it back onto them branded with a scarlet letter that supposedly proved they were nothing but objects of Guccione's desire.
The prosecuting attorney identifies herself as a feminist, as did the plaintiff and all of their supporters.
This is how I came to learn what these lawsuits are really about, and why I think Bill O'Reilly chose the right word when he said "evil."
I don't want to dignify the lawsuit by describing it further, but it is worth noting that despite several years of ruthless interrogation and a month-long Federal Court trial, they lost their case. The jury sided overwhelmingly with Guccione. I was central to the case, and affected in ways I can barely describe. The plaintiff had been my best friend at the magazine, somebody I thought of as a sister and trusted.
There is no stopping these juggernauts, no mechanism for protecting innocent people against having their lives destroyed by opportunistic lawsuits.
In those days, anything and everything sexual that was uttered or even hinted at in the workplace was treated like a form of rape. Somebody glanced at somebody's breasts in a corridor in 1989. Maybe. Somebody asked somebody's bra size for fact-checking purposes. Guccione repeatedly addressed female employees by saying: "Hello gorgeous!"
The insults and accusations were so random, in many cases having nothing to do with sex and something vaguely to do with being personable in the office. I recall being attacked in my two-day, 16-hour deposition torture session for writing "Happy Valentine's Day" at the end of a memo to two colleagues. The prosecuting attorney thundered: "Do you think that is professional Miss Farber?"
For god's sake. We were kids in our 20s, working at a rock magazine, and suddenly we were asked to defend, explain, justify and atone for everything we'd ever said, written, expressed, laughed at… to a total stranger who was suddenly empowered to impose her own standards for what "appropriate" behavior looked like at a mid-sized magazine in the 1980s.
It was weird. Inexplicable. Astounding. Terrifying. It was a net that came down from the sky.
The fear spread as more and more women found summonses slipped under their doors. There were lists, good women and bad women: Who had flirted with whom? Who had had sex with a colleague? With a boss? Who had laughed at sexual jokes? Who had worn short skirts?
At one point I said to Guccione's lawyers: Fine, if we must fight this as though it is a real "lawsuit," then so be it. But let's be clear: This is a mass hallucination. This is not real. It is a demonic fever and one day it will break, and we will look at all these accusations that once looked so damning and see that they are nothing at all. Nothing. A bunch of incoherent garbage.
Three years and many blighted lives later, when the jury returned its verdict it found substance in only one of six counts Bonner had leveled against Guccione and Spin—a charge of unequal pay—and awarded her a mere $10,000 in damages.
The lesson is twofold, and contradictory. If you choose to fight, you will be broken, driven half out of your mind from the ugliness of it all. It will take on average 10 years before you even begin to recover. But on the other hand, you may well win, because when this kind of reductionist, Newtonian, PC stuff actually lands in court, it rarely flies.
THE FEAR AT the core of sex-harass mania is spun from an outmoded blueprint on female sexuality that assumes exposure to unwanted sexual banter and/or pressure is not merely annoying, but profoundly "traumatic."
It can be—in severe and real cases. But the assumption itself is subject to the ever-changing mores and beliefs in the culture. And this is not the 1990s.
Just 10 years ago, it was assumed that any exposure to a sexual reference in any work context was demeaning, harassing and de facto horrifying to a woman. I don't know how or why that belief came about, but it may have to do with the 1980s über-idea that sex is lethal, that every erection is a gun in a game of Russian Roulette. If sex is lethal, then sexual banter is dangerous.
Sexual harassment law, culture and beliefs grew during an era of unprecedented sexual hysteria, and we were left with the subtext of those old, dead beliefs.
But now the pendulum has swung, and we are once again in an era of sexual indulgence, if not mania. How can sexual harassment be measured in a culture awash in sex? How can anybody know what's "inappropriate" when television pours out sex continually, peaking with a hit show about four women who don't even wear underwear and share every single gory detail of their sex lives with anyone willing to listen?
Asking whether Bill O'Reilly is "guilty" is the wrong question. The question is how to measure the alleged damage, once the culture has reversed itself and gone from anti-sex hysteria to pro-sex hysteria. In sexual harassment cases, the supposed injury is internal, subjective, personal and impossible to quantify. That's what makes them so dangerous, not just to men, but to women. To humanity. What's dangerous is the lack of objective standards. Sexual harassment has become anything anybody wants it to be.
In the case of Andrea Mackris, there is no touching, there is no quid pro quo, no threats, no firing. If she chose to stay on the line as O'Reilly "climaxed," and if she was indeed taping it, then she was consciously enabling—even staging—the very trauma for which she is now seeking multi-million-dollar recompense. It's an amazing case in many ways. A plaintiff who serves as a technical engineer to her own trauma: Rather than interrupt it, she records the trauma. This would seem to obviate the notion that the trauma was so severe as to require a $60 million salve.
You can't choose trauma, enable it and then sue for it. It has to be inflicted entirely against your will. Hence, the price is extortionist.
Yes, it may also be sexual harassment. But they blew that, by extorting Fox as a first move. Sexual harassment must be recorded in the form of, among other things, complaints to managers at the workplace. You're supposed to try to stop it as a first measure. You can't just lay out a Roach Motel to collect specimens of boorish behavior and cut straight to the shakedown.
Like everyone else, I've read the parts of the lawsuit that were clearly verbatim transcripts of O'Reilly's decontextualized sex-talk. It's pretty generic stuff. What I really want is her end of the conversation. Were we to be given the full transcripts, we might resolve once and for all the so-called mystery of these unfortunate debacles.
These sorts of sex-eruptions never happen in a vacuum, and everybody knows it. They happen inside of a dynamic that is fully understood only by the two people involved. This took a long time to develop. There were billions of signals between these two, a cosmos of communication both spoken and unspoken, and at some point the signals began to misfire; it got ugly. She might have been complicit up to a point, but that doesn't mean she encouraged it. She may have suddenly relived a childhood trauma and slammed on the brakes. A guy like Bill O'Reilly may not have been attuned to that. Men are not attuned to a lot of things. These things are impossible to decipher.
What was he doing? What was she doing? What were they after?
WHAT MADE HIM call her over and over? What made her go to dinner with him all the time? What made her not hang up when he allegedly pleasured himself on the phone?
Mackris' lawsuit, almost comically, concludes every x-rated monologue from O'Reilly with a clean, punctuating, "Plaintiff was repulsed."
The awful thing about these lawsuits is that we wind up in obscure chambers of the female psyche, where plaintiff is "repulsed," and it is simply the end of the world. This utterly subjective emotion is intended to justify a request for $60 million. Or $600 million.
What is repulsive is the market in corporate America for feminine sexual repulsion. It's a completely inflated market, where the price is arbitrary and infinite, because the injury can never be measured. It is a matrix of feelings that are being manipulated, and ultimately sold on a blackmail market driven by fear. This is a catastrophe of the capitalist system, one that commodifies every last bit of our humanity.
Having grown up in Sweden, that silly country where sex is viewed as part of nature, I have a split lens. It is a cliché and it has been said before, but Americans have very bizarre perceptions when it comes to sex, pornographically inclined yet puritanical at the same time. The women wield their sexual power, but don't understand it; they imbue it with way too much drama, hostility and paranoia.
The men, meanwhile, are severed from their feminine side, unable to express normal emotions; they interact with women like angry zoo-keepers. Sexual harassment is a symptom of a deep imbalance in the ecosystem between the sexes. I doubt there is any culture on Earth where women are expected to be as impossibly, relentlessly sexy as they are here, and at the same time, so uptight and punitive. As a Swedish male friend recently remarked: "Sexiness can itself become a kind of burqa, where the woman can't be seen."
I have been loath to admit it, but in America sex is the ticket to survival for women—still the meal ticket. It has taken me many years to grasp this. I could never understand why sexiness and femininity were so overwrought here—why such desperation? It must be fear. Fear of not surviving.
Sex, then, is a currency that can bring financial stability. If a woman's sexual "Yes" is commodified, then so is her sexual "No." In both cases, the culture objectifies the woman, obviates the private universe and creates a litigious hell on Earth. In a purely mechanistic world, you are nothing but the sum of your parts.
Bill O'Reilly's heavy breathing is no longer just a miscommunication between a man and a woman, but a miscommunication worth millions.
Consider the specifics of the O'Reilly/Mackris case and maybe you will begin to see why O'Reilly used the word "evil" to describe it. Premeditated entrapment and betrayal, for starters. Public humiliation on a scale beyond belief. The possible destruction of an entire career. Does this punishment fit the "crime"?
I do think that Bill O'Reilly objectified this woman. I also think that she objectified him, only much more egregiously. The strange thing is, she must have absolutely hated him to be able to do this. A woman with a normal heart fends off unwanted advances with skill, grace, deftness, consideration and maybe the occasional irritation. Not with an atomic bomb. Where is the humanity? And if we can conclude that she is bereft of humanity, then why must the nation drop what it is doing to address her violated emotions?
Her violated emotions?
ONE MAY ARGUE that a healthy man doesn't behave like O'Reilly did either. A man with a normal heart listens and decodes and senses a woman's responses—before he becomes expressive. For starters, they should be in a romantic relationship before the rest even begins.
But men are tone-deaf in that kind of corporate American culture. They are trained to think in terms of exchange and barter and power and sex. The more corporate an environment, the more likely it is that a man will become a sexual autist. If he has feelings for a woman, he beats them back like an evil snake. He can express sexual urges, but rarely with any real sense of direction or purpose. It's just sexual friction that goes out everywhere all the time—a deflated currency.
Bill O'Reilly is a kind of cultural id. He's a wounded, edgy, rather mean animal whose perceived virility lies in his courage to express what he likes in times of great censure. You might say his refusal to be repressed extended to his sexuality, and you might say that that's truly terrible. He's filled with vengeance over the emasculation of men in America over the past several decades, and with this injured libidinal pride, he's the perfect Avenging Hammer to the police state of sexual harassment law.
On behalf of many people who never got to fight back, I hope he resists the temptation to settle. That will only encourage the next dreadfully painful lawsuit and lead us nowhere in the real fight, which is the fight to understand ourselves and each other—to become more human, not less human. It may be strange to suggest that Bill O'Reilly could in any way protect the powerless, but I do hope he chooses the hard road—on behalf of all those who are walking around silent and maimed from things far stranger, far darker, far more evil than…phone sex.
Volume 17, Issue 43
© 2004 New York Press

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