May I have the pleasure ... sexual harassment is hard to define, easy to allege - and lucrative for the anti-harassment brigade.

ON OCTOBER 11, in the middle of the Anita Hill/Clarence Thomas contretemps, the New York Times somberly reported that sexual harassment pervades the American workplace. The source for this page-one story was a Times/CBS poll conducted two days earlier in which a handful (294) of women were interviewed by telephone. Thirty-eight per cent of respondents confirmed that they had been at one time or another "the object of sexual advances, propositions, or unwanted sexual discussions from men who supervise you or can affect your position at work." How many reported the incident at the time it happened? Four per cent.

Did the Times offer any explanation for why so few actually reported the incident? Could it be that these women did not report their "harassment" because they themselves did not regard a sexual advance as harassment? Some intelligent speculation on this matter might shed light on a key point: the vague definitions of harassment that make it easy to allege, hard to identify, and almost impossible to prosecute. Alas, the Times was in no mood to enlighten its readers.

It has been more than ten years since the Equal Employment Opportunity Commission (EEOC) wrote its guidelines defining sexual harassment as a form of sexual discrimination and, therefore, illegal under Title VII of the Civil Rights Act of 1964. According to the EEOC there are two different types of harassment: so-called quid pro quo harassment, in which career or job advancement is guaranteed in return for sexual favors, and environmental harassment, in which unwelcome sexual conduct "unreasonably interferes" with an individual's working environment or creates an "intimidating, hostile, or offensive working environment."

Following the EEOC's lead, an estimated three out of four companies nationwide have instituted strict policies against harassment; millions of dollars are spent each year educating employees in the subtleties of Title VII etiquette. Men are warned to watch their behavior, to jettison the patronizing pat and excise the sexist comment from their vocabularies.

Yet, if you believe what you read in the newspapers, we are in the Stone Age where the sexes are concerned. A theme common to the media, plaintiff's lawyers, and employee-relations consultants is that male harassment of women is costing corporations millions each year in lost productivity and low employee morale. "Sexual harassment costs a typical Fortune 500 Service or Manufacturing company $6.7 million a year" says a sexual-harassment survey conducted late in 1988 for Working Woman by Klein Associates. This Boston consulting firm is part of a veritable growth industry which has sprung up to dispense sexual-harassment advice to worried companies in the form of seminars, videos, and encounter groups.

But is sexual harassment such a huge problem in business? Or is it largely a product of hype and hysteria? The statistics show that sexual harassment is less prevalent today than it was five years ago. According to the EEOC, federal cases alleging harassment on the job totaled 5,694 in 1990, compared to 6,342 in 1984. Yet today there are 17 per cent more women working than there were then.

At that, the EEOC's figures are almost certainly too high. In a good many of those complaints, sexual harassment may be tangential to the case; the complaint may primarily involve another form of discrimination in Title VII territory: race, national origin, or religious discrimination, for example. The EEOC doesn't separate cases involving sexual harassment alone; any case where sexual harassment is mentioned, even in passing, gets lumped into its figures.

Many of the stories depicting sexual harassment as a severe problem spring from "consultants" whose livelihoods depend upon exaggerating its extent. In one year, DuPont spent $450,000 on sexual-harassment training programs and materials. Susan Webb, president of Pacific Resources Development Group, a Seattle consultant, says she spends 95 per cent of her time advising on sexual harassment. Like most consultants, Miss Webb acts as an expert witness in harassment cases, conducts investigations for companies and municipalities, and teaches seminars. She charges clients $1,500 for her 35-minute sexual-harassment video program and handbooks.

Unfelt Needs

CORPORATIONS began to express concern on the issue back in the early Eighties, just after the EEOC published its first guidelines. But it was Meritor Savings Bank v. Vinson, a harassment case that made it to the Supreme Court in 1985, that really acted as an employment act for sex-harassment consultants. In Vinson, the Court stated that employers could limit their liability to harassment claims by implementing anti-harassment policies and procedures in the workplace. And so, the anti-harassment industry was born.

Naturally, the consultants believe they are filling a need, not creating one. "Harassment is still as big a problem as it has been because the workplace is not integrated," says Susan Webb. Ergo, dwindling numbers of cases filed with the EEOC are simply not indicative of a diminution in the problem.

Then what do the figures indicate? Two things, according to the harassment industry. First, that more plaintiffs are bringing private lawsuits against their employers than are suing through the EEOC or state civil-rights commissions. Second, that the number of cases filed is a drop in the bucket compared to the number of actual, everyday harassment incidents.

It certainly stands to reason that a plaintiff in a sexual-harassment case would prefer bringing a private action against her employer to filing an EEOC claim. EEOC and state civil-rights cases allow plaintiffs only compensatory damages, such as back pay or legal fees. In order to collect big money--punitive damages--from an employer, a plaintiff must file a private action.

Yet there's simply no proof that huge or increasing numbers of private actions are being filed today. No data are collected on numbers of private harassment suits filed, largely because they're brought as tort actions--assault and battery, emotional distress, or breach of contract. During the second half of the Eighties, the San Francisco law firm of Orrick, Herrington, and Sutcliffe monitored private sexual-harassment cases filed in California. Its findings: From 1984 to 1989, the number of sexual-harassment cases in California that were litigated through to a verdict totaled a whopping 15. That's in a state with almost six million working women.

Of course, cases are often settled prior to a verdict. But how many? Orrick, Herrington partner Ralph H. Baxter Jr., management co-chairman of the American Bar Association's Labor Law Committee on Employee Rights and Responsibilities, believes the number of private sexual-harassment cases launched today is greatly overstated. "Litigation is not as big a problem as it's made out to be; you're not going to see case after case," says Mr. Baxter. "A high percentage of matters go to the EEOC and a substantial number of cases get resolved."

Those sexual-harassment actions that do get to a jury are the ones that really grab headlines. A couple of massive awards have been granted in recent years--five plaintiffs were awarded $3.8 million by a North Carolina jury--but most mammoth awards are reduced on appeal. In fact, million-dollar sexual-harassment verdicts are still exceedingly rare. In California, land of the happy litigator, the median jury verdict for all sexual-harassment cases litigated between 1984 and 1989 was $183,000. The top verdict in the state was just under $500,000, the lowest was $45,000. And California, known for its sympathetic jurors, probably produces higher awards than most states.

Now to argument number two: that the number of litigated harassment cases is tiny compared to the number of actual incidents that occur. Bringing a sexual-harassment case is similar to filing a rape case, consultants and lawyers say; both are nasty proceedings which involve defamation, possible job loss, and threats to both parties' family harmony.

It may well be that cases of perceived harassment go unfiled, but is it reasonable to assume that the numbers of these unfiled cases run into the millions? Consider the numbers of cases filed that are dismissed for "no probable cause." According to the New York State human-rights commission, almost two-thirds of the complaints filed in the past five years were dismissed for lack of probable cause. Of the two hundred sexual-harassment cases the commission receives a year, 38 per cent bring benefits to the complainant.

What about private actions? No one keeps figures on the percentage of cases nationwide won by the plaintiff versus the percentage that are dismissed. However, the outcomes of private sexual-harassment suits brought in California from 1984 to 1989 mirror the public figures from New York. According to Orrick, Herrington, of the 15 cases litigated to a verdict in California from 1984 to 1989, slightly less than half were dismissed and slightly more than half (53 per cent) were won by the plaintiff.

Are California and New York anomalies? Stephen Perlman, a partner in labor law at the Boston firm of Ropes & Gray, who has 15 years' experience litigating sexual-harassment cases, thinks not: "I don't suppose I've had as many as a dozen cases go to litigation. Most of the cases I've seen--the vast majority--get dismissed. They don't even have probable cause to warrant further processing."

What Is Harassment?

A MAJOR PROBLEM is the vague definition of harassment. If "environmental harassment" were clearly defined and specifiable, lawyers would undoubtedly see more winnable cases walk through their doors. Asking a subordinate to perform sexual favors in exchange for a raise is clearly illegal. But a dirty joke? A pin-up? A request for a date?

In fact, behavior which one woman may consider harassment could be seen by another as a non-threatening joke. The closest thing to harassment that I have experienced during my 15-year career occurred in the early Eighties when I was a stockbroker-in-training at Dean Witter Reynolds in New York City. I had brought in the largest personal account within Dean Witter's entire retail brokerage system, an account which held roughly $20 million in blue-chip stocks. Having this account under my management meant I had a larger capital responsibility than any of my colleagues, yet I was relatively new to the business. My fellow brokers were curious, but only one was brutish enough to walk right up to me and pop the question: "How did you get that account? Did you sleep with the guy?"

Instead of running away in tears, I dealt with him as I would any rude person. "Yeah," I answered. "East your heart out." He turned on his heel and never bothered me again. Was my colleague a harasser, or just practicing Wall Street's aggressive humor, which is dished out to men in other ways? Apparently, I am in the minority in thinking the latter. But the question remains. Whose standards should be used to define harassment?

Under tort law, the behavior which has resulted in a case--such as an assault or the intent to cause emotional distress--must be considered objectionable by a "reasonable person." The EEOC follows this lead and in its guidelines as that which harassment as that which "unreasonably interferes with an individual's job performance."

Yet, sexual-harassment consultants argue that any such behavior--even that which is perceived as harassment only by the most hypersensitive employee--ought to be considered illegal and stamped out. In fact, they say, the subtler hostile-environment cases are the most common and cause the most anguish. Says Frieda Klein, the Boston consultant: "My goal is to create a corporate climate where every employee feels free to object to behavior, where people are clear about their boundaries and can ask that objectionable behavior stops."

Sounds great. But rudeness and annoying behavior cannot be legislated out of existence; nor should corporations be forced to live under the tyranny of a hypersensitive employee. No woman should have to run a daily gauntlet of sexual innuendo, but neither is it reasonable for women to expect a pristine work environment free of coarse behavior.

Susan Hartzoge Gray, a labor lawyer at Haworth, Riggs, Kuhn, and Haworth in Raleigh, North Carolina, believes that hostile-environment harassment shouldn't be actionable under Title VII. "How can the law say one person's lewd and another's nice?" she asks. "There are so many different taste levels. . . . We condone sexual jokes and innuendos in the media--a movie might get a PG rating--yet an employer can be called on the carpet because the same thing bothers someone in an office."

But changing demographics may do more to eliminate genuine sexual harassment than all the apparatus of law and consultancy. As women reach a critical mass in the workforce, the problem of sexual harassment tends to go away. Frieda Klein says the problem practically vanishes once 30 per cent of the workers in a department, an assembly line, or a company are women.

Reaching that critical mass won't take long. According to the Bureau of Labor Statistics, there will be 66 million women to 73 million men in the workplace by 2000. They won't all be running departments or heading companies, of course, but many will.

So sexual harassment will probably become even less of a problem in the years ahead than it is today. But you are not likely to read that story in a major newspaper anytime soon. Indeed, sexual harassment has all the earmarks of an issue Democrats will use to try to steal voters, particularly women, from the GOP. Such tactics are more likely to worsen the Democrats' already woeful standing with male voters, who went 58 per cent Republican in the last presidential election. The likelihood of losing more than they stand to gain from highlighting sexual harassment probably won't stop the Democrats--unless George Bush has saved them by endorsing the feminist agenda of punitive damages for vaguely defined sex-harassment charges in his new litigation-boosting civil-rights bill.