NCPA - National Center for Policy Analysis

Tilting The Rules On Sexual Harassment

July 5, 2000

Ever wonder why Paula Jones' lawyers were able to ask President Clinton about his sexual relations with other women? According to a new book, Clinton himself is to blame.

  • In 1994 Clinton signed into law the Molinari amendments to the federal rules of evidence.
  • Named after Rep. Susan Molinari (R-N.Y.), the amendments permit the plaintiff in a sexual harassment suit to examine the defendant's personal life in search of examples of similar behavior.
  • Under the prior, centuries-old common law, the defendant's past behavior would have been deemed irrelevant.

Written by Jeffrey Rosen, George Washington University associate law professor and a contributor to the New Republic, the book shows that the mere filing of a lawsuit can become a license to pry into the personal life of any hapless victim. And, as in the case of President Clinton, shows that not only is the defendant's privacy invaded but also the privacy of others -- like Monica Lewinsky.

New rules of evidence aren't the only way sexual harassment law has become a threat to privacy for ordinary citizens. Employers, rather than an offending employee, can be held liable for allowing a "hostile environment" in which the harassment took place. To protect themselves employers are moving aggressively to monitor employees' e-mail messages and Internet activity.

To protect the privacy of everyone, Rosen recommends two changes in the law:

  • Restore common law rules of evidence, making prior sexual relations out of bounds.
  • Make the sexual harasser, not the employer, liable for hostile environment claims.

Source: Alex Kozinski, "Pull Down the Blinds," review of "The Unwanted Gaze," Jeffery Rosen (New York: Random House, 2000), New York Times Book Review, July 2, 2000.


Browse more articles on Government Issues