Managing (Sexual) Harassment Law in the Age of Gene-Edited Humans

"How the EEOC, a tiny federal agency being saddled with oversight of two seemingly disparate issues; one which is “time immemorial” versus the other, that's just hours old, is the definition of legislative insanity".

The history of “litigable” sexual harassment law is a relatively new phenomena in the United States (under 50 years old), while the history of illegal gene-edited human engineering is, as of today, 5/11/19, under 50 “hours” old. 

Working on 2 unrelated projects during the last year; one that is AI, VR & AR-related, with the other having to do with sexual harassment, to me at least, these two topics have more in common than I ever originally imagined.

What's startling is that - how the United States government is monitoring them - shows that there is one tiny federal agency that is responsible in the workplace for oversight of both.

With no law degree to my name, yet having spent many hours on legal sites on what little has been legislated into law on these topics, as a lay person, it is nevertheless nerve-wracking to me to see how much more work, legislation and education needs to be generated on them, given our 21st century sensibilities.

Growing up on Madison Avenue and working in the advertising field for 25+ years, the old adage that “sex sells” has been a bromide since long before the days of Don Draper. However, what few people in the advertising business realize is that the first legal case ever to be argued before the Supreme Court on the subject, began between two senior execs from the once-vibrant print publishing business. That's a topic for another day.

This analysis hopes to document the history of "what little" progress there has been made on sexual harassment-related law, before the advent of the #MeToo movement, which has accomplished more in the last 2+ years, to educate society, than what the government has done on a national and local level, in almost 50 years. 

For all the attention that various public figures from Donald Trump & Harvey Weinstein, to Les Moonves have exposed this type of behavior, it's frustrating to see how the media - not the judicial system - has been on the forefront of paving the way to bringing better understanding, awareness and legislation to educate and monitor the subject in our society, than the courts. 

If there’s a reason why so little has been accomplished, it’s hard to discern any other reason for this, except that the legal profession has been dominated by men for the last several centuries. 

With so few women in government and in law firms until now, with such unbalanced gender skews, it’s the same reason why slavery lasted in the US for 250+ years before Lincoln. There were no slaves in power to legislate laws to make buying, selling and owning another person’s body illegal. And like slaves, it's not far out to imagine that genetically engineered humans may or may not have the same representation in the future.

On a Federal judicial level, the courts did not even consider “sexual harassment” technically against the law, until 12 years after Congress signed the Civil Rights Act of 1964. 

Why?

Because there were no laws on the books before that. The ones that were, were rigged "against" women. Years ago, if hostile and/or aggressive behavior were not considered as assault, battery or rape, there were no laws or legal precedents that identified any other inappropriate behavior that could be considered a litigable sexual harassment-related offense.

Many of us assume that with time and legislation, much has been done to remedy this. But the truth is, it hasn’t. If one takes a glass half-full approach, it’s also not difficult to imagine that the #MeToo movement, combined with more and more women entering the legal profession and running for elective office, that the next 20 years could speed progress in this area, which is great.

Though first, we need to acknowledge that we as a country are woefully under-prepared to adequately advance sexual harassment education and understanding on a Federal level, when right behind it comes gene-edited human treatment and/or abuse/harassment.

Although Slavery was abolished by the Emancipation Proclamation in 1863, it wasn’t until 100+ years later that the federal court system began to slowly change.

The problem is that it took a lot of time; something progress seems to be making more scarce. The 19th amendment granted women the right to vote in 1920. Then, 40+ years went by before anything more was done, with the enactment of the landmark Civil Rights Act of 1964.

Most people do not realize that the second Women’s Rights Movement began with Civil Rights. Leaders such as Kathy Keeton, Gloria Steinem, Sandra Day O’Connor and Ruth Bader Ginsberg, among others led the next wave of progress in the 1970s, though here in 2019, once the Equal Rights Amendment lost steam in 1982, the Feminist Movement didn’t appear in headlines until relatively recently, with #MeToo.

Before the Supreme Court legalized Marriage Equality in 2015, it was not long ago that the term “husband’ was synonymous with being a male. Going back several centuries to old English law, “Husbands wield power over their wives, being their rulers and custodians of their property”. In many states, a wife ultimately became the property of her husband.

The first steps toward defining harassment in the workplace began in 1965 with the creation of the EEOC, (Equal Employment Opportunity Commission) which was designed to ensure that all Americans’ civil liberties were protected.

However, the EEOC’s jurisdiction initially had multiple other tasks to establish national precedents on, which would weave new legal verbiage to protect "applicants and employees from discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex (including pregnancy), or national origin". 

Not exactly a thin agenda.

Once created, based on limited government funding, combined with its charge to bring fairness to the marketplace and workplace, the well-meaning EEOC almost immediately had a back-load of issues that affected millions of American workers, which were felt to be more important than sexual harassment.

For example, the EEOC's mandate was quickly increased under several pieces of legislation, like the Age Discrimination in Employment Act of 1967 (ADEA), the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA) of 1990, and the ADA Amendments Act of 2008, among others. 

History shows that the federal government has - in no small way - burdened this tiny agency to "right more of society’s wrongs" with the enactment of other related vertical laws, including the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. 

By no means perfect, the EEOC has also had its fair share of embarrassments as well, considering one Clarence Thomas, the most well-known person to get away with sexual harassment and get a lifetime appointment as a justice on the Supreme Court. Ironically the longest serving Chairman of the EEOC, Thomas was appointed in 1982 by President Reagan, who then hired one Anita Hill and the rest, as they say was history.

However, for as much as the Gipper made a bad call with Thomas, he may be somewhat forgiven for his nomination and confirmation of Sandra Day O’Connor, the first female Supreme Court Associate Justice, a year earlier, in 1981.

As compared to the NSA, which has an estimated 30,000 to 40,000 employees to monitor national security, and a classified budget that is in excess of $10 billion annually, the size of its operation doesn’t necessarily demonstrate positive ROI, considering that our last election was orchestrated and infiltrated right under our very noses by a foreign adversary. 

Notwithstanding the waste, with a tiny staff of just 2,500, and a footprint of managing the world’s largest economy that consists of over 120 million workers, it’s nothing short of amazing that the EEOC has made any dent in this provocative and controversial area at all. 

Now, in the age of AI, things are about to become even more chaotic.

Science Labs around the world may soon be the new areas of gender rule-breaking, as American-trained, Dr. He Jiankui - in seeking glory for China - kept his gene-editing experiment secret, ignored peers’ warnings and faked a test until recently.

With the creation of gene-edited humans, combined with the media and the film industry’s obsession with robots and AI, it's not impossible to imagine how quickly Blade Runner’s “Replicants” tale will be a reality.

Believe it or not, a decade ago, Congress had already authorized the EEOC to also take on science, with the Genetic Information Nondiscrimination Act of 2008, though it’s boggling to the mind when we consider how - with the pace of change - that this tiny agency can be effective. 

As the above photo hopes to express, the EEOC is America’s primary eyes of monitoring both workplace sexual harassment law and the use/application of genetic information; relative to what constitutes legal, appropriate behavior in modern society.

After it was created in 1965, as part of the Great Society era, it took the EEOC over a decade before they could even get to defining what constituted sexual “hostility” in the workplace. It wasn't until 1977, 12 years after it was formed that sexual harassment was added to the legal docket. 

As a result, the good news is that applicants and employees of most private employers, state and local governments, educational institutions, employment agencies and labor organizations are now protected under Federal law from discrimination, though to this day, there is still no clear legal verbiage in the EEOC charter that covers sexual harassment. Believe it or not, on a state level, it’s even worse.

Now, as we begin to deal with the possible gene editing of babies, who will surely become children and later, adults, maybe our national priorities need another fresh look, beginning with reducing some of the wasted $$ being spent at the NSA with a healthy reallocation to the EEOC; where the quality of American lives are affected far more than anything the Russians can throw at us.

How the EEOC will juggle the oversight of “time immemorial” sexual harassment conduct while simultaneously being saddled with the yet unknown effects of genetic engineering, it is difficult to imagine how this important, but tiny federal agency will be able to manage change relating to both these issues at the same time.