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Directions in Sexual Harassment Law

Directions in Sexual Harassment Law

Copyright Date: 2004
Published by: Yale University Press
Pages: 752
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  • Book Info
    Directions in Sexual Harassment Law
    Book Description:

    When it was published twenty-five years ago, Catharine MacKinnon's pathbreaking workSexual Harassment of Working Womenhad a major impact on the development of sexual harassment law. The U.S. Supreme Court accepted her theory of sexual harassment in 1986. Here MacKinnon collaborates with eminent authorities to appraise what has been accomplished in the field and what still needs to be done.

    An introductory essay by Reva Siegel considers how sexual harassment came to be regulated as sex discrimination. Contributors discuss how law can best address sexual harassment; the importance and definition of consent and unwelcomeness; issues of same-sex harassment; questions of institutional responsibility for sexual harassment in both employment and education settings; considerations of freedom of speech; effects of sexual harassment doctrine on gender and racial justice; and transnational approaches to the problem. An afterword by MacKinnon assesses the changes wrought by sexual harassment law in the past quarter century.

    eISBN: 978-0-300-13530-5
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Preface
    (pp. ix-x)
    C.A.M. and R.B.S
  4. Introduction: A Short History of Sexual Harassment
    (pp. 1-40)

    Some two decades after the federal courts first recognized sexual harassment as a form of sex discrimination, debate still continues about what sexual harassment is, why it might be sex discrimination, and what law can and should do about it. Many voices take up these questions in the pages to follow. In this introduction I will describe the historical foundations of this conversation, a conversation that continues without sign of diminishing, in the workplace and the popular press, as well as in such academic fora as the conference from which this book grew.

    What can history bring to our understanding...

  5. Part I. Contexts

    • 1 What Feminist Jurisprudence Means to Me
      (pp. 43-46)

      It is a great pleasure to be here to celebrate with you the twentieth anniversary of Catharine A. MacKinnon’sSexual Harassment of Working Women. To most of us, twenty years has been a lifetime. For twenty or twenty-five years we have been working to change the fact of male dominance over women. The question is: how do we do that? And in this conference, the question becomes: how does sexual harassment law do that?

      So, I would like to say that when I look at feminist jurisprudence I expect to see two things. The first is that the law has...

    • 2 Perspective on Sexual Harassment Law
      (pp. 47-50)

      I would like to go back to the beginning question that Catharine Mac-Kinnon put, “How do we end the inequality of the sexes?” That may seem a very broad way of speaking, but I think that it is the key question that we must ask about sexual harassment. The issue is not only how do we end inequality, but what kind of equality do we want. I go back to this, even though it is the broadest of perspectives, because I am old and I have been struggling with this question for many years. Indeed, I first began to address...

    • 3. Alexander v. Yale University: An Informal History
      (pp. 51-59)

      The writing ofSexual Harassment of Working Womenwas not exactly an academic exercise. As it was being written, many of the practical and theoretical problems of sexual harassment litigation were emerging in the work of the New Haven Law Collective,¹ when we sued Yale University in the spring of 1977. More specifically, we represented five women students and one male faculty member in a lawsuit asserting that sexual harassment of women undergraduates by male faculty members, without any mechanism for students to complain or for Yale to do anything about the complaints, was sex discrimination in violation of Title...

    • 4 Eradicating Sexual Harassment in Education
      (pp. 60-66)

      In the new millennium, where do we take the struggle for equality and the right to exist without sexual harassment? The front lines continue to be as vivid and significant in education as in the workplace. The controversies that surround the development of the law and its efficacy are nowhere more vibrant and thought-provoking than in the context of education. Questions that arise in the context of sexual harassment in employment—questions about definitions, prohibitions, personal liability, and personal relationships—are also the subject of concern in education and carry the added angst of judgments and attitudes about youth and...

    • 5. The Ecology of Justice: The Relationship Between Feminism and Critical Race Theory
      (pp. 67-74)

      For this symposium I had wanted to provide a detailed account of the many ways in which the bookSexual Harassment of Working Women¹ had changed the legal and social landscape. I especially had wanted to illustrate the deep connections between the feminist and structural analysis of the book and the critical race theory movement. That detailed study will have to wait. Instead I want to offer a more personal account. Like many who spoke at this gathering, I feel as though I was present at the creation. Catharine MacKinnon and I were in law school together and the ideas...

  6. Part II. Unwelcomeness

    • 6 Consensual Sex and the Limits of Harassment Law
      (pp. 77-93)

      An enormous achievement of the campaign against the harassment of working women has been to establish a set of facts about sex at work that had previously been denied, mocked, and misunderstood. As a result of Catharine MacKinnon’s early theorizing, brave public story-telling by Anita Hill and others, and concerted, ongoing litigation by many, it is now understood that sex can be unwelcome, that unwelcome overtures are neither harmless nor fun, and that consent to sex demanded on the job does not shift the behavior from the category of unwanted sex to the category of the welcome.

      At the same...

    • 7 Who Says? Legal and Psychological Constructions of Women’s Resistance to Sexual Harassment
      (pp. 94-110)

      In 1986, the Supreme Court recognized that a woman could participate in sex against her will, without being forced, without having a knife at her throat. They said she could do it and it could still be unwelcome. Looking back, this is nothing short of miraculous. In the nearly two decades sinceMeritor, however, it has become clear that its legacy is far from completely benign. Instead of its central insight, that a woman can submit to sexual abuse without being complicitous in it, courts have taken to heart the dictum that “the gravamen of any sexual harassment complaint is...

    • 8 Subordination and Agency in Sexual Harassment Law
      (pp. 111-128)

      In February 1998, Jeffrey Toobin published an article in theNew Yorker¹ that challenged the direction of sexual harassment doctrine. Toobin argued that feminists—led by Catharine MacKinnon—had gone wrong by arguing that “all sex is harassment and all harassment is sex.” Not only did apparently innocent sexual relationships come under scrutiny through this equation, but salient forms of harassment tended to be neglected in the focus on sex. To make the latter point, Toobin highlighted the work of Vicki Schultz.² Schultz stresses the continuity of sexual harassment with other forms of employment discrimination and argues that many debilitating...

    • 9 Sexual Labor
      (pp. 129-137)

      The underlying conception of sexual harassment is a defense of women’s right to participate in the public sphere of the labor market.¹ In this essay, I argue that a concern for assuring the dignity of labor for women as a collective, and not the policing of sexual boundaries between individuals, should guide the courts in defining doctrinal elements of the cause of action. I consider “sexual labor” and the definition of work, and ask what it means to get equal pay and enjoy equal working conditions. I consider how differing regimes of sexual harassment law affect women’s relationship to work....

    • 10 Unwelcome Sex: Toward a Harm-Based Analysis
      (pp. 138-152)

      The legal transformation of the same worldly phenomenon—unwelcome sexual behavior foisted by relatively powerful men upon relatively less powerful girls and women, in workplaces, in schools, and in the military—from an unnamed, pervasive, natural, and hence invisible quality of public life, to the source of private injuries which might but most likely would not sustain a tort action, to a clear cut deprivation of civil and constitutional rights, has been a breathtaking feminist triumph of the last quarter of the twentieth century. But the speed of that transformation has not been without costs. One of the costs may...

  7. Part III. Same-Sex Harassment

    • 11 Theories of Harassment “Because of Sex”
      (pp. 155-168)

      Where does Title VII “draw the line” between impermissible workplace sexual harassment and permissible, even if squalid, misconduct? The statute tells employers they cannot “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.”¹ This text does not clearly tell the Equal Employment Opportunity Commission (EEOC) or the courts where to draw the line, owing in part to the ambiguity of the wordsex, in part to the lack of a clear policy underlying the prohibition, and in part to the importance of context...

    • 12 What’s Wrong with Sexual Harassment
      (pp. 169-181)

      What exactly is wrong with sexual harassment? In the United States today, it goes without saying that workplace sexual misconduct is a form of sex discrimination. How has this come to go without saying? Is there something we should be saying about it that illuminates it’sa priorisexism? The time has come to ask these questions anew, some twenty years after the publication of Catharine MacKinnon’s groundbreaking book in which she first articulated how sexual harassment institutionalized the sexual subordination of women to men in the workplace. Since 1979, as courts have come to embrace a cause of action...

    • 13 Sexuality Harassment
      (pp. 182-200)

      The Supreme Court has held that same-sex sex harassment may be sex discrimination within the ambit of Title VII. Its opinion inOncale v. Sundowner Offshore Services¹ tells us that same-sex harassing conduct that meets other criteria in the doctrinal scheme is conclusively sex discrimination when it is motivated by erotic attraction. Thus the Court indicates that same-sex erotic overtures at work can be sex discrimination, and invites lower courts to test for erotic content by inquiring into the sexual orientation of the individual defendant. Where the defendant in a same-sex sex harassment case is not homosexual, the Court tells...

    • 14 Discriminating Pleasures
      (pp. 201-220)

      The Supreme Court’s announcement inOncale v. Sundowner Offshore Services, Inc.,¹ that same-sex sexual harassment can be actionable sex discrimination under federal antidiscrimination law, changes the social context against which it was decided. No longer, for instance, are men guaranteed all the protections male supremacy has traditionally offered them when they sexually subordinate other men. In refusing to desexualize same-sex sexual violence or render it legally invisible,Oncaledisrupts the conventional social meanings that that violence has had. AfterOncale, one cannot be certain how “boys will be boys,” or how one is supposed to “take it like a man.”...

    • 15 Gay Male Liberation Post Oncale: Since When Is Sexualized Violence Our Path to Liberation?
      (pp. 221-244)

      In August 1991, Joseph Oncale began work as a roustabout on an oil rig for Sundowner Offshore Services. Shortly after Oncale started employment, his supervisor, John Lyons, approached him and stated, “You know you got a cute little ass boy” and threatened to “fuck him from behind.” Remarks of this sort soon became a constant in the life of Joseph Oncale: “If I don’t get you now, I’ll get you later. I’m going to get you. You’re going to give it to me.”

      John Lyons and two of Oncale’s coworkers came close to “getting” Joseph Oncale but they didn’t have...

  8. Part IV Accountability

    • 16 The Rights of Remedies: Collective Accountings for and Insuring Against the Harms of Sexual Harassment
      (pp. 247-271)

      Twenty years of sexual harassment law has taught us a great deal about harassment, the use of sex, and gendered roles in workplaces and schools.¹ These twenty years have also taught us about law’s ability to reshape discourse and actions. Celebration is appropriate to mark such success and to acknowledge thatto bein the third decade of work on the idea and on the law of sexual harassment is, itself, an achievement.

      But we also have the burden of knowing that despite the powerful insights, the scores of lawsuits and complaints, and the many regulations promulgated by governments and...

    • 17 Employer Liability for Sexual Harassment by Supervisors
      (pp. 272-289)

      Traditionally and as a general proposition, employers are vicariously responsible for the wrongful acts of their employees, when committed at the work site. When the victim is a nonemployee such as a customer or stranger, the employer is liable under the common law doctrine ofrespondeat superior. When the victim is an employee, the employer is responsible through an insurance system known as workers’ compensation, and may also be responsible under the common law tort system. Liability is generally imposed not only for torts based on negligence, but for intentional torts as well. The employer’s liability, being vicarious, is imposed...

    • 18 Sex in Schools: Who’s Minding the Adults?
      (pp. 290-306)

      The last two decades of struggle over sex in schools are a testament to partial progress. For centuries, students were sexually harassed, but the law offered neither a label nor a remedy. When I was an undergraduate, before the efforts celebrated in this volume, many of us had “a problem” with professors. But the problem was always ours, never theirs.

      Over the last twenty years, much has changed, but much has remained the same. Sexual harassment now has a legal identity, complete with policies, procedures, and political infighting. But while we finally have acknowledged the problem, we are a considerable...

    • 19 Nooky Nation: On Tort Law and Other Arguments from Nature
      (pp. 307-323)

      After rereading Catharine MacKinnon’s bookFeminism Unmodifiedfor the February 1998 conference at Yale Law School, I became a bit reluctant to participate because it seemed everything important had already been said.It’s all in there. In 1987, MacKinnon predicted the backlash against her work, while acknowledging that its forms were unforeseeable.¹ My reluctance was dispelled however by events then emerging in Washington and Little Rock, unpredictable even by MacKinnon.

      To call the conference timely would be the zenith of understatement. The year 1998 marked many milestones for sexual harassment issues, both in the law² and in the news. Indeed,...

    • 20 Damages in Sexual Harassment Cases
      (pp. 324-344)

      When someone has been sexually harassed, will punitive damages be deemed appropriate? If so, how much? And what is the measure of compensatory damages when much of the injury is not economic but partly dignitary, and involves a degree of suffering rather than an easily monetized injury?

      We attempt to make some progress on these questions through some descriptive and empirical claims. Our basic finding is that people, including jurors, have a very hard time in mapping their judgments onto a dollar scale. Thus there is likely to be a high degree of variability and randomness. People who are similarly...

  9. Part V. Speech

    • 21 The Speech-ing of Sexual Harassment
      (pp. 347-364)

      Although a great deal of sexual harassment takes place without words, even more of it does not. Whether it be the words that are used to make the quid pro quo proposition that characterizes the classic if-you-sleep-with-me-you-will-not-get-fired form of sexual harassment, or the catcalls and other words of taunting that create the archetypal hostile environment, a vast amount of what uncontroversially counts as sexual harassment under the law takes place through the use of what would be called “speech” in the ordinary, nontechnical, nonlegal, non–First Amendment sense of that word.

      For the first fifteen years of the development of...

    • 22 The Collective Injury of Sexual Harassment
      (pp. 365-381)

      Sexual harassment inflicts a collective injury. Twenty-five years ago in her groundbreaking book,Sexual Harassment of Working Women, Catharine MacKinnon explained that sexual harassment is a form of sex discrimination because it stems from and helps to perpetuate the inequality of women at work and in the wider society.¹ MacKinnon and other scholars have conceptualized sexual harassment to include subordinating sexual relations, as well as other conduct that promotes norms of masculinity and femininity and enforces gendered work roles.² The harm of sexual harassment is collective because it affects the status of all women in the workplace where it occurs,...

    • 23 Sexual Harassment and the First Amendment
      (pp. 382-398)

      There is growing apprehension of possible tensions between the First Amendment and Title VII’s prohibition of sexual harassment.¹ Often claims of sexual harassment in the workplace depend entirely upon communicative behavior, and it is uncertain how such claims ought analytically to be reconciled with a jurisprudence that protects freedom of speech.

      The issue was the subject of a panel discussion at the 1998 annual meeting of the American Association of Law Schools. Eugene Volokh, a noted scholar in the area, argued that Title VII’s ban on sexual harassment imposed repressive legal regulation upon expression that would otherwise plainly merit constitutional...

    • 24 The Silenced Workplace: Employer Censorship Under Title VII
      (pp. 399-416)

      For the past two decades, and especially since the Supreme Court’s 1986 decision inMeritor Savings Bank v. Vinson,¹ employers have engaged in extensive censorship of their employees’ speech because of fear of liability for hostile-environment harassment.² To date, there has been only a little judicial recognition that requiring employers to engage in such censorship raises serious First Amendment issues.³

      The definition of hostile-environment harassment under which employers must operate is both broad and vague. It includes “verbal or physical conduct”⁴ that is “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working...

    • 25 Pornography as Sexual Harassment in Canada
      (pp. 417-436)

      The display or use of pornography in the workplace is recognized as a form of sexual harassment by provincial human rights tribunals in Canada. Although few decisions have considered this issue, tribunals have held that the presence of pornography in the workplace creates an unequal working environment for women. Grievance arbitrators under collective agreements have accepted this approach in principle, while showing greater reluctance to find harassment on the facts. Despite the debate in the United States as to whether certain kinds of sexual harassment, including workplace pornography, are protected speech under the First Amendment, there have been no serious...

    • 26 Free Speech and Hostile Environments
      (pp. 437-454)

      Does sexual harassment law conflict with the First Amendment? A number of commentators now argue that it does.¹ Generally, these objections focus on employer liability for hostile environments. Virtually no one finds fault with regulating quid pro quo sexual harassment: employers who tell employees to “sleep with me or you’re fired” make threats that are not protected by the First Amendment.

      Hostile environments, however, do not always involve threats. They stem from individual acts of discriminatory speech and other conduct by all the persons who inhabit a workplace, including managers, employees, and even occasionally clients and customers. A hostile environment...

  10. Part VI Extensions

    • 27 Slavery and the Roots of Sexual Harassment
      (pp. 457-478)

      In recent years, feminist scholars and activists have demonstrated the ways that U.S. slavery functioned as a system of gender supremacy. It entailed the dominance of men over women as well as whites over blacks. Adding the gender lens has shed immense light on the ways that sex, law, and power operated in the racially supremacist enslaving South. In recent years, this literature has emphasized the ways that slavery’s sexual and racial subordination converged around the bodies of enslaved black women. My own contribution attempted to catalogue the legal rules that compelled black women into productive, reproductive, and sexual labor...

    • 28 The Racism of Sexual Harassment
      (pp. 479-495)

      Despite the fact that early on the groundbreaking bookSexual Harassment of Working Womenobserved the salience of racism to the occurrence of sexual harassment,¹ sexual harassment has by and large been viewed by courts as a transgression without color. Sexual harassers are presumed to be color blind in their selection of victims, and sexual harassment is generally viewed as a civil rights violation in which issues of race are irrelevant.² Yet a recent statistical analysis of the filing rates of sexual harassment charges suggests otherwise.³

      The comprehensive study analyzes Equal Employment Opportunity Commission (EEOC) sexual harassment charge statistics, by...

    • 29 Coercion in At-Will Termination of Employment and Sexual Harassment
      (pp. 496-515)

      On the occasion of celebrating the emergence of sexual harassment as a cause of action, I would like to reflect on what can be learned from this extraordinary success about the possibilities for progressive legal reform in the world of work.

      Sexual harassment stands out as such a clear and significantly successful progressive reform because in the world of work, there is no general legal redress against a personally hostile workplace environment. By contrast, in Europe, where employees’ interests in their jobs are afforded more legal protection, the concept of mobbing serves to provide legal redress against personally hostile workplace...

    • 30 Public Rights for “Private” Wrongs: Sexual Harassment and the Violence Against Women Act
      (pp. 516-534)

      “Whatever happened to privacy?” laments one commentator.¹ Another complains that “sex isn’t private anymore.”² Increasingly, the fashionable response to notorious sexual harassment cases and scandals is to deplore the fact that courts and the general public are hearing about them.³ Sexual harassment law should be curtailed, we are told, because legal remedies for sexual exploitation are an illegitimate intrusion into a zone that should remain private.⁴ According to this argument, the law has no business prying into the mix of “passion, nuance, irrationality, and lust” known as human sexuality, even when the setting is the workplace or the classroom.⁵


    • 31 Why Doesn’t He Leave? Restoring Liberty and Equality to Battered Women
      (pp. 535-558)

      In 1994, I was serving as Acting Chief of the Women’s Advocacy Division at the Illinois Attorney General’s Office when a woman named Rhonda called me. She told me that the day after she had obtained an emergency order of protection¹ against her ex-boyfriend Steve, he followed her in his car, forced her off the road, and threatened to “rip her guts out” with a lug wrench that he held in his fist, poised in the air and aimed at her stomach. Rhonda’s sixty-three-year-old father, who was with her, jumped out of the car and tried to restrain Steve. In...

  11. Part VII Transnational Perspectives

    • 32 Dignity, Respect, and Equality in Israel’s Sexual Harassment Law
      (pp. 561-581)

      Sexual harassment is a universal affliction, endured and resisted by women (and men) everywhere. Since the early 1970s, U.S. feminist legal scholarship and judicial decisions have been breaking new ground, developing legal strategies designed to confront sexual harassment head-on. Although a host of social and legal issues have been resolved, others are still being investigated and debated. For example, does sexual harassment offend a fundamental social value? Should it be criminalized? Should it be treated as a tort? What should the scope of sexual harassment be? Should it be limited to the workplace or should it extend to the street?...

    • 33 Dignity or Equality? Responses to Workplace Harassment in European, German, and U.S. Law
      (pp. 582-601)

      The legal reactions to the social problem of sexual harassment in Europe, particularly in the European Union and in Germany, have been based on dignity as the fundamental right of men and women that has been violated in such cases. German and European law conceptualize law against sexual harassment differently from the United States, where jurisprudence is based on a specific interpretation of the right to equality. In the year 2000, European law moved in the direction of a focus on equality, rather than dignity. New directives based on article 13 of the European Treaty define workplace harassment as discrimination.¹...

    • 34 French and American Lawyers Define Sexual Harassment
      (pp. 602-617)

      The concept of “sexual harassment,” first articulated by American feminists in the mid-1970s, has since moved well beyond the small feminist and legal circles where it was born, becoming a household name, not only in the United States but in other nations as well. How has the concept of sexual harassment traveled across national boundaries? How have the distinct legal and cultural traditions of other countries shaped the meaning of “sexual harassment” abroad? This essay addresses these issues, in the case of France, drawing on a cross-national sociological study of how sexual harassment has been defined in the United States...

    • 35 Sexual Harassment in Japan
      (pp. 618-632)

      The history of Japanese sexual harassment laws is a very short one. Indeed, theFukuokacase,¹ the landmark Japanese court decision in the concept of sexual harassment was introduced to the Japanese legal community and to Japanese society as a whole, was decided in 1992.² During the intervening years there have been numerous developments in Japan’s sexual harassment law, culminating in inadequate revision to the Equal Employment Opportunity Law which took effect in April 1999.³

      This essay will give the reader an overview of Japanese sexual harassment law and, to this end, will focus on three points. First, the essay...

    • 36 The Modesty of Mrs. Bajaj: India’s Problematic Route to Sexual Harassment Law
      (pp. 633-654)

      On July 18, 1988, Mrs. Rupan Deol Bajaj, Special Secretary for Finance in the Indian Administrative Service, Punjab cadre, went with her husband, also a senior IAS officer, to an official dinner party at the home of their colleague Shri S. L. Kapur, the Commissioner of Finance.¹ Among the guests was Mr. Kanwar Pal Singh Gill, Punjab’s Chief of Police, whom many regard as a national hero for his leading role in crushing the Sikh separatist insurgency.² The party took place on a lawn behind the house. According to Indian middleclass tradition, the women (called “ladies” by the Court) were...

    • 37 Sexual Harassment: An International Human Rights Perspective
      (pp. 655-671)

      This chapter considers sexual harassment in the workplace from the perspective of international human rights law. Adopting a human rights approach locates sexual harassment in the context of women’s economic and social rights and more broadly in the wider frame of international imperatives such as the maintenance of international peace and security and global economic development. Sexual harassment has come onto the international agenda comparatively recently, and the story comprises both the inclusion of prohibitions within legal instruments and significant silences, especially where breaking the silence requires intrusion into state policies relating to militarism, trade and investment liberalization, and the...

  12. Afterword
    (pp. 672-704)

    In the quarter century since some sex forced by power became illegal in the United States, has anything changed?

    The experience has been named, its injuries afforded the dignity of a civil rights violation, raising the human status of its survivors. Resentment of unwanted sex under unequal conditions is expressed more openly and given more public respect. Women may feel more valid and powerful, less stigmatized and scared, more like freedom fighters and less like prudes, when they turn down sex they do not want in unequal settings. Many more people know that a sexual harasser is a sex bigot...

  13. List of Contributors
    (pp. 705-716)
  14. Index
    (pp. 717-736)