Legal Perspectives on Sexual Harassment Research Paper

1. Definitions And Origins

In the United States, harassment is predominantly defined in terms of unwanted sexual advances. In the eyes of the public and the law, the quintessential case of harassment involves a powerful male supervisor who makes sexual advances toward a female subordinate. Harassment is an abuse of sexuality; it connotes men using their workplace power to satisfy their sexual needs.

This sexual model of harassment was forged in early Title VII law. Some of the earliest cases were brought by women who had been fired for refusing their bosses’ sexual advances. Lower courts at first rejected these claims, reasoning that the women had been fired because of their refusal to have affairs with their supervisors and not ‘because of [their] sex’ within the meaning of the law. The appellate courts reversed; they held employers responsible for the bosses’ conducts as a form of sex discrimination now called quid pro quo harassment.

The results were a step forward: It was crucial for the courts to acknowledge that sexual advances can be used as a tool of sex discrimination. But the reasoning spelled trouble, because the courts’ logic equated the two. The courts said the harassment was based on sex under Title VII because the advances were driven by a sexual attraction that the male supervisor felt for a woman but would not have felt for a man. By locating the sex bias in the sexual attraction presumed to underline the supervisor’s advances, these decisions singled out (hetero) sexual desire as the sine qua non of harassment. Had the supervisor demoted the plaintiff or denigrated her intelligence, the court would have had far more difficulty concluding that the conduct was a form of sexism prescribed by law.

Even at the time, there were broader frameworks for understanding women’s experiences as sex harassment. Carroll Brodsky’s book, The Harassed Worker (1976), for example, articulated a comprehensive nonsexual definition of harassment as ‘treatment that persistently provokes, pressures, frightens, intimidates, or otherwise discomforts another person.’ Rather than a form of sexual exploitation, Brodsky saw harassment as ‘a mechanism for achieving exclusion and protection of privilege in situations where there are no formal mechanisms available.’ (Brodsky 1976, p. 4). In his usage, ‘sexual harassment’ referred not simply to sexual advances, but to all uses of sexuality as a way of tormenting those who felt ‘discomfort about discussing sex or relating sexually.’ (Brodsky 1976, p. 28). A few Title VII decisions had already recognized sexual taunting and ridicule as a mechanism for male supervisors and co-workers to drive women away from higher-paying jobs and fields reserved for men. Indeed, the very concept of harassment as a form of discrimination in the terms and conditions of employment was first invented in race discrimination cases, where judges had discovered that employers could achieve racial segregation not only through formal employment decisions such as hiring and firing, but also through informal, everyday interactions that create an atmosphere of racial inferiority in which it is more difficult for people of color to work.

Analogizing to the race cases, the courts might have likened bosses’ demands for sexual favors from women to other discriminatory supervisory demands—such as requiring black women to perform heavy cleaning that is not part of their job description in order to keep them in their place, or requiring women to wear gendered forms of dress or to perform stereotypically feminine duties not considered part of the job when men do it. Or judges might have located the sexism in a male boss’s exercise of the paternalist prerogative to punish as an employee someone, who dares to step out of her place, as a woman by refusing the boss sexual favors; sociological analysis reveals that male bosses have penalized female employees for other non-sexual infractions that represent gender insubordination rather than job incompetence (Crull 1987).

But the courts relied instead on a sexualized frame-work put forward by some feminist lawyers and activists. Toward the mid-1970s, US cultural-radical feminists moved toward a simplistic view of heterosexuality as the lynchpin of women’s oppression (Willis 1992, p. 144). Given this ideological commitment, it is not surprising that these early feminists conceived of women’s workplace harassment as a form of unwanted sexual advances analogous to rape. Lin Farley’s book, Sexual Shakedown, defined harassment as ‘staring at, commenting upon, or touching a woman’s body; requests for acquiescence in sexual behavior; repeated nonreciprocated propositions for dates; demands for sexual intercourse; and rape.’ (Farley 1978, p. 15). A few years later, Catharine MacKinnon argued that harassment is discriminatory precisely because it is sexual in nature—and because heterosexual sexual relations are the primary mechanism through which male dominance and female subordination are maintained (MacKinnon 1979).

In the US, less than a decade later, the consolidation of this narrow view of women’s workplace harassment was largely complete. The 1980 Equal Employment Opportunity Commission (EEOC) guidelines defined sex harassment as ‘unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature’—a definition courts have read to require overtly sexual conduct for purposes of proving both quid pro quo harassment (which involves conditioning employment opportunities on submission to sexual advances) and hostile work environment harassment (which involves creating an intimidating or hostile work environment based on sex). Indeed, in hostile environment cases, the lower courts have tended to exonerate even serious sexist misconduct if it does not resemble a sexual advance (Schultz 1998).

Media coverage has infused this view of harassment into popular culture. The 1991 Anita Hill-Clarence Thomas controversy helped solidify the view of harassment as sexual predation. Hill, at the time a novice lawyer in her mid-twenties, claimed that Thomas, her then-supervisor at the Department of Education and later Chair of the EEOC, had pressured her to go out with him and regaled her with lewd accounts of pornographic films and his own sexual prowess (Mayer and Abramson 1994). Soon afterward, the news media broke the story of Tailhook, in which drunken Navy pilots sexually assaulted scores of women at a raucous convention (Lancaster 1991). Later in the 1990s, public attention turned to the harassment lawsuit of a former Arkansas state employee, Paula Jones, who alleged that President Bill Clinton had made crude sexual advances towards her while he was the Governor of Arkansas.

Organizations seeking to avoid legal liability for sexual harassment have also defined it in terms of overtly sexual conduct. Many employers have adopted sexual harassment policies, but Schultz’s research reveals that these policies are rarely if ever integrated into broader anti-discrimination programs. Indeed, some employers’ efforts to avert sexual harassment may undermine their own efforts to integrate women fully into the workplace, as firms adopt segregationist strategies designed to limit sexual contact between men and women (such as prohibiting men and women from traveling together). Such policies reinforce perceptions of women as sexual objects and deprive them of the equal training and opportunity the law was meant to guarantee.

2. Current Challenges

In recent years, the prevailing understanding of sexual harassment has come under challenge in the US. Civil libertarians have voiced concern that imposing vicarious liability on employers for their employees’ sexual harassment gives employers a powerful incentive to curb workers’ freedom of speech and sexual expression in the workplace. Critics say harassment law incorporates vague standards—including the requirement that the hostile work environment harassment be ‘sufficiently severe and pervasive to alter the conditions of the victim’s employment and create an abusive working environment’—(Meritor Savings Bank vs. Vinson, p. 67)—that permit employers to adopt broad policies that chill sexual speech (Strossen 1995, Volokh 1992). Many employers may not limit their policies to ‘unwelcome’ conduct, because they will want to avoid costly, contentious inquiries into whether particular sexual interactions were unwelcome. Because few employers have a stake in protecting their employees’ freedom of expression (and only government employers have any First Amendment obligation to do so), many firms may simply adopt broad, across-the-board proscriptions on sexual activity and talk on the part of employees (Rosen 1998, Hager 1998). Although there has been no systematic research in this area, some alarming incidents have been reported. (Schuldt 1997), (Grimsley 1996, p. A1).

Such concerns have resonated with a new generation of feminist legal scholars, who have begun to worry about the extent to which equating workplace sexual interaction with sex discrimination replicates neo- Victorian stereotypes of women’s sexual sensibilities (Abrams 1998, Franke 1997, Strossen 1995). While civil libertarians have urged repealing or restricting the range of employer liability under Title VII—often, proposing instead to hold individual harassers responsible for their own sexual misconduct under common law (Hager 1998, Rosen 1998), younger feminist scholars have focused on reforming sex harassment law to bring it in line with traditional anti- discrimination goals. Kathryn Abrams defines harassment as sex discrimination not because (hetero) sexual relations inherently subordinate women, but because she believes male workers use sexual advances to preserve masculine control and norms in the workplace; she would limit liability to cases in which the harasser manifestly disregards the victim’s objections or ambivalence toward his advances (Abrams 1998). Katherine Franke argues that harassment is a ‘technology of sexism’ through which men police the boundaries of gender; she would focus on whether men have used sexuality to press women or other men into conventional ‘feminine’ or ‘masculine’ roles (Franke 1997). Both Abrams and Franke attempt to break with the old equation of sexuality and sexism. Yet neither makes a decisive break, for each retains the idea that (hetero) sexual objectification is the key producer of gender (for Abrams, of gender subordination in the workplace, for Franke, of gender performance throughout social life).

Bolder analyses seek to jettison altogether sexual harassment’s conceptual underpinnings in sexuality. Janet Halley’s queer theory-based critique emphasizes both the cultural psychic dangers of outlawing the expression of sexuality and the heavier-handed repression such an approach places on sexual minorities. To the extent that harassment law focuses on whether sexual conduct is offensive to a reasonable person, judges and juries will rely on their ‘common sense’ to evaluate the advances—and other actions—of gays, lesbians, bisexuals, and other sexual dissidents as inherently more offensive than those of heterosexuals (Halley 2000). As Kenji Yoshino has observed, the courts have conditioned liability in same-sex sexual harassment cases on the harasser’s sexual orientation. Conduct that courts consider an unwanted sexual advance when the harasser is homosexual is deemed innocuous horseplay when the harasser is heterosexual—an approach that sets up a two-tiered system of justice that has nothing to do with the victim’s injury (Yoshino 2000).

For related reasons, Schultz has argued that sex harassment law should abandon its emphasis on sexual misconduct and focus on gender-based exclusion from work’s privileges. She argues for reconceptualizing harassment as a means of preserving the masculine composition and character of highly-valued types of work and work competence (Schultz 1998). In Schultz’s view, the prevailing sexual understanding of harassment is too narrow, because it neglects more common, non-sexual forms of gender-based mistreatment and discrimination that keep women in their place and prevent them from occupying the same heights of pay, prestige, and authority as men. Indeed, Schultz contends, the centrality of occupational identity to mainstream manhood leads some men to harass other men they regard as unsuitably masculine for the job. At the same time, sexual model risks repression of workers’ sexual talk or interaction—even where they do not threaten gender equality on the job. Schultz’s call to move away from a sexuality-based harassment jurisprudence builds on the earlier work of Regina Austin, who recognized in 1988 that most workplace harassment was not ‘sexual’ in nature and proposed a tort of worker abuse to protect employees from class-based mistreatment at the hands of their bosses (Austin 1988). Although Austin was concerned with structures of class and race, recently a more individual dignitary approach has been revived by Anita Bernstein and by Rosa Ehrenreich, who propose protecting employees’ rights to equal respect through antidiscrimination and tort law, respectively (Bernstein, 1997, Ehrenreich 1999). Recognizing harassment as just another form of discriminatory treatment restores Title VII’s protections to those who allege discriminatory abuse based on characteristics other than gender or even race, such as religion and disability (Goldsmith 1999).

3. Future Directions

In the United States, the sexual model of harassment always rested uneasily alongside traditional employment discrimination law—which is concerned with work, not sexuality. Although the future is far from certain, the US Supreme Court’s recent sexual harassment decisions seem poised to restore harassment law to its traditional focus.

The Court’s 1998 decisions in Ellerth vs. Burlington Industries and Faragher vs. Boca Raton held that a company’s vicarious liability for a supervisor’s harassment turns on whether the harassment involves a ‘tangible employment action’—such as hiring, firing, or promotion—not on the content of the misconduct or its characterizations as quid pro quo or hostile environment harassment. In the absence of such a tangible action, companies can avoid liability by proving that they adequately corrected harassment a victim reported (or reasonably should have reported) through acceptable in-house channels. By creating a loophole for companies who investigate harassment through their own procedures, the Court sought to counter any current incentives for managers to ban sexual interactions across the board. By adhering to vicarious liability where harassment involves the same tangible employment decisions as more traditional forms of discriminatory treatment, the Court acknowledged that harassment is simply a form of employment discrimination subject to the usual legal rules (White 1999).

The Court’s decision in Oncale vs. Sundowner Offshore Services further reconciles sexual harassment with the traditional discrimination approach. In Oncale, the Court held that male-on-male harassment is actionable under Title VII, taking pains to emphasize that harassment is not to be equated with conduct that is sexual in content or design. ‘We have never held that workplace harassment … is … discrimination because of sex merely because the words used have sexual content or connotations,’ said the Court (Oncale vs. Sundowner Offshore Services, Inc., p. 80). By the same token, ‘harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.’ (Oncale vs. Sundowner Offshore Services, Inc., p. 80). ‘The critical issue,’ stressed the Court, ‘is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed, (Oncale vs. Sundowner Offshore Services, Inc., p. 80).

The social sciences are also beginning to look beyond the sexual model, providing evidence of the need to conceptualize sex harassment in broader terms. In the early years, most workers attempted to document the prevalence of harassment, albeit with limited results due to their implicit reliance on a conceptually narrow (yet often vague) notion of harassment specified by lists of sexual behaviors derived from the EEOC guidelines (Welsh 1999). Over time, the research has become more multi-faceted, as a burgeoning scholarship has focused greater attention on defining harassment, theorizing its causes, documenting its consequences, and developing predictors. Yet much research remains wedded to the sexual view. Prominent theories of harassment posit that men’s tendency to stereotype women as sexual objects is ‘primed’ by the presence of sexual materials or behavior to induce a ‘sex-role spillover’ effect that leads men to sexualize women inappropriately in the workplace (Fiske 1993, Gutek 1992). Predictive models search for characteristics that predispose men to harassment, such as a propensity to sexualize women over whom they have some supervisory authority (Pryor et al. 1995). Further examples abound (see Welsh 1999, Borgida and Fiske 1995). Nonetheless, recent research has opened up a broader horizon. A few studies have included measures of gender-based harassment that is not necessarily sexual in content or design: The results suggest that such harassment is more widespread than overtly sexual forms (Frank et al. 1998, Fitzgerald et al. 1988). Social psychologists have begun to look beyond sexual objectification to explore how other gender-based stereotypes and motives can combine with occupational identities and institutional contexts to produce a variety of forms of workplace harassment and discrimination that are not all motivated by sexual attraction (Fiske and Glick 1995). Even some economists have moved away from the conventional view of harassment as sexual coercion that is unrelated to the internal dynamics of labor markets (Posner 1989) to develop innovative theories to explain how incumbent workers can obtain the power to exclude and disadvantage aspiring entrants (Lindbeck and Snower 1988). These developments align social psychological and economic theories more closely with those of sociologists, who have long emphasized harassment’s connection to structural features of organizations such as gross numerical imbalance, standardless selection processes, and the absence of managerial accountability (Reskin 2000, Schultz 1991).

In tension with such efforts to transcend a narrow definition of sex harassment in the United States are developments in some other parts of the globe, where the sexual model championed by early US cultural- radical feminists seems to be gaining headway. According to some commentators, the American understanding of sex harassment has been disseminated abroad so successfully that it now forms the foundation for international debates on sex harassment (Cahill 2000). Following closely on the heels of legal developments in the USA, for example, the European Union took steps to condemn and outlaw workplace sex harassment as a violation of women’s dignity, and it defined this concept in terms strikingly similar to the definition promulgated by the US EEOC. Encouraged by EU initiatives, feminists in Europe have drawn on particular features of the US model to promote versions of sex harassment law that resonate with their own traditions. In Austria, Cahill shows, feminists capitalized on desires to signal Austria’s compliance with the economic First World’s laws to press for a harassment law that adopts both the sexualized substantive definition and the privatized enforcement mechanisms of the US approach. The importation of these features allows critics to reject not only the law but also the very existence of harassment as a nonindigenous, imperialist export (Cahill 2000). In France, as Saguy shows, French feminists won a law that criminalizes the use of ‘orders, threats, constraint or serious pressure in the goal of obtaining sexual favors, by someone abusing the authority conferred by his position’ (Saguy 2000, p. 19 and note 34). This approach incorporates the American cultural-radical feminist view of harassment as a form of sexual abuse yet simultaneously signals distance from what the French perceive to be US sexual prudishness by highlighting that harassment is an abuse of hierarchical authority—an idea that conforms to conventional French views of hierarchical power as inimical to equality. Neither French feminists nor lawmakers connect harassment to a larger system of workplace gender inequality that relegates women to inferior jobs; the gender segregation of work is accepted as a ‘neutral’ background condition rather than challenged as the structural context of inequality in which sex harassment flourishes and which it fosters. Friedman’s work suggests that even in Germany, where there is a tradition of using law to promote workers’ empowerment, transplanting the US model of harassment-as-sexual overtures serve to exacerbate what German feminists have decried as a conservative judicial tendency to define sex harassment as a violation of female sexual honor which requires moral purity (Friedman 2000).

It is perhaps ironic that just as German (and other) feminists are trying to highlight the specificity of sexual harassment, a new generation of US feminists are striving to incorporate sexual harassment into broader frameworks for understanding the dynamics of ingroup/outgroup exclusion among different groups of workers—a project that might well be assisted by expanding the German concept of mobbing as a pervasive pattern of workplace harassment that targets an individual for exclusion and abuse at the hands of coworkers and supervisors’ (Friedman 2000, p. 6). What is needed is a structural analysis of how a variety of different forms of harassment—including sexual advances, gender-based and other forms of taunting, physical threats, verbal denigration, work sabotage, heightened surveillance, and social isolation—can be used by socially dominant groups to code and to claim scarce social resources (such as good jobs and a sense of entitlement to them) to the exclusion of others. In this project, Americans have as much to learn from other countries’ experiences as vice versa.

It is cause for optimism that so many scholars, activists and policymakers are struggling toward such a broader—and deeper—understanding of harassment. Inspired by new research, new feminisms, and newer social movements (such as queer theory) that are calling into question the old top-down, male-female sexual model, the law of sex harassment awaits being overhauled to fit the world of the twenty-first century.

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