The question for Fried is whether constitutional law needs to respond to “changed circumstances" — but isn't this the essence of living constitutionalism?
Sexual harassment in the workplace, which was not a legal category before the 1970s, raises complicated issues. Of course, there have been lecherous men making advances toward women, and/or engaging in crude and boorish behavior, since time immemorial. And it will ever be so. My goal is not, however, to excuse men’s bad behavior, but to explore the origins of workplace sexual harassment as a now-ubiquitous legal claim. My account departs from that offered by Rachel Lu in her Liberty Forum essay in subtle but potentially important respects.
A “Poison Pill” that Became the Law of the Land
The story begins in the aftermath of the assassination of President Kennedy, when the Johnson administration advanced the long-delayed Civil Rights Act of 1964, over the objections of racist Southern Democrats who strongly supported segregation. Two days before the pivotal vote on the floor of the U.S. House of Representatives, a staunch opponent of the bill, Representative Howard Smith (D-Va.), amended it to add “sex” to the list of characteristics protected from discrimination. The specter of a federal law requiring equality of the sexes was supposed to be a poison pill. Smith voted against the very bill he had amended, but it passed. As a result, the employment provisions of the Civil Rights Act of 1964 (Title VII) prohibited discrimination on account of race and sex—with the latter regarded as a fluke, a joke that backfired.
Title VII does not mention the term “sexual harassment.” The phrase is entirely a judicial and administrative creation, concocted long after Title VII was enacted. The Equal Employment Opportunity Commission, adopting a variant of Catharine MacKinnon’s novel theory (prominently advanced, as Lu said, in MacKinnon’s book Sexual Harassment of Working Women), invented the claim as a form of sex discrimination. A radical feminist who later joined forces with Andrea Dworkin to advocate legislation banning pornography, MacKinnon saw sexual harassment as an expression of “unequal power”: men’s economic dominance of women in the workplace.
MacKinnon recognized that her political and economic goal of eliminating all differences between the sexes was incompatible with existing legal theories under Title VII. She therefore created a new paradigm: the “inequality approach,” which would outlaw “all practices which subordinate women to men.” MacKinnon’s jargon-laden theory was an attack on both patriarchy and capitalist exploitation. “Women historically have been required to exchange sexual services for material survival, in one form or another. Prostitution and marriage as well as sexual harassment in different ways institutionalize this arrangement,” she wrote.
The Deep State apparatchiks at the EEOC, with left-wing activist Eleanor Norton Holmes at the helm, adopted MacKinnon’s wacky approach along with the two types of legal claims she put forth: “hostile work environment” and “quid pro quo.” Neither type (with so-called “hostile work environment” claims now overwhelmingly predominating in number) can legitimately be derived from the statutory language prohibiting sex discrimination.
How, then, did Title VII’s ban on discrimination become the basis for regulating dirty jokes, sexual innuendo, lewd comments, and other risqué conduct in the workplace? How did it come to pass that a supervisor’s sexual entreaties would be equated with racial bigotry? Maladroit judicial decisions, whether due to well-intentioned groupthink or conscious activism, have produced legal chaos, spawning interminable litigation and the #MeToo meme. Thus, I emphatically agree with Professor Lu that the legal framework for addressing sexual harassment is inadequate, and terribly confusing. Fixing it requires that we understand what precisely went wrong.
The Civil Rights Act of 1964 was primarily intended to promote racial equality. Its Title VII eliminated racial apartheid in the workplace by prohibiting discrimination on the basis of race, along with certain other protected characteristics, namely: color, religion, national origin, and (thanks to Representative Smith) sex. A decade after Brown v. Board of Education (1954), throughout the United States (and especially in the South), blacks were still disfavored as a group. They were still being denied many employment and housing opportunities generally available to whites. Blacks were even barred from (or forced to use separate areas of) many privately owned businesses such as hotels and restaurants. Racial discrimination—finally prohibited by federal law—reflected a group-based animus directed against one class (blacks) by another class (whites). That is what “because of race” means—an employer singling out an employee for adverse treatment due to his or her race.
The same reasoning applies to sex discrimination. Title VII and similar laws do not proscribe unfair treatment, or crass behavior, only certain types of intentional, group-based discrimination. Absent a statutory prohibition, employers are free to do as they please. Congress specified the protected categories, and not all groups or traits are covered. Thus, “sex discrimination” means intentionally denying women employment opportunities generally available to men because of their sex (and vice versa). Therefore, if one woman receives preferential treatment over another woman for a promotion, there logically can be no sex discrimination claim because the beneficiary of the challenged decision was not a man. Consistent with the class-based nature of Title VII, the seminal McDonnell Douglas standard makes the preferential treatment of an employee not in the relevant “protected class” an element of the plaintiff’s prima facie case.
Looser and Looser Textual Interpretation
In order to limit government power and protect individual liberty, courts should generally limit the application of a statute to its actual text. Broadening the scope of laws by unmooring them from their express language enables arbitrary application and government overreach. Early on, the Supreme Court ruled—correctly—that employment discrimination based on pregnancy did not violate Title VII because not all female employees get pregnant; sex and pregnancy are not equivalent. Feminists denounced the Court’s holding as a “formalistic conception of discrimination,” but that objection amounts to quarreling with the result, rather than the reasoning itself. In 1978, Congress amended the statute specifically to include pregnancy, and the Supreme Court, thus chastened, has been gun-shy ever since.
The Court has subsequently interpreted Title VII expansively. For example, in the 1989 case of Price Waterhouse v. Hopkins, it ruled that discrimination based on sex covers “sex stereotyping,” thus allowing a suit by a female employee who was criticized for not being feminine enough—even though not all females fit this profile. The Supreme Court similarly erred in 1986 when it accepted the EEOC’s theory of sexual harassment as a form of sex discrimination in Meritor Savings Bank v. Vinson. Some federal courts of appeals are now construing “sex discrimination” to include discrimination on the basis of sexual orientation, even though Congress has repeatedly declined to amend Title VII to add sexual orientation as a protected characteristic. (I discuss Hively and Zarda here, here, and here.)
Over the years, judges have made many conceptual and doctrinal errors, creating what Ellen Frankel Paul called a “defective paradigm.” The fundamental problem with sexual harassment law is that sexual attraction is not the same as sex discrimination. I agree with Lu’s conclusion that “sexual misbehavior really is more properly seen as an inappropriate expression of sexual desire,” but quarrel with some of her intervening analysis. For instance, I dispute the suggestion that sexual attraction is a form of “discrimination” within the meaning of Title VII, which doesn’t contain terms such as “unjust” or “inappropriate.” That inapt terminology invites confusion. Title VII proscribes employment discrimination based on certain categories, and otherwise leaves an employer’s inherent discretion undisturbed, regardless of whether it is “just” or “appropriate.”
In fact, the early decisions that rejected sexual harassment claims under Title VII, including that of Judge Robert Bork, when he served on the D.C. Circuit (Vinson v. Taylor, 1985), avoided this error. In those cases, judges correctly reasoned that because the alleged harasser targeted some, but not all, female employees for unwanted sexual attention, his conduct did not amount to categorical discrimination “on the basis of sex.” The decisions weren’t suggesting that heterosexual attraction was permitted by Title VII because it is the norm, or that it was appropriate, only that individuals’ personal actions in the workplace did not constitute categorical discrimination by employers on the basis of sex. There is no indication that, in drafting Title VII, Congress intended to alter Americans’ basic biological alignment or corresponding behavior patterns, or to unravel what radical feminists regard as “the larger political economy of heterosexuality”—that is, the perceived oppressive patriarchy and its purported economic domination under a capitalist system.
To my mind, the salient objection to current sexual harassment law is that innate attraction between the sexes—in all of its various manifestations—simply does not constitute the type of employer animus that Title VII was intended to address. Flirtatious behavior and raunchy banter in the workplace may be inappropriate, clumsily executed, in poor taste, and offensive; but unless Title VII is judicially rewritten (or amended by Congress) to make it a workplace etiquette code, such personal conduct does not amount to employment discrimination based on sex. Even though they may occasionally lead to boorish—even predatory—conduct, individuals’ heterosexual urges and personal chemistry are not comparable to racial/ethnic prejudice or religious bigotry, the evils that Title VII sought to combat. Human sexuality is not akin to racism, contrary to the belief of the Second Wave feminists who brought us our current legal regime.
Congressional Abdication, Judicial Aggrandizement
This is not to excuse workplace misbehavior now denominated sexual harassment. Such behavior sometimes borders on criminal assault, and even rape, and should be dealt with through the criminal justice system, common law tort actions (personal injury claims for assault, battery, or invasion of privacy, with appropriate consideration of the issue of consent), or pursuant to a state or federal statute that expressly addresses—and clearly defines—what we now often sloppily refer to as sexual harassment. Congress abdicates its constitutional authority as lawmaker—thus empowering the administrative state—when it allows unelected EEOC bureaucrats to legislate. Judges compound the error by endorsing fanciful (and textually bogus) statutory interpretations.
The absurdity of the derivation of “sexual harassment” from the statutory ban on sex discrimination was revealed in Oncale v. Sundowner Offshore Services (1998), where the Supreme Court recognized a claim for “same-sex” sexual harassment. If women can “harass” women, and men can “harass” men, where is the nexus to discrimination on account of sex? How can supervisors who are abusive to men and women alike—equal opportunity bullies—be deemed to violate Title VII? The incoherence of Oncale demonstrates that Meritor and Harris v. Forklift Systems (1993) were based on a faulty interpretation of Title VII. A sure sign that a legal doctrine has taken a wrong turn—like Title IX cases alleging mutually non-consensual sexual encounters—is when it leads to a dead end, or goes aimlessly in circles.
Sexual harassment is indeed a legal maze—a labyrinth of truly mythic proportions. For too long common sense has been sacrificed to the Minotaur of political correctness. The text of Title VII (and early caselaw) provide the thread we can follow to escape—if our lawmakers have the political will.
 Title VII states: “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. section 2000e-2(a)(1).
 Catharine A. MacKinnon, Sexual Harassment of Working Women (Yale University Press, 1979), pp. 4, 174, and 175. On p. 127, MacKinnon candidly describes her “theory” as “a political strategy to guide legal intervention.”
 General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Geduldig v. Aiello, 417 U.S. 484 (1974).
 Reva B. Siegel, “A Short History of Sexual Harassment,” in Directions in Sexual Harassment Law, edited by Catharine A. MacKinnon and Reva B. Siegel (Yale University Press, 2003), p. 13.
 490 U.S. 228 (1989).
 477 U.S. 57 (1986). See also Harris v. Forklift Systems, 510 U.S. 17 (1993).
 See Vinson v. Taylor, 760 F. 2d 1330, 1333 n.7 (D.C. Cir. 1985).
 See Barnes v. Train, 13 F.E.P. Cases (BNA) 123, 124 (D.D.C. 1974); Corne v. Bausch and Lomb, Inc., 390 F. Supp. 161, 163 (D. Ariz. 1975); Miller v. Bank of America, 418 F. Supp. 233, 234-36 (N.D. Cal. 1976); Tomkins v. Public Service Electric and Gas Co., 422 F. Supp. 553, 556-57 (D.N.J. 1976).
 Siegel, “A Short History of Sexual Harassment,” p. 9.
 523 U.S. 75 (1998). The Court’s insistence that same-race “discrimination” is possible under Title VII (a black person discriminating against a black person) reveals that it has strayed from the group-based foundation of Title VII. If true, whites could complain of discrimination by other whites, women against other women, or men against other men. If Oncale’s logic is taken even further, a black employee alleging discrimination could complain of disparate treatment if the preferred employee was also black, and so on. This broad construction converts Title VII from a group-based discrimination law into a warrant for regulating the fairness of individual employment decisions, which was plainly not Congress’ intent. Even feminists are confounded by Oncale—see Siegel’s “A Short History of Sexual Harassment,” pp. 23-26.