Reason Magazine - Staff

Confessions of a "Woman-Owned Business" Owner

info@reason.com (Tama Starr) — Thu, 01 Jul 2004 00:00:00 EDT

Well, I finally did it. I bit the bullet and got certified as a WOB: a woman-owned business. It took a roots-up, religious-type conversion -- I'd walked in darkness, then I saw the light. And now that I am a proud -- or do I mean "humble"? -- official victim, my company is entitled to all kinds of preferential treats. Whether ordained by law, as in government contracting, or as an example of aggressive good-guy-ism in the P.R.-conscious private sector, or even as a hopeful prophylaxis against employee or shareholder lawsuits, a passel of lucrative work is reserved for those with the best-crafted claims to prior oppression.

Well-wishers had been after me to go WOB for years, but I refused. Until my revelation, I regarded set-asides as strictly a pat on the head for second-raters. My company, Artkraft Strauss, has been provi-ding signs and outdoor advertising -- and paying taxes -- since 1897. We'd never imagined ourselves qualified for charity. Our firm gets and keeps customers by fulfilling their contracts, not by invoking their pity. Besides, using sex to get work smacks of a profession even older than sign building. The whole endeavor struck me as disreputable.

But then I realized I was a victim of something even more pernicious than discrimination: pride.

My chief of operations, Jimmy, put the matter into perspective. "What are you, nuts?" he asked, reminding me of how many hoops we've jumped through and rings we've kissed over the years to get jobs. "How's this different?" he wanted to know. "If a job is set aside for guys named Jimmy, my name is Jimmy, I'll take it!" Jimmy was right: Business is business.

A bank's name change provided the tipping point. We sign people love bank mergers. Every sign, canopy, directory, ATM, teller cage, and nameplate has to be replaced -- sometimes, in the spirit of the famous Asiatic Fire Drill, overnight, per schedules set forth in the new company's new charter.

This particular changeover involved nearly 1,000 branches in five states. And as I learned when my phone started ringing off the wall with joint-venture pleas from companies I'd never heard of, the taking-over bank had a "utilization rate" of 18 percent. That is, nearly one-fifth of the money spent on construction work would go to WOBs or MBEs (i.e., minority business enterprises; presumably for reasons of euphony, minority-owned businesses generally are called MBEs rather than MOBs). Given how rare such businesses are in the sign trades, at least here in the Northeast, this cake had been baked for me.

Indeed, at the pre-bid conference, the bank's construction consultants were thrilled to see a genuine WOB among the bidders. Apart from the responsibility of physically reconfiguring a thousand banks, they had the head-scratching duty of coming up with the magical 18 percent of oppressed beings.

Their faces fell, however, when they learned I lacked certification. It turns out that it isn't enough to be a WOB; one has to be an officially certified WOB. The contract was to be awarded in only 10 days, and all the paper had to be in place. But state certification can take six to eight months, they told me, because of the volume of applicants and the demanding nature of the process.

Not to worry, I told them.

While Jimmy and his crew worked on the bid, I worked on the red tape. Getting certified as a WOB is something like getting certified insane: It takes time and talent. As I filled out forms and assembled documentation, I wondered how people who are authentically disadvantaged -- or who may not have certified public accountants and English majors on staff -- manage it. Anyone who can produce three years of audited financial statements, five years of income projections, a sheaf of valid "Rated-A" insurance certificates, answers to stacks of multiple-choice and essay questions, a book of "minority utilization re-ports," and a portfolio of supplier and customer references, bank references, and character references probably qualifies for a $100 million line of credit, if not an MBA.

In went the bid, marked "Certification Pending," and into the bowels of the New York State Division of Human Rights went the WOB application.

Undercover Brothers

Not 36 weeks but a mere 36 hours later, the Division of Human Rights called to schedule my interview to complete the process. How did I accomplish this feat? In an example of the old-fashioned "net-working" that affirmative action is supposed to obviate, a confederate at my insurance company called a counterpart whose sister-in-law works in Albany, and our application miraculously migrated from the bottom of the pile to the top. But hey, by now I wanted the job.

The prospect of an investigator's coming in to establish my female bona fides evoked the image of a burly guard out of a 1950s Women's House of Detention movie marching me into the ladies' room and demanding to see the cut of my undergarments. Instead, the investigator turned out to be a grave young man attired in a three-piece suit with Edwardian collar and gold watch fob. He requested my company's original charter and certificate of incorporation; all minutes and bylaws and amendments from inception to date; all stock certificates issued, canceled, and outstanding; and the factory's original certificate of occupancy -- a complete set of century-old documents, much of which I managed to produce by sheer luck. The investigator took careful note of my office décor, plants and curtains evidently witnessing more in my favor than cordovan leather and sports memorabilia would have.

What he was really looking for, he explained, was uncles and brothers hiding under the desk. "You'd be surprised," he told me flintily, "how many people try to put one over on us."

No, I wouldn't. Not with all those set-asides in the offing. Add the 10 percent price bonus the designated oppressed are entitled to charge -- "price evaluation adjustment," in federal procurement�speak -- and the incentive to fudge becomes overwhelming.

Set-asides and "evaluation adjustments" are as pervasive at the big-business end of the private sector as they are in government contracting. Expensive and inefficient these programs may be, but lawsuits are worse. The best defense against discrimination claims, corporate officers are constantly told, is an explicit, detailed, and overarching "affirmative action program" respecting hires, fires, and contracting. Point to this program, and a bevy of bugbears, from disaffected employees to muckraking journalists, will disappear. Besides, it's good P.R., and it allows corporate policy makers to feel good about themselves.

They're entitled to some self-esteem too.

These incentives give rise to preferences of mind-boggling complexity. Consider the "utilization chart" from a bid that came across my desk. It's for $9.5 million worth of work at a laboratory in Princeton, New Jersey. The categories can be sliced and diced indefinitely, creating a dazzling array of permutations. They may specify non-Dominican Caribbeans or non-Korean Asians, disabled people of various stripes, or inhabitants of selected neighborhoods.

The utilization rate for suppliers of "No. 1 Diesel And No. 4 Fuel Oils" adds up to 300 percent, a foot-note explains, because "incumbent supplier is a disadvantaged, women-owned, HUB-Zone small business." (A HUBZone small business is one in a "Historically Underutilized Business Zone.") Try competing with that!

I suppose it's not so different from the old days, when the incumbent supplier was apt to be the project manager's brother-in-law -- but it certainly isn't an improvement.

The old-time project manager wasn't forced to hire his brother-in-law, and he might even have had a chance of exercising some quality control over him. In this new, desperate rush to hire one-eyed Central Asians from south of the railroad tracks, price and quality necessarily weigh second at best.

My investigator congratulated me on passing his tests, apologized for their complexity, and shook my hand. My WOB documentation came through the next day. To my disappointment, it was not the fancy, frameable certificate dripping with ribbons and seals that I believed all my effort and angst -- not to mention my newfound oppressed status -- entitled me to, but just a faxed letter from the New York State Division of Human Rights.

Why'd We Wait?

It's still difficult for me to grasp just what is so hapless about us WOBs and MBEs that we merit entire taxpayer-funded bureaucracies to handhold us through the process of participating in the U.S. economy. According to the U.S. Census Bureau's 1997 Economic Census, the latest for which comprehensive data are available, both women-owned and minority-owned businesses are growing at a rate more than four times the national average. Between 1992 and 1997, the number of MBEs grew by 33 percent and the number of WOBs grew by 37 percent, while the total number of firms grew by only 7 percent.

In 1997 women owned 10.1 million American businesses (up from 6.4 million in 1992), or 46 percent (up from a third) of all domestic firms. They employed more than 18 million people (up from 13 million five years earlier), or one worker in seven, generating $2.3 trillion in revenues (up from $1.6 trillion). Similarly, revenues of the nation's 2.8 million minority-owned firms (up from 2.1 million in 1992) rose 60 percent, to $335.3 billion, while revenues for U.S. firms as a whole -- an aggregate that includes these high achievers -- increased by just 40 percent.

Growth rates during the previous five years were comparable, and nothing suggests that they have slowed down since. Clearly these sectors are dusting the rest of the economy. In fact, these stunning rates of expansion would be even greater if the Census Bureau hadn't decided in 1997 to change the way it defines MBEs and WOBs, omitting entire categories of firms that were previously counted. Publicly traded companies were dropped, along with firms whose successful, qualifying founder gave up equity to raise additional capital for growth.

It's impossible to say how much MBE-WOB growth is driven by "utilization goals" and set-asides. A contrary theory holds that old-fashioned prejudice, glass ceilings, and corporate inflexibility -- the nexus of oppression -- do more to stimulate minority and female entrepreneurship than all the set-asides combined. New business founders are preponderantly impatient refugees from the establishment.

Hopefully not too impatient. My certification trials were not yet over: I had yet to be named to the customer's "Approved M/WBE Vendor List," for which the state certification is only a prerequisite. To this end, the bank summoned me to an interview at its headquarters across town. I asked my assistant to call me a cab. "I'm taking a limo to Park Avenue," I told her, "to get us approved as oppressed persons." She rolled her eyes.

In the bank's burnished conference room I faced a photogenic board of equality facilitators that looked like a magazine ad for Your Friendly Utility Company: three men and three women, one from each of the currently approved minority groups. Big corporations maintain entire departments to monitor employee racial balance and vendor affirmative action compliance, so I wasn't surprised that the bank's don't-call-it-quotas crew reflected those ideals. But they already had all my information: the same financial statements, the same business and personal and bank and insurance references I'd submitted to the state.

So what was left for them to administrate but my attitude?

Which was sorely tried. I felt like a criminal waiting to be discovered. The whole setup bore an unfortunate resemblance to a parole board hearing.

I knew I was a fraud, participating in a charade for which Adam Smith should have ordered the whole lot of us taken out and shot. At the same time, I was taking lightly the principles that provided not only their livelihood but the justification for their existence. Trapped between my conscience and the wrath of scorned bureaucrats, my future appeared foreshortened.

Still, the first part of the meeting reduced me to a con-fused state of complacency. I'm used to competing for jobs, not being helped over the finish line and shown how to fill out payment requisitions. The nice people explained the advantages of being a WOB in such a way that it hardly seemed a boondoggle. After all, they told me, the contractor has to be able to perform the work; getting one's company on "approved vendor" lists is no different from any other form of marketing. Marketing, they explained, is the use of various methodologies to promote one's products or services. They paused for questions.

I'm familiar with the concept of marketing, I told them.

Oh yes, they said, recalling my hundred years in the sign business. They were amazed, they said, by the age of my company. The vast majority of WOBs and MBEs, they told me, are start-ups.

"You don't say," I said. Lulled by all the baby talk, I failed to see where this might be going.

Then came the stumper.

"Why didn't you do this before?" one of them asked me.

"Do what?" I asked, feeling the trap closing.

"You could have applied for this program nine years ago," she said -- rather menacingly, I thought. "Why did you wait until now?" Six expectant pairs of eyes, the whole Rainbow Inquisition, awaited my answer.

That's it, I thought. The jig is up. I'm busted. Trapped. The word will go out to all the banks, and I'll never get another bank job. Or a letter of credit. Or an ATM card. How will I explain this to Jimmy and the boys in the shop?

Then, revelation! I know what I'll do, I thought: I'll come clean. Tell the truth. Throw myself on their mercy. (They may like that.)

"In the past, I was philosophically opposed to it," I admitted carefully.

"And now?"

Gulp. "I consider that I was being naive."

My confession evidently satisfied them. It even invited their confidence: For the rest of the meeting they described their frustration at the shortage of applicants. Even they can see that this is a program where administrators outnumber clients. I promised to recommend some if I should think of any.

The Wonder of Womanship

In the end, the bank job was divided among six companies. (There's your 18 percent "utilization rate.") And as with any construction job, if we survived it and even got paid, we considered ourselves geniuses.

So far the principal benefit of my new WOB status is a clutch of complimentary subscriptions to minority- and woman-owned business magazines. Soft-core S&M for the affirmative action set, they feature photos of silver-haired old-boy executives grinning weakly while presenting excellence awards to entrepreneurs who wear their minority-hood and womanship like earned badges of honor.

But WOB isn't just about tangible benefits. It's so much more. I now feel a part of something larger than myself: the great chain of being that tumbles from the well-meaning, through the impractical, to the absurd -- replacing the dismal script of capitalism with a delightfully random set of entitlements and rewards.

April Frauds

info@reason.com (Tama Starr) — Sat, 01 May 1999 00:00:00 EDT

Expressions of spring silliness aren't limited to April Fool's Day, the traditional prankster's holiday that targets only the willing and the gullible. Three stupid celebrations of more recent vintage make suckers of the whole population.

Earth Day is a designer holiday crafted to dramatize the ascendancy of style over substance, a feel-good feast enabling sentimentalists to live out the ultimate power fantasy: patronizing an entire planet. Nobody has calculated the cost of Earth Day in terms of wasted resources, but during the nearly 30 years since its founding, this foolish fête has surely racked up billions.

Earth Day promises salvation through consumerism: If only we would buy the right stuff--electric cars, herbal remedies, hemp-fiber clothing, biodegradable detergent--the world would be drenched in virtue. It presumes that individual purchasing and packaging decisions trump the effects of volcanoes, earthquakes, tidal waves, tornadoes, ice ages, meteor storms, and solar flares.

Earth Day's hallmark is contempt for the poor, especially the working poor, for whom photo ops are low on the agenda, and for business people and workers in general. Only those who value consumption above production can so disdain the folks who create value.

Two years ago, New York's planet lovers celebrated Earth Day by closing off 10 midtown blocks of Park Avenue, headquarters of some of the country's largest corporations, for the apparent purpose of raising the consciousness of working people by preventing them from getting to work. Bemused office and delivery personnel stood by while green confetti was strewn about and Earth-friendly junk was hawked from kiosks, while politicians with bullhorns proclaimed their love for the Earth and disabled people tried in vain to gain access to their normal transportation. Two million brochures extolling the wonderfulness of Our Planet (printed on recycled paper, which everyone knows costs nothing to produce or clean up) were distributed in the streets and at bridges and tunnels (so that drivers entering the city could pause for a moment after paying their tolls to reflect on the bounty of nature before tossing the brochures out the window).

Soreheads who wondered why the event couldn't be held in a park, where some actual nature was available for contemplation and where Earth Day pollution wouldn't exacerbate the ordinary annoyances of city life, were reviled as planet-hostile. "I think everyone should be willing to give up a day's work to celebrate the Earth," bleated one professional city council member, apparently ignorant of her constituents who live on an hourly wage.

Another year, Earth Day was on a Sunday. My construction company had obtained a special permit for that day to lift a 10-ton steel superstructure onto a building. This work, which requires closing a lane for the operation of the crane, is allowed only on Sundays to minimize traffic disruption.

We'd rented the crane, hired the operating engineers and oilers, and arranged for a triple crew on double time to perform the lift and the welding. Besides these expenses, our contractual penalty for failure to complete on time would be $10,000 a day, or $70,000 a week. No one had told us that the street where we planned to work was among those selected for the privilege of being closed to celebrate the Environment.

At 7 p.m. on the evening before the lift, the traffic coordinator in the mayor's Office of Midtown Enforcement called me at home.

"We're revoking your permit," she said.

"Why?" I asked.

"It was issued in error," she said. "I'm sorry. We thought it had something to do with Earth Day."

I tried to argue. "Are you telling me that if I wanted to lift 10 tons of green balloons saying `Celebrate Earth Day!' which would get into the rivers and choke the fish, I'd be allowed to do it, but employing two dozen people to lift 10 tons of steel is not OK?"

"That's right."

"I'll hoist the balloons after I'm done with the steel," I offered. "I'll attach the balloons to the steel. I'll lift the balloons, and the balloons can lift the steel. This is ecological. It will utilize the Laws of Nature."

"Forget it."

"I'll paint the crane green!" I was getting desperate. "I'll paint the steel green and write pro-Earth messages on it. Why does it have to be balloons?"

Click.

Earth Day's anti-business bias is not surprising, considering its origins. John McConnell, a self-proclaimed founder of Earth Day (as with other successful institutions, there are rival paternity claims), wrote in his seminal statement of purpose, "Earth Magna Charta": "The long-term goal must be to restructure social institutions so that there is equitable return for services, efficient balance of supply and demand, and fair benefits from our mutual claims to Earth's natural bounty.... One possible way to equitable benefits is for those who own land, oil, gold or other minerals to pay a 2 percent royalty each year on their income from these resources to a fund that will then provide the homeless their inheritance or stake in their planet. All will then join in responsible care of Earth."

For McConnell, who at the age of 85 is still actively promoting Earth Day, the goal is nothing less than the complete reorganization of the world economy: "The digital economy will make it possible to eventually replace money and credit as we know it with new, fair methods of trade and exchange." Weirdly coinciding this year with anti-enterprise Earth Day is the seventh annual Take Your Daughter to Work Day, a promotion by Ms. magazine, which as a sideline this year helpfully offers $50 "grownup kits" and other paraphernalia to help get you started. This year's inspiring slogan: "The Future Is Me."

Unlike Earth Day, which is merely a crime against working people, this event is a crime against children. It teaches them that it's not what you make of yourself, how hard you work, what you know, or even whom you know that determines your success and professional satisfaction. It's the biological equipment you are born with.

Last year, I entertained a passel of girls whose parents brought them in to introduce them to the mysteries of the workplace. "Where are your brothers today?" I asked them.

"In school!" they chortled. "Only girls get to go to work with their moms and dads on Take Your Daughter to Work Day!"

"Boys have all the advantages," explained a poised 8-year-old, my factory landlord's daughter, calmly collecting my rent check and neatly writing out a receipt. "That's why I get to do this."

This real estate manager's daughter was luckier than many. It turns out that only certain kinds of labor qualify as "work." In 1996 one Michigan mother-daughter team found themselves in trouble when they spent the day doing spring cleaning. School officials balked at giving the teenager credit. "My work at home is my job," said the mother. "I'm taking care of my family. I wanted to show her what work was like at home."

Eventually the school relented. But it's clear that the ritual of spending a day in a parent's or other relative's workplace--a fine idea for both boys and girls--is designed to advance a political rather than an educational agenda.

Secretaries Day®, a promotion by the flower industry, offers (presumably male) bosses the opportunity to proclaim their endorsement of the new, employee-sensitive, "caring and sharing" workplace by bestowing traditional symbols of seduction --flowers, candy, and luncheon or dinner à deux--on female employees.

Something seems amiss here, and not only because the recommended romantic offerings also connote apology. It's as though the boss is acknowledging, one day a year, the underappreciated women who endure his temper tantrums, hangovers, and general boorishness while uncomplainingly performing his work so he can take the credit.

More to the point, changing workplace roles have made it unclear just who is entitled to the posies. Managers tap out their own inter-office memos, administrative assistants mutate into account executives, and information systems personnel and programmers are as likely to be male as female. In my office the men have taken to lampooning this holiday by sending flowers to one another (but not to the women) to avoid giving offense.

A day honoring office workers is a commendable notion. The pros who operate the switchboards, fax machines, and computers, and generally keep the wheels of commerce oiled, deserve recognition. But why not say it with a magazine subscription or a gift certificate from a bookstore, and leave the sexist overtures out of it?

The dates of all three manufactured celebrations are fungible, with different promoters declaring various days to be the "official" one. We should be grateful for the lack of central planning, but the unfortunate result is that all these holidays are exhibiting creepage. Secretaries Day®, formerly the third Wednesday in April, has mutated into Secretaries Week® (April 18-23), and Earth Day, due to some factional conflict between proponents of March 22 and champions of April 22, has been transformed into Earth Month.

Earth Month 2000, according to Earthday.org, McConnell's outfit, will boast 2 billion participants, or nearly a third of the world's population. With any luck, his economic redistribution plan will be well under way by then, enabling all the participants to purchase their allotment of Earth-friendly souvenirs.

The 7.63 Percent Solution

info@reason.com (Tama Starr) — Thu, 01 Feb 1996 00:00:00 EST

Sensitive, compassionate people--like you and me--appreciate the benevolent impulses underlying affirmative action. Less well known is the cost, in terms of money, time, and sheer brain damage, that putting this doc- trine into practice entails. As the employer of 87 skilled workers in three construction trades, plus support staff--who have always come in all colors, races, and genders without any help from me--I've experienced firsthand the excruciating reality of complying with affirmative action's bureaucratic edicts.

I submit for your disbelief an actual contract that my company undertook last summer. It is a typical contract that anyone in the construction trades would recognize. Accompany me on a journey through it. Your benevolence will never be the same again.

The job itself is straightforward: the fabrication and installation of a set of 15-foot-tall metal letters on the roof of a factory building. Doing the work is child's play compared with following the contract. The distinguishing features of the project are: a) the "progressive" character of the customer, a large publisher, and b) my city government's corporate welfare policy, which, by supporting the project with tax abatements and other subsidies, subjects it to the same equal-employment-opportunity requirements as a public project. Thus, four levels of affirmative action: corporate, city, state, and federal.

The main part of the contract, printed in normal-size type, is only two and a half pages long. It says, in essence, "You do the work, and we will pay you." Then there is a "Scope of Work," describing the work, and a set of drawings depicting the work. There is a set of "Special Conditions" containing provisions for force majeure, change orders, and warranties, and a discussion of the sales-tax exemption. There is a standard insurance certificate.

And then there is a 101-page "exhibit" consisting of 20 separate documents embodying the affirmative action requirements. Let's have a look at some highlights.

The first document is the oxymoronic "Affirmative Action/Non-Discrimination/MBE-WBE Requirement." It lists "participation goals" by trade. For example, carpenters on this job are expected to be 42.74 percent minority and 1.58 percent female. Iron workers, both ornamental and structural, are to be 58.53 percent minority and 7.63 percent female. There is no clue as to how those numbers were derived, but you can immediately see the value of a minority female iron worker. Don't think, however, if you are fortunate enough to have access to one, that you can circumvent the requirements by transferring her around, or by renting her to or from a competitor. The document sternly warns: "Compliance by [sic] the Contractor's specific affirmative action obligations required herein of minority and female employment and training must be substantially uniform throughout the length of this Trade Contract and in each trade. The transfer of minority or female employees or trainees from contractor to contractor or from project to project for the sole purpose of meeting the Subcontractor's goals shall be a violation of this Trade Contract."

We are a union shop, which means that we hire only from within the unions' respective labor pools. For their part, the unions maintain quality control, putting all the workers through apprenticeship and education programs. But they never promised (who would have thought to ask?) to provide painters who are 62.57 percent minority and 3.52 percent female, as required here. And, warns the document, "neither the provisions of any collective bargaining agreement, nor the failure by a union" to refer the correctly composed work force "shall excuse the Contractor's obligations hereunder."

So we are commanded to direct our recruitment efforts "to schools with minority and female students, to minority, female and community organizations, and to minority and female recruitment and training organizations," and to keep careful records of the disposition of minority and female job applicants who come in off the street. But we can't hire off the street. No matter. We are not only required to "meet with union officials to inform them of the policy" and to "bargain with respect to the inclusion of [the policy] in all union agreements," but also to report any noncooperation by any union to the proper authorities, failure to report being itself a misdemeanor. This will certainly do wonders for our relationship with the unions (who, in fairness, are feeling the heavy hand of these requirements at least as keenly as we are).

Next, the document lists 16 "specific affirmative actions" to be taken, the first of which is to "assign two or more women to each Phase of the construction project." Now here's a problem. One of the phases is structural installation, which entails landing big steel and welding it while perched on a scaffold 100 feet or more above the ground, sometimes in zero-degree weather. For some reason, I don't get a lot of female applicants for this position. So if you know of any women--preferably minority and, even better, disabled--who would enjoy this work, please send them on over!

I suppose I could halfway comply with this provision by assigning myself. But the female-assignment provision is accompanied by the statement that I will "ensure and maintain a working environment free of harassment, intimidation, and coercion." And with all these requirements, I don't feel free of harassment, intimidation, and coercion at all. But maybe I'm not supposed to. I'm the boss, so I'm not in a protected class.

The rest of the 16 points (two pages of very small print) describe, in exquisite detail, the special recruitment, monitoring, notification, review, and record-keeping procedures to be undertaken with respect to hiring and cultivating minority and female employees. Most noteworthy here is the invasion of their privacy. I am required to "encourage present minority and female employees to recruit other minority persons and women." What form is this "encouragement" supposed to take? "Hello, Ms. Wong, I see you are Asian. Got any sisters at home?"

My favorite paragraph in this document is what I call the "desperate" clause: "Goals for minorities and a separate single goal for women have been established. The Contractor, however, is required...to take affirmative action for all minority groups, both male and female, and all women, both minority and non-minority. Consequently the Contractor may be in violation hereof if a particular group is employed in a substantially desperate [sic] manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation hereof if a specific minority group of women is underutilized)." So even after I've desperately hired Ms. Wong's sister as a high-mast welder, I may still be in trouble if there aren't enough female Aleuts or Samoans on the team.

Part II of this document provides for "meaningful participation" by Minority Business Enterprises and Women-Owned Business Enterprises (MBE/WBE). What is "meaningful participation"? It is defined in bold type and underlined: " `Meaningful participation' shall mean that at least seventeen percent (17%) of the total dollar value of the construction contracts (including subcontracts) covering the Work are for the participation of Minority Business Enterprises and Women-Owned Business Enterprises, of which at least twelve percent (12%) are for the participation of Minority Business Enterprises and at least 5% [sic] are for the participation of Women-Owned Business Enterprises."

This section suggests interesting ideas for restructuring one's business, including forming joint ventures or partnerships with MBEs and WBEs, and "not requiring bonds from and/or providing bonds and insurance for MBEs and WBEs," even (or especially) where one is required to provide bonds and/or insurance oneself. Again, there are impeccably detailed record-keeping requirements, including, most notably, "the reason for such decision" when any of the required discussions with MBEs and WBEs fails to result in a joint venture, partnership, or subcontract.

Part III summarizes and incorporates by reference the Mayor's Executive Order #50, which emphasizes, among other things, that the contractor "will not discriminate...on the basis of...race, color, creed, national origin, sex, age, handicap, marital status, sexual orientation or affectional preference." (What, may one ask, is the distinction between "sexual orientation" and "affectional preference"? And does it matter, at least until the lawsuits come?) That is all very nice, but on the previous page, the contractor was required to discriminate, that is, to intervene positively, on the basis of race, sex, etc. Oh well.

This is not a trivial point. E.O. #50 provides for the Department of Labor Services to have access to all of your "books, records and accounts" to ascertain compliance. And the DLS can hurt you bad if you are not in compliance. It can not only void your contract, withhold payment for work you've already done, and "reduce the Contract payments by a percentage equal to that designated as the business enterprise goal percentage," but also physically enter your premises and "impose an employment program" (50.65B[iv]). But do not feel your rights are unprotected. The DLS can impose these sanctions only "after a hearing, held pursuant to the rules of the DLS."

The "employment program," by the way, may include sentencing your workers to "participation by minority, female and handicapped employees in career days, job fairs, youth motivation programs, and related activities in their communities." I'm sure they'll love that. But they've no choice. Among the crimes that can bring the wrath of the DLS down upon you is that your "minorities, women, handicapped, or older employees are excluded from or are not participating in company-sponsored activities or programs." (Emphasis added.) Your non-minorities, however, apparently can skip the company picnic with impunity.

The climax of the document is the contractor's agreement "to include the provisions of the foregoing paragraphs in every subcontract or purchase order to which it becomes a party...so that the provisions will be binding upon each Contractor or vendor." An interesting example of infinite recursion. The "foregoing paragraphs" include their own inclusion--so all subordinate contractors and vendors are required to include them in their subcontracts and purchase orders, ad infinitum. Clearly the intent is to infect the entire commercial community.

The dénouement is a promise to "refrain from entering into any contract...with a subcontractor who is not in compliance with the requirements of E.O. #50 and the rules and regulations promulgated thereunder." It's not clear how, exactly, one is supposed to know who is and who is not in compliance with the "requirements of E.O. #50" etc. Yet any failure to comply with any part of the agreement is a "material breach," subject to the punishments described above.

The second document in the exhibit is the customer's "EEO/ Payroll Package," which, we are informed, has helpfully "been prepared to assist each contractor/subcontractor in meeting all Equal Opportunity/Affirmative Action requirements for this project." Item I reiterates the 17 percent MBE/WBE goal and instructs the contractor on the proper, appropriately complex procedure for undertaking "documented efforts" to meet the goal. Item II, "Minority and Female Workforce Participation Goals," requires compliance with "the Federal goals for the construction industry" (included later) and reiterates the "participation goals" for the various construction trades. It is interesting to note that while operating engineers are required to be 46.52 percent minority and 9.26 female, cement masons, required to be 37.73 percent minority, have to be just 0.00 percent female. Is this a misprint? Who is protecting the oppressed female cement masons? Class action, anybody?

Item III reiterates the requirement for compliance with E.O. #50 and requires "attendance at all meetings requested by the monitoring agency, the Division of Labor Services." Items IV through VII delineate the differences in reporting requirements between contracts over and under $1 million and companies over and under 100 employees. When contracts and companies grow past a certain size, the reporting requirements increase exponentially. Even Forrest Gump (a Protected Person under the Americans with Disabilities Act) would recognize the importance of keeping all contracts under $1 million and all companies under 100 employees. "Smaller is better" apparently is now public policy.

Items VII through XVII (there are two Items VII) describe the forms, certificates, documents, reports, letters, and statements required to document compliance. Item XVIII, "Sexual Harassment Fact Sheet," says, "Each contractor must include this fact sheet in all subcontracts." Another virus: Each subcontractor must include it in all of his subcontracts and purchase orders, and require those subcontractors and vendors to include it in theirs. The fact sheet offers examples of sexual harassment that not even your most imaginative subcontractors can have thought of.

The next document is the Mayor's Executive Order #50 itself (29 pages of tiny, single-spaced type), so you can't claim you haven't seen it. Next is the city's required "Construction Employment Report" (seven pages), of which perhaps the most interesting part is a chart breaking down the work force "for each trade currently employed by your company" into various categories segregated by sex, including white (non-Hispanic), black (non-Hispanic), Hispanic, Asian, and Native American. These charts must be filled out for journey-level workers, apprentices, helpers, and trainees. In our case, we must fill out 12 charts, covering all four levels of workers in each of our three trades, and submit them monthly. The contractor must also attach to these reports "All Collective Bargaining Agreements, Employment Application [sic], EEO Policy Statement and your most recent EEO-1 Report." Somebody up there sure loves paper.

What puzzles me is why these charts are restricted to race and sex. Why don't they include religion, age, marital status, sexual orientation, affectional preference, etc.? How else can I prove my innocence? But I'm sure we'll get around to that. The precedents are there.

Next are the "Less Than One Hundred (100) Employees Certificate" and the "Less Than $1,000,000 Subcontract Certificate," each bearing a legend to the effect that any incorrect data "may result in criminal prosecution."

Then we have the "Boilerplate for Equal Employment Opportunity Statement," a resounding personal affirmation by the company's CEO (me!) stating that "we will take specific action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, creed, color, national origin, sex, age, disability, marital status, sexual orientation or citizenship status..." (clearly a lie, given the rest of the documents) and announcing that "[Name] has been appointed Director of our equal employment opportunity programs and will report directly to me on the results of such program [sic]." Interesting here is the implied admission of guilt. "[Name]'s responsibilities include...assisting in the identification of problem areas" and "assisting line management in arriving at solutions to problems." The possibility that there are no problems is assumed away.

A small but far-reaching statement: "To ensure adherence to this policy, performance evaluations for supervisory personnel shall include ratings on their equal employment opportunity efforts and results." Some companies actually take this seriously. "Sorry, Sally. Your team invented a better mousetrap and added $15 million to our bottom line. But they were the wrong color, so it doesn't count."

"Additionally," the boilerplate section continues, "in furtherance of our equal employment opportunity commitment [Contractor name] shall insist [emphasis added] that labor unions and other recruiting sources actively recruit and refer members of all protected groups for all positions, incorporate non-discriminatory provisions in all its contracts and purchase orders [yet another virus] and include the EEO logo, slogan or statement in all solicitations or advertisements for employees."

How, I wonder, is my insistence to be measured? Is it worth a dollar an hour for all employees? Ten dollars an hour? Because in labor negotiations, every insistence has a price.

The next document is the "Contractor's Affirmative Action Plan," containing a chart called "Summary of Bid Activity with MBE and WBE Subcontractors/Vendors" that requires a listing of "all unsuccessful M/WBE subcontractors/vendors" by name, trade/item, date and amount of bid, date of elimination, and reason for elimination. Below the chart, above the notary seal, is a space for "Additional explanation of elimination: Include meetings held for negotiation, etc. (Use additional sheet if necessary)." I can easily imagine that any of the ordinary reasons for turning down a vendor or subcontractor--bad reputation, inability to perform work, criminality--might be considered to have a racist component and thereby seal one's doom.

Then comes the "Contractor/Subcontractor Affirmative Action Commitment," requiring the contractor to swear fealty once again by initialing various affirmations, and the weekly "Wage Requirement Letter," including space for each worker's name, address, Social Security number, race, sex, work classification, hours worked, rate of pay, deductions, and net wages. Interesting, again, how much privacy the workers give up for the privilege of participation in this brave new nondiscriminatory world. The document also contains a separately signed affirmation that "Contractor/Subcontractor certifies compliance with all Federal, State and Local EEO Requirements" (as if one could possibly understand what they are) and a warning that "the wilful [sic] falsification of any of the above statements may subject the contractor or subcontractor to civil or criminal prosecution see section 1001 [sic] of Title 18 and Section 231 of Title 31 of the United States Code." This part is in teeny-tiny print and very difficult to read.

The next five pages, apparently handwritten by a diligent sixth-grader, are instructions on "How to Complete the Payroll Forms." They offer many helpful hints. Under "work classification," for example, they say, "Fill in the classification exactly as it appears on the determination. If classification is for a power equipment operator, indicate type, size, horsepower." But they do not ask for the color of the horse.

The next document, "Workforce Projection," is important because it offers a rescue for those contractors whose race and sex composition is below par. It allows you to anticipate compliance by listing, for each job category (brick masons, equipment operators, etc.) your "Current Employees to be Assigned to Contract," both "None-Minority [sic]" (male and female) and "Minority" (male and female), and the "Projected New Hires" in these categories that will bring you into compliance. The document ends, "The contractor acknowledges that, to the extent that this workforce projection does not reflect anticipated achievement of the goals for minority and female employment contained in the contract for work on this project, it will work closely with the general contractor and resourse [sic] and referral sources to identify, consider, and employ qualified individuals whose participation will enable the contractor to achieve the goals." What a break.

Next is Form OC-257, the "Monthly Employment Utilization Report," which lists, for all trades and classifications, by "Work Hours of Employment (Federal & Non-Federal)," total employees (male and female), non-Hispanic blacks (male and female), Hispanics (male and female), Asians/Pacific Islanders (male and female), and American Indians/Alaskan Natives (male and female). It also breaks the total number of minorities down by sex and indicates percentages for total minorities, total females, and total female minorities. You won't have failed to notice--especially if you are the person filling out the forms--that these classifications are different from the ones required above. This report must be submitted monthly, and, needless to say, any inaccuracy constitutes a crime.

For those whose skills at statistical analysis may be sub-par, help is available. See Mayor's Executive Order #50: "The statistical criteria for evaluating the composition of the contractor's workforce will be the following: (i) the term `underutilization' means a statistically significant disparity between the employment of members of a racial, ethnic, or sexual group and their availability as determined by the Bureau utilization analysis; and (ii) the term `utilization analysis' will mean an analysis of the contractor's workforce using standard statistical techniques to test a null hypothesis that utilization of a given protected group is within acceptable limits, given its availability. For the purpose of these regulations, the null hypothesis will be rejected (i.e., underutilization will be assumed) whenever there is reason to believe that the utilization rate is below the availability rate at the 80% level of significance." Got it? Good.

Next are a "Sample Letter" requesting Apprentice Certificates for personnel meeting the approved race/gender tests, a helpful list of "Recruitment Sources for Minority/Female Construction Workers," and the "Sexual Harassment Fact Sheet," which goes to considerable lengths to expand the definition of sexual harassment beyond the "most widely recognized pattern...in which a male supervisor sexually harasses a female employee."

The last document in the package is 26 pages of tiny print in two columns: Part 60-3 of the Office of Federal Contract Compliance Programs, the federal "Uniform Guidelines on Employee Selection Procedures." There are discrepancies between it and E.O. #50 and the other documents, but what can you do? You are a contractor with a work force to support, and you want the job. So you close your eyes and hope for the best.

The burden of all these requirements is a heavy one. I had to send my new Director of EEO Compliance (formerly the payroll manager) to school in New Jersey for two days to learn how to fill out the reports for this contract. The paperwork required to comply with the contract nearly outweighs the steel. Furthermore, the presumption of racial and sexual villainy criminalizes everybody and invites litigation--besides making us the laughingstock of the world.

I discussed this phenomenon with the Dallas-based CEO of another company in my industry that is four times the size of mine. He said, "Good companies run away! You won't see me bidding on any kind of government or government-subsidized work." So the government will get what it wants: contractors whose race/gender composition meets government goals, while taxpayers, as usual, foot the bill: in increased costs, in substandard work, and in the payroll of the genetically approved bureaucrats who scrutinize the reports.

It is not enough to repudiate affirmative action at the polls. It has become an ideology, embodied in layers of case law, executive orders, and consent decrees, as well as in the corporate culture of our largest employers and customers. But let us not despair. If we accept these conditions as facts of life, we have the opportunity for a happy solution.

The problem, especially for smaller companies that don't have millions of employees, is that while the goals are exact, the means of meeting them are crude. How do you really know that your electricians are 33.99 percent minority and 1.84 percent female, as required? The loss of one worker of the approved hue may necessitate firing another of a different hue to maintain the desired balance. This is unfair. But genetic analysis can solve the problem.

Hardly any Americans today are racially pure. Up to 95 percent of those checking certain categories on the census form could just as well check "multiracial" if that were an option. In the 204 years since the first U.S. census, we have used at least 26 racial categories because we couldn't decide what they are; currently, such groups as Arab Americans and Azorians (Afro-Portuguese) are lobbying for their own classifications. Advances in biotechnology should enable us to end the confusion. We can investigate the DNA of all job applicants and candidates for promotion, isolate racial markers, and, by means of simple, weight-averaged mathematics (per E.O. #50), identify the workers whose characteristics we require.

From there, it is only a small step to the genetic engineering that will enable us to create the sociobiologically desirable work force of the future. Want a female operating engineer who is one-third Caucasian, one-twelfth Pacific Islander, one-quarter Hispanic, one-sixth Asian, and one-sixth African-American? No problem! This will require making projections 20 years or so in advance, but isn't that economic planning at its best? I can foresee platoons of forepersons, journeyfolk, and apprentices, all genetically predisposed to their assigned occupations and trades, and all of the exact racial, ethnic, and even hormonal mix that nondiscrimination requires. What a beautiful, inspirational, glorious rainbow it will be. I can hardly wait. Can you?

Reactionary Feminism

info@reason.com (Tama Starr) — Sat, 01 Oct 1994 00:00:00 EDT

Who Stole Feminism?: How Women Have Betrayed Women, by Christina Hoff Sommers, New York: Simon & Schuster, 320 pages, $23.00

Ten years late, but we're nearly there. War is Peace. Freedom is Slavery. "Objective reality" is an invidious myth employed by evil oppressors (men) to maintain their phallohegemonic dominance. Big Sister Is Watching for instances of heteropatriarchal discourse, and punishment is swift and severe. A futuristic nightmare? No, the all-too-real world of your high school, university, newsroom, and administrative agency--and coming soon to a workplace near you.

In Who Stole Feminism?: How Women Have Betrayed Women, Christina Hoff Sommers, associate professor of philosophy at Clark University, describes the appropriation of the movement once known as feminism by a cadre of party-line bureaucrats promoting an agenda of victimism and victimology-based revolution, with serious implications for the wider world.

Sommers draws a clear distinction between "equity feminism," the classical-liberal position characterized by the unobjectionable slogan, "Equal pay for equal work," and "gender feminism," the aggressive self-pitying whine of an army of professional victims that has come to dominate discussions of women's issues. Ideological correctness, the suppression of dissent, and salvation through thought control and governmental fiat are the new orders of the day.

Sommers traces classical-liberal equity feminism to the Seneca Falls convention of 1848. The organizers of Seneca Falls recognized their privileged position as educated members of a middle-class elite, and they placed their prestige and experience in the abolitionist movement at the service of the genuinely disadvantaged. It may be hard to remember today that throughout most of history women were essentially the property of their fathers and husbands, and in many places in the world today, still are. Too many of the world's women remain oppressed--except in the places where feminists are doing the most complaining.

American women outlive their male counterparts by nearly 10 years, control more than half the national wealth, and make up the majority of undergraduate students, law students, and voters. Skeptics are starting to question whether this is a group genuinely entitled to victim status. Never has such a privileged circle been represented by such an array of pedants claiming that a war is being waged against them, or has so cowed the media and the government into abandoning all standards of objectivity. It is an irony almost too delicious to contemplate: How did one of the most privileged sets of people in the history of the world, in terms of wealth, education, and political power, come to be represented by its self-appointed spokespersons and their media minions as a passel of cringing victims in need of special protection by an all-wise government?

Sommers analyzes the philosophical underpinnings of the victimology-feminist movement, first visiting the universities, where lockstep conformity is enforced in the name of "diversity" and "inclusiveness." She discusses the ideological litmus tests that determine career advancement, chronicles the "redefinition of knowledge" that aims to eliminate such male biases as the illusion of excellence, and describes the way in which education has been placed in the service of politics and politically biased group therapy. She shows how, with the backing of government agencies, history texts are being rewritten to accommodate feminist sensitivities, and science and mathematics redefined, with "logic and rationality [derided as] `phallocentric.'" This is not a small revolution. The curriculum transformation movement, she points out, "has quietly become a potent force affecting the American classroom at every level, from the primary grades to graduate school."

This is the kind of book that entertains while it horrifies. Sommers is at her most devastating when she attacks the pseudo-statistics victimology feminists employ to buttress their claims. She exposes a number of influential hoaxes, meticulously tracking the way they have been mindlessly repeated by the media until they have come to seem part of received wisdom. These include the Super Bowl canard holding that wife beating increases 40 percent during the game (utterly baseless, but TV stations ran ads urging men to remain calm); the fantastic statistic that 150,000 American women die each year from anorexia (more than three times the annual number of automobile fatalities for the entire population?); and a supposed March of Dimes study proving that wife abuse is responsible for more birth defects than all other causes combined (there was no such study). She also discusses the inflated statistics and flawed or imaginary data employed by rape-crisis advocates, self-esteem promoters, and gender-equity bureaucrats to advance their self- perpetuating agenda. No reader of this book will ever again consume a scare statistic on any subject without a large dose of salt.

The solution to all the phallogeneric terror, of course, is increased governmental regulation; and it is worth noting, as Sommers does, that the studies on which the new spate of regulations is based are done by the same advocacy groups and individuals whose fanciful statistics feed the alarmist news stories. Is this the result of a conscious conspiracy? Probably not. Gender feminism, as Sommers points out, is now an industry, with generous research funding, grant money, and careers available to those who propose to root out ever more arcane instances of oppression. There is only one pool of approved "experts" in the field, since any questioning of the approved orthodoxy is labeled sexism, "backlash," or delusion. It isn't strange that the "experts" should seek to protect their turf.

Sommers's meticulous research and judicious tone should protect her from accusations of sensationalism. But they do not. As a consequence of her sanity, Sommers has been subject to the worst sort of ad feminam attacks, both in the media (most notoriously, in the relentlessly politically correct New York Times, whose Book Review editors assigned her book to one of the doctrinairians whose antics she exposes) and at what pass for academic feminist conferences. But Sommers is not alone in her critique of gynocentric feminism. She quotes such skeptics as Iris Murdoch, Doris Lessing, Cynthia Ozick, and Camille Paglia, and accurately points out that most people are on the side of common sense.

In late 1993, Ms. magazine devoted nearly an entire issue to a hand-wringing debate over why so many women refuse to identify themselves as "feminists" despite the fact that paleofeminist issues such as equal pay and respect both at home and in the workplace are part of the fabric of their daily lives. The answers delivered by the panel of pundits ranged from the "backlash" bugaboo to lesbiphobia to the alleged takeover of the media by the Christian Far Right.

The real answer, however, is that most people shun the ideology of oppression, viewing it as a philosophy for losers. A frequently heard criticism of party-line feminism from its inception was that it failed to address mainstream women's needs, patronizing those who made child-rearing a career and ignoring, if not denigrating, those who chose traditionally female professions such as nursing, school teaching, and secretarial work. As for those who went so far as to trade on their femininity, such as cocktail waitresses, exotic dancers, and prostitutes: Off to the reeducation camp! But unfortunately we can't all be aircraft mechanics.

Sommers's subtitle embodies a neat argument. Misandry invariably leads to misogyny, since women who fail to adhere to the party line must be collaborationists. In the fashionable Foucaultian model, they have internalized the oppressor. So women who belong to Weight Watchers or the Catholic church or the Republican Party or any other identified institution of male oppression do not know their own minds: They have been colonized by the patriarchy and must be helped, by their self-identified liberators, to exorcise the demons within.

For all their progressivist cant, gynocentric feminists are profoundly "regressive" (Cynthia Ozick's word). Like some 19th-century romantics, they embrace a vision of womanhood as the embodiment of finer sensibilities, closer to the state of angels than to men. Sexuality itself is a male-constructed force utilized to terrorize women, as is being carefully taught today to children as young as kindergartners by professional "gender monitors." Sommers's examples of feminist testimonies of personal outrage in the face of male "discourse" (catcalls, jokes, and even classical and abstract art) tend inevitably--and hilariously--toward a description of the attack of paralysis once known as "the vapors." Demands for special protections for women in excess of those afforded the coarse creatures known as men follow logically--if logic is still an acceptable invocation. Completing the circle, the gender feminist redefinition of knowledge to eliminate phallohegemonic verticalism and embrace "female ways of knowing" confirms the male chauvinist suspicion that women think with their chests, not their heads.

If gender feminists are reactionaries, where does that place equity feminists such as pioneers Elizabeth Cady Stanton ("We ask no better laws than those you have made for yourselves"), Mary Wollstonecraft ("I wish to persuade women to endeavor to acquire strength, both of mind and body"), Maria Edgeworth ("Power is the law of man; make it yours"), and Sommers herself ("I have been moved to write this book because I am a feminist who does not like what feminism has become")? Is the debate between conservatives ("First Wave" feminists, in Sommers's phrase) and exponents of the Dark Ages, with their authoritarianism, separatism, and witch hunts? Oddly, both sides claim, with some justification, the rubric "New": equity feminists seeking to reclaim the movement from the radical fringe, as in a recent Boston Globe story ("New Breed of Feminist Challenges Old Guard," May 29, 1994); and radicals, who see the Enlightenment principles that informed the original struggle as just more old-hat patriarchalism, the dangerous doctrine of individuality.

Perhaps the confusion of language reflects confusion of object. Democratic liberalism--real tolerance for differing views--can survive only in an atmosphere of civility and responsibility. The feel-good notion that all opinions are equally valid, the liberal bias against "making judgments," invites totalitarian takeover. It is not clear that this direction can be reversed, as Sommers wishes. One is hard-pressed to think of many historical examples of successful, liberal-based revolutionary movements that, once taken over by radicals, have been recaptured by the tolerant. The latter generally lack the rage, the "fighting madness" (as Eleanor Smeal, the former president of NOW, puts it), that infuses ideological warriors. Liberal feminism was taken over by radicals because of its failure to condemn illiberals, the moderates not realizing that, as in most revolutions, they would be the first to be shot. It isn't news that all revolutions devour their own.

So the answer to the question in the book's title is, nobody stole feminism. The liberals gave it away. Their abdication of principles and cowardly fear of reprisals so ably chronicled by Sommers sealed the deal. What one wonders is, Why does she want it back?

While her arguments are engaging and her focus admirable, the implications of the Kafkaesque reality she delineates are even larger than she acknowledges. It is more important to save civilization as a whole from the predations of enforced political correctness than to save only feminism. The threat to freedom is larger than the threat to a movement that affects all of the people only some of the time. The goals of Seneca Falls have largely been accomplished, at least here, and additional progress is being made daily. The low level of acceptance of victimology feminism means that like other pointless intellectual fads, it too will pass.

But the effects of this brand of poison are long lasting. "For some time to come," writes Sommers, "the gender monitors will still be there--in the schools, in the feminist centers, in the workplace--but, increasingly, their intrusions will not be welcome." Unwelcome, perhaps, but the laws and their bureaucratic enforcers, the redefinition of knowledge in favor of political interests, and the precedents they set will remain. And everybody, from taxi dancers to aircraft mechanics, will have to pay for it.

Regulation: A Reasonable Woman

info@reason.com (Tama Starr) — Tue, 01 Feb 1994 00:00:00 EST

Dear Comrade [according to The Bias-Free Word Finder: Dictionary of Nondiscriminatory Language, the word fellow is no longer acceptable] Small-Business Owner:

The old Russian proverb, "A woman is not a person as a chicken is not a bird," is now enshrined in civil-rights law. Although the U.S. Supreme Court's recent unanimous decision in Harris v. Forklift, which lowered the standard of proof in sexual-harassment cases, did not specifically address it, the "reasonable woman" standard is snaking its way through our courts, legislatures, and administrative agencies.

A 1991 ruling by the U.S. Court of Appeals for the Ninth Circuit, Ellison v. Brady, held that determination of whether behavior or speech constitutes sexual harassment should be based on how a "reasonable woman" would perceive it. Previously the standard had been a "reasonable person." A federal district court in Florida immediately adopted the "reasonable woman" standard; it is now being applied in New York by the city's Commission on Human Rights and in a host of other jurisdictions. Stephen Bokat, vice president and general counsel of the U.S. Chamber of Commerce, predicts that the "reasonable woman" standard will eventually be applied nationwide.

Failure to understand and comply with the "reasonable woman" standard may cause you to kiss (excuse the expression) your business goodbye. Under the 1991 Civil Rights Act, penalties for sexual harassment in the workplace include punitive damages of up to $300,000 per incident (a ceiling Sen. Ted Kennedy, the great defender of womanhood, has vowed to raise to $1 million). This penalty applies if any of your employees brings a complaint against you or a co-worker--or against any of your suppliers, customers, or consultants; your lawyers, accountants, or union representatives; your insurance brokers, artists, or engineers; visiting photographers or journalists; building inspectors, sanitation workers, police or fire offi-cials; bystanders at your job sites; or the homeless who scavenge your trash for re-cyclables. Under EEOC guidelines on employer accountability, you are now liable for the conscious and unconscious behavior of each of these individuals to the degree it may affect the sensitive psychological environment in your workplace.

You will recall that the standard for the successful prosecution of a harassment complaint is the victim's perception of having been subjected to hostile or unfriendly speech, behavior, or attitudes anywhere within our purview or that of our forepersons and supervisors. As Justice Sandra Day O'Connor wrote in Harris v. Forklift: "So long as the environ-ment...is perceived as hostile or abusive, there is no need for it also to be psychologically injurious." Not that this opinion was itself without controversy. Though women's legal groups unanimously praised the ruling, a number of them had filed briefs arguing that sexual-harassment complainants should not be required to show that the conduct that offended them would also offend either a "reasonable person" or a "reasonable woman." So we have not heard the end of the argument against reasonableness per se.

But so far, the concept of reasonableness remains in place, and we must scrutinize the entrails of these standards so that, through profounder comprehension, we may formulate correct policy and emerge blameproof. What, we may wonder, is the exact difference between a "reasonable woman" and a "reasonable person"? Understanding this distinction may be the key to our survival.

Transcending the vexing question of whether a woman is or is not a person, let us cut to the heart of the matter and ask whether there is or can be such a creature as a "reasonable woman," or whether indeed there should be. Is not the very concept of reasonableness a patriarchal conceit? Does it not represent the hierarchical imposition of left-brain values, an exaltation of the emotionally disordered male "logic" that has created warfare, rapism, poverty, disease, and immeasurable pain and suffering throughout history? As a woman, I take offense at the imputation of "reasonableness." Perhaps I should sue.

Until I make new law establishing my personal criteria of unreasonableism, business owners have to grapple with the question of what the courts might have had in their brains when they established the "reasonable woman" standard. Since the only characteristic that absolute- ly distinguishes a woman from a gender-less "person" is the fact of her sex, we have to infer that a woman's reasonableness is fused to her physiology. So the onset of female puberty must be the indicator of reasonableness. Shall we conclude, then, that business owners should formulate their human-resource policies according to the needs and perceptions of 12-year-old girls? (Having once been a 12-year-old girl, I must say that might not be such a bad idea.)

Or do women achieve their "reasonableness" at the other end of the sexual maturity cycle, the climacteric? Reasonableness would then require that all workplace thermostats be set at 52 (or the average age of those present). Overheated rooms are definitely a form of harassment.

Or is the menstrual cycle itself the signifier of female reasonableness? Do our courts and legislators intend that businesses be run on a lunar cycle, with preordained times for mass edema, irritability, and ovulation? At the appropriate points in the cycle, the company could issue its sales figures, engage in disputes, or announce a merger or spinoff. (Infusions of estrogen into the water cooler should solve the nonconformity problem.)

What other solutions might there be to the predicament we find ourselves in? One answer would be simply not to hire women, who are a hundred times more likely than men to bring sexual-harassment suits. While that may be the unintended consequence, or even the hidden intention, of the new codes, many of us would find that response unacceptable.

Another solution might be to require all employees, suppliers, customers, and service providers to submit all proposed remarks in writing for before-utterance preview (BUP). A special department would be instituted in every company to process these "utterance requests" (U.R.s), thus alleviating unemployment. Unfortunately, this system would not solve the problem of offensive gestures, looks, attitudes, etc., which are also covered by the codes.

Technology offers the most practical answer. A universal computer network, with every operator in an individual air-conditioned cell, would not only achieve the desirable end of physically separating the sexes, it would isolate all potential harassers (everybody) from all potential victims (everybody else). While this system would also accelerate the decline of our cities and cost hundreds of billions of dollars, it would be worth it. In a world where, according to American Management Association guidelines, "unreasonable conduct" includes "condescension... [and] exclusion (overlooking or denying someone access to places, people, or information)," and "unwelcome behavior" is defined as any "conduct that the employee did not solicit or incite and that the employee regards as undesirable" ("Hate your necktie!"), the punitive potential against maintainers of "abusive working environments" is vast. The network I envision would be programmed to automatically screen out all potentially offensive language, behavior, and thought. Eventually it will be possible for communication to take place without any human intervention at all.