Читать книгу Sexual Harassment in the United States - Mary Welek Atwell - Страница 12
Оглавление· 1 · patriarchy and sexual harassment
Sexual harassment did not begin when contemporary women began to complain about Harvey Weinstein. Reva Siegel writes that sexual harassment is a “social practice with a history.”1 In its history, women in subordinate positions—servants, slaves, domestic workers, unskilled factory laborers—had little recourse when men who controlled their workplace demanded sexual favors. As Augustus Cochran points out, the American economy until the New Deal era was characterized by little government regulation. Work was treated as a private relationship between employer and worker. Thus employees had only the protections that legislatures and courts chose to define. “Society’s agenda” determined what those protections would be,2 and virtually all of those who determined society’s agenda were male. Until the late twentieth century, workers’ protections did not include a right to be free from sexual harassment, although the problem existed and was described many decades earlier.
A 1910 government report, Women and Child Wage Earners, for example, asked the questions, “Is modern industry dangerous to the character of women? Are moral qualities affected?” In response the Bureau of Labor Statistics hypothesized that if men and women work together, “great laxity obtains” which threatens the virtue of young ladies through “obvious improprieties.”3 ←7 | 8→In offices and factories, careless behavior could occur and women would find it difficult to resist, especially if dependent on men for their jobs. The report was describing what would come to be known as sexual harassment, although it suggested that the real threat was to women’s “virtue,” and that the problem was one of moral laxity rather than discrimination and economic injustice. Also in the early twentieth century, groups such as the Immigrant Protective Association in Chicago, the Young Ladies’ Educational Society representing the needle trades, and the Women’s Trade Union League recognized the problem and tried to protect working women from their supervisors. Those who supported protective legislation that limited women’s working hours often expressed concern for the moral status of women and believed shielding them from “improper advances” was a matter of safeguarding their virtue, rather than dealing with a form of economic abuse.4
In the early 1970s, consciousness raising groups, speak-outs, and Take Back the Night rallies gave women the opportunity to voice their experiences with abusive behaviors such as rape and domestic violence. Joan Hoff asserts that until other more violent forms of sexual abuse were identified and addressed, sexual harassment received little attention, even though it was the most common and most subtle form of sexual exploitation of American women. Usually victims would endure harassing behavior in silence because it was hard to find the courage to speak out against pain and humiliation, especially as women’s voices were often not heard as authoritative.5 But groups like Working Women United did talk about abusive behavior in the workplace. Before it had the name “sexual harassment,” women spoke to each other about unwanted sexual advances and demands, as they did about the many other types of abusive behavior not taken seriously in a patriarchal society.
Like other forms of physical and psychological violence against women, sexual harassment cut across class and racial lines—it affected women, no matter the color of their collar or of their skin. And like other forms of violence against women, it involved basic personal integrity as well as economic survival.6 Many commentators have pointed out the irony that as women took on more jobs in traditionally male fields, especially but not exclusively in blue collar positions, they seemed to be making economic progress. However, men often greeted their new female colleagues with attempts to create an intimidating environment through “isolation, work sabotage, severe verbal abuse, and even physical violence.”7 Alice Kessler-Harris suggests that men resorted to harassment to discourage women and emphasize male solidarity. Suggestive remarks, threats, refusing to mentor women or even to help them learn ←8 | 9→necessary skills, interfering with their equipment—all were ways to assert a claim that the workplace was “masculine turf.”8 Some men seemed to believe that humiliation and hostility could keep women out of the factory or the mine and “in their place.” But many blue collar women, recognizing this strategy, helped to foster and spread the idea that sexual harassment was really not about sexual desire. Rather it was an effort to keep women subordinate in the workplace, to maintain the privileges and benefits of male domination and control.9 Cochran notes too that “sex-role spillover” is another characteristic of sexual harassment. Men expect female employees to perform traditional domestic duties—making coffee, taking out their laundry, boosting their egos, meeting their emotional needs—generally serving as the “office wife.” Why not also include sex?10
Although the behavior was as old as human history, the importance of providing a name and a legal definition cannot be overstated. It seems that the first use of the term “sexual harassment” came in an organizing letter sent out by the Human Affairs Program at Cornell University in 1975.11 Within the next year, the Wall Street Journal, the New York Times, and Harper’s magazine featured stories and spread the use of the terminology. In 1977, Ms magazine published a cover story entitled “Sexual Harassment on the Job and How to Stop It.”12 The word was out that sexual harassment was a problem that demanded attention.
Until it had a name, it was easy to trivialize women’s experience as a breach of social etiquette or as “boys will be boys.” Naming sexual harassment was critical to making the problem a public issue. As Abigail Saguy points out, identifying sexual harassment challenged cultural assumptions about gender, sexuality, and the workplace. It transformed how women could respond to advances at work from self-blame to righteous anger. She claims it also helped to change men’s view (or at least the views of some men) from feelings of entitlement to feelings of guilt.13
Equally as important as naming sexual harassment was providing legal reasoning to establish its illegitimacy. Based on the notion that women had a “right to work free of unwanted sexual advances” advocates and activists developed the argument that sexual harassment was analogous to racial harassment and that both were forms of discrimination prohibited by civil rights law.14 Just as racial discrimination contributes to inequality and could keep members of minority groups out of the workplace, sexual harassment as a form of sex discrimination could keep women out of the workplace or relegate them to less desirable jobs. While those who refused to take sexual ←9 | 10→harassment seriously preferred to defend the conduct as just regular old hanky-panky, by contrast, feminist analysis emphasized “unsolicited, non-reciprocal male behavior that asserts women’s sex role over her function as a worker.”15 Catharine MacKinnon, the intellectual architect of legal definitions of sexual harassment focused on how it involves dominance, impersonal contempt, and entitlement and how it reinforces sexual inequality.16 In other words, just as rape is about power not about sexual attraction, sexual harassment is also more about power than about sex. Both serve as instruments in maintaining a patriarchal society.
MacKinnon quoted bell hooks who defined feminism as “the commitment to eradicating the ideology of domination.”17 Part of the feminist agenda meant recognizing that the world had been shaped by men, that they maintained the larger share of power and prestige and that nearly all laws ever made had been written and interpreted by men—presumably to maintain that power and prestige. If such conditions were to change and genuine equality between men and women were to be achieved, it must involve more than “formal equality”—the theory that similarly situated persons should be treated comparably, regardless of sex. Such a notion meant that to achieve equality women would be expected to assimilate to male norms, even though their situation was “relevantly different.”18 MacKinnon argued that far from being similarly situated, men and women lived in a world where most social institutions supported the status quo and were designed to perpetuate male privilege and female subordination. That subordination was maintained through force, social pressure, tradition, rituals, and customs.19 Sexual harassment was just one way of maintaining women’s subordination.
Definitions of equality and inequality are based on deciding whose perspective is considered valid. The importance of perspective is apparent in the history of race relations. In the 1896 Plessy v. Ferguson decision, the Supreme Court found that segregation was not a violation of the Constitution, In that ruling the justices held that any belief that separate accommodations implied inferiority existed only in the minds of African Americans.20 The Court saw things differently in 1954 when they ruled in Brown v. Board of Education that segregation was inherently unequal.21 One might apply a similar analysis to sex equality law. Suppose rather than asking about sameness and difference between men and women, one were to ask about dominance and subordination, about gender hierarchy rather than gender comparisons? Such an inquiry would lead away from formal equality as an objective and would assume a different set of remedies.
←10 | 11→
Gerald Torres agrees, noting that gender inequality was not something that exists in the hearts of individual people, but that it was “naturalized into the normal working of social institutions.”22 Formal equality is an inadequate approach as it views systematic injustice as prejudice or discrimination by individuals, rather than as something built into a patriarchal society. Thus, making gender inequality visible, as happens through efforts to eradicate sexual harassment, is not a matter of making women feel better but it is rather a way to change social reality.23 Joan Hoff also contends that advocating equal treatment as if men and women were interchangeable overlooks the fact that gender is central to relationships of power. Women’s diversity often obscures the “oppressive commonality” of their experience that gender discrimination is about the power of men over women.24 Like rape, pornography, and other violence against women, sexual harassment serves to maintain that power. The commonality of women’s experience with such institutionalized injustice serves to illustrate the “masculinity of the U.S. Constitution”25 and the need for a feminist legal analysis.
MacKinnon points out that law can become a weapon for justice in dealing with sexual harassment as it is in addressing other forms of discrimination. A belief in justice, a conviction that the lives of “ordinary” people matter, can give law the power to bring about change.26 She suggests three steps in a feminist legal approach: unmasking patriarchy; contextual reasoning; and consciousness raising. The process starts with the “woman question,” which asks how the law fails to consider women’s experiences and values and how legal standards disadvantage women.27 In unmasking patriarchy, feminists try to expose the law’s unfairness in relying on differences between men and women in the distribution of social benefits. They reject gendered stereotypes as inaccurate and argue that where differences between men and women do exist, they do not justify burdening women in relation to men.28 Feminists advocate viewing social disparities as structural problems and noting that bias is often institutional rather than merely individual and intentional.29 Martha Chamallas also describes several “moves” that characterize a feminist approach to the law: “suspicion of sex-based distinctions and generalizations;” “uncovering implicit bias in neutral legal standards;” and “placing high value on women’s experience.”30
Part of the struggle for gender-based justice involves contextual reasoning—providing evidence from the lives of real women. As campaigns against rape and domestic violence have demonstrated, women’s collective experience with abuses based on male power can also shape the laws against sexual ←11 | 12→harassment. The current #MeToo and Time’s Up movements are ongoing examples of the strength of sharing incidents. Likewise, consciousness raising, which is also manifested in the contemporary movements, provides support to individuals and reveals the power of numbers across regions and social classes.
Because it is a manifestation of power and domination in the workplace, sexual harassment is not only a matter of individual injury but a form of group-based discrimination that reinforces women’s subordinate status. Not all women are affected in the same way by male power, but no women are unaffected by it. Not all women are the same, but “all are treated as women under male supremacy.”31 Thus seeing sexual harassment as simply the bad behavior of individuals obscures its roots in the identification of women as a group who have been and who remain marginalized. As Carrie Baker states, sexual harassment as a system of social control, male dominance, and patriarchy does not consist of isolated acts but is “consistent, systematic, and pervasive.”32 Sexual inequality plus material inequality add up to cumulative injuries that affect women as a group.33 Women may be injured one by one but the discrimination that occurs is not based on individual qualities. Just as racial discrimination grows out of assumptions about African-Americans or Hispanics as a group, sexual harassment emerges from assumptions about women as a group. The absence of treatment based on individual qualities, MacKinnon contends, is the essence of discrimination. She sees much of sexual harassment “enforced by unconscious, heedless, patronizing, well-intentioned, or profit-motivated acts.” But such behaviors are “no less denigrating, damaging, or sex-specific for their lack of invidious sex-based motivation.”34 Unwelcome sex talk or unwelcome sex acts (the mainstays of sexual harassment) exclude, segregate, subordinate, dehumanize, violate the human dignity of their targets, and deny them equality of opportunity.35 As Dorothy Roberts argues, such harms are collective. They affect the status of all women in the workplace, in the labor market, and in society. They constitute a social harm and a social injury. Why? Because other women will see themselves as potential targets. Because sexual harassment helps maintain women in subordinate positions and because it disrespects women as a group and treats them as inferiors.36 If sexual harassment claims can be viewed not as allegations by mere individuals but by individuals who are members of a group (women), the parties are not just “bad men and virtuous women but dominating men and subordinated women.” The activity is not just bad behavior but part of a “social system of gendered group-based inequality that produces injuries of second class citizenship.”37 Thus the laws prohibiting sexual harassment are ←12 | 13→not simply restrictions on personal conduct. They are elements in the structure of anti-discrimination law designed to facilitate the promise of equality in the workplace and in the larger social context.
MacKinnon developed the argument that sexual harassment is a violation of Title VII of the Civil Rights Act of 1964 that prohibits discrimination in the terms and conditions of employment on the basis of sex. She based this claim on the reasoning that discrimination is really about dominance and subordination and that sexual harassment imposes such inequality. She wrote that “conditioning economic survival on sexual submission is as invidious a practice of discrimination as any other. Its effect on the equal treatment of individuals at work without regard to sex is as destructive as any other.” The discrimination was a fact whether the harassment took the form of demanding sexual favors in exchange for job consideration (quid pro quo) or when the atmosphere in the workplace was permeated with sexual denigration (hostile environment).38 Achieving sex equality through law has required “unconventional and unprecedented approaches and arguments.”39 Sexual harassment law is an example of this unconventional and unprecedented thinking. It is, in fact, the first legal wrong actually defined by the victims, women. Rejecting the theory that sexual harassment was individual behavior with psychological and biological roots, the women who created the legal definition saw it as a manifestation of asymmetrical power and cultural stereotypes. Feminist legal thinkers exposed the idea that the sexual objectification, which is a basic element of sexual harassment, is a central dynamic of gender inequality, that it is systematic and harmful, and therefore illegal. Although a male harasser might argue that no harm occurs if none is meant, the victim of harassment would see things differently. Feminists were the first legal theorists to regard women’s point of view as serious and definitive and to interpret anti-discrimination law accordingly.40
As later chapters of this book will discuss, it was a struggle to get legal remedies for sexual harassment accepted by the courts. Just as with rape cases, men often did not agree that they had done something wrong. Women were complaining about activity that was not really different from regular male behavior—some men just happened to get caught.41 But with rape and sexual assault, women were dealing with laws that had been made by men and that men had been able to interpret for centuries. With sexual harassment, for the first time, women wrote the definition of the injury.
Congress has never legislated specifically against sexual harassment or described terms of liability by employers. It has been the courts that have ←13 | 14→articulated the laws against sexual harassment. Judges have been the ones to distinguish between boorish personal behavior and discrimination, to consider power imbalances not just individual malfeasance.42 Thus women and their advocates arguing in courts have been responsible for transforming a “moral foible into a legal injury to equality rights.” The issue of sexual harassment now involves human rights, equality claims, and sanctions by the state. No longer is it—nor should it be—a private matter. Courts should be asking “Is this unequal treatment?” not “Is this bad?”43 But there is a danger if the meaning of sexual harassment is left in the hands of courts. As MacKinnon warns, women must “keep control over our own outrage and the definition of our own injuries and never allow the courts to tell us what constitutes our oppression.”44
However, women have not always been the ones to decide what constitutes their oppression. As the later chapter on the Supreme Court’s rulings will show, the justices have not necessarily agreed with feminist legal analysts about responsibility for sexual harassment, although they have found it to be a violation of the Civil Rights Act. Nor has Congress believed in the truthfulness of women who claim to be victims of sexual harassment, as the case of Anita Hill demonstrated most vividly. Members of Congress have been casual and inconsistent in disciplining their own colleagues who engage in harassing behavior. Other patriarchal institutions such as universities and the military have also been erratic in their responses to harassment. But there is a case to be made that the issues resonate differently now. Some have argued that inspired by the election of Donald Trump—someone who could brag about sexual assault and still win the presidency—women have insisted through the #MeToo and Times Up movements that harassers be held accountable. They should answer to the court of public opinion if not to the judicial system. If the outrage and determination of the current movement persists and if the current attitude toward sexual misconduct and harassment does have a lasting effect, it will mean fundamental change in the relationships of women and men, in the workplace and in the larger society.
Notes
←14 | 15→←15 | 16→
1. 1Reva Siegel, “Introduction: A Short History of Sexual Harassment Law,” in Directions in Sexual Harassment Law, Catharine A. MacKinnon and Reva B. Siegel, eds. (New Haven, CT: Yale University Press, 2004), 1.
2. 2Augustus B. Cochran III, Sexual Harassment and the Law: The Mechelle Vinson Case (Lawrence, KS: The University Press of Kansas, 2004), 24.
3. 3Alice Kessler-Harris, Out to Work: A History of Wage-Earning Women in the United States (New York: Oxford University Press, 2003), 101–3.
4. 4Carrie N. Baker, The Women’s Movement Against Sexual Harassment (New York: Cambridge University Press, 2008), 2–3.
5. 5Joan Hoff, Law, Gender, and Injustice (New York: New York University Press, 1991), 426–7.
8. 8Kessler Harris, Out to Work, 334.
9. 9Hoff, Law, Gender, and Injustice, 68.
10. 10Cochran, Sexual Harassment and the Law, 31.
11. 11Fred Strebeigh, Equal: Women Reshape American Law (New York: W.W. Norton & Company, 2009), 218.
12. 12Baker, Women’s Movement, 36–9.
13. 13Abigail Saguy, What Is Sexual Harassment? From Capitol Hill to the Sorbonne (Berkeley, CA: University of California Press, 2003), 3–4.
14. 14Siegel, “Introduction,” in Directions in Sexual Harassment Law, MacKinnon and Siegel, eds., 8–9.
17. 17Catharine A. Mackinnon, Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989), 2.
20. 20Plessy v. Ferguson, 163 U.S. 537 (1896).
21. 21Brown v. Board of Education, 349 U.S. 483 (1954).
22. 22Gerald Torres, “The Ecology of Justice: The Relationships between Feminism and Critical Race Theory”, in Directions in Sexual Harassment Law, Catharine A. MacKinnon and Reva B. Siegel, eds. (New Haven, CT: Yale University Press, 2004), 68.
24. 24Hoff, Law, Gender, and Injustice, 352.
26. 26Catharine A. MacKinnon, Butterfly Politics (Cambridge, MA: Belknap Press, 2017), 326–7.
27. 27MacKinnon, Feminist Theory, 41–2.
30. 30Quoted in Bridget J. Crawford, Kathryn M. Stanchi, and Linda L. Berger, “Feminist Judging Matters: How Feminist Theory and Methods Affect the Process of Judgment,” University of Baltimore Law Review 47 (2018), 175.
31. 31Catharine A. MacKinnon, Women’s Lives. Men’s Laws. (Cambridge, MA: Belknap Press, 2005), 87–8.
32. 32Baker, Women’s Movement, 94.
33. 33Ann Scales, “Nooky Nation: On Tort Law and Other Arguments from Nature,” in Directions in Sexual Harassment Law, Catharine A. MacKinnon and Reva B. Siegel, eds. (New Haven, CT: Yale University Press, 2004), 311.
34. 34MacKinnon, Butterfly Politics, 59.
35. 35Catharine A. MacKinnon, Only Words (Cambridge, MA: Harvard University Press, 1993), 46.
36. 36Dorothy Roberts, “The Collective Injury of Sexual Harassment,” in Directions in Sexual Harassment Law, Catharine A. MacKinnon and Reva B. Siegel, eds. (New Haven, CT: Yale University Press, 2004), 366–9.
37. 37MacKinnon, Women’s Lives. Men’s Laws, 190.
38. 38Catharine MacKinnon, “Brief for Respondent Mechelle Vinson,” Butterfly Politics, 65.
39. 39MacKinnon, Butterfly Politics, 3.
42. 42Gwendolyn Mink, Hostile Environment: The Political Betrayal of Sexually Harassed Women (Ithaca, NY: Cornell University Press, 2000), 52–3.
43. 43MacKinnon, Directions in Sexual Harassment Law, 674–5.
44. 44MacKinnon, Butterfly Politics, 19–20.
Bibliography
Baker, Carrie N. The Women’s Movement Against Sexual Harassment. New York: Cambridge University Press, 2008.
Cochran III, Augustus B. Sexual Harassment and the Law: The Mechelle Vinson Case. Lawrence, KS: University of Kansas Press, 2004.
Crawford, Bridget J., Kathryn M. Stanchi, and Linda L. Berger. “Feminist Judging Matters: How Feminist Theory and Methods Affect the Process of Judgment.” University of Baltimore Law Review 47 (2018), www.digitalcommonspace.edu/lawfaculty/1089
Hoff, Joan. Law, Gender, and Injustice. New York: New York University Press, 1991.
Kessler-Harris, Alice. Out to Work: A History of Wage-Earning Women in the United States. New York: Oxford University Press, 2003.
MacKinnon, Catharine A. Butterfly Politics. Cambridge, MA: Belknap Press, 2017.
MacKinnon, Catharine A. and Reva B. Siegel, eds. Toward a Feminist Theory of the State. Cambridge, MA: Harvard University Press, 1989.
MacKinnon, Catharine A. and Reva B. Siegel, eds. Only Words. Cambridge, MA: Harvard University Press, 1993.
MacKinnon, Catharine A. and Reva B. Siegel, eds. Directions in Sexual Harassment Law. New Haven, CT: Yale University Press, 2004.
MacKinnon, Catharine A. and Reva B. Siegel, eds. Women’s Lives. Men’s Laws. Cambridge, MA: Belknap Press, 2005.
Mink, Gwendolyn. Hostile Environment: The Political Betrayal of Sexually Harassed Women. Ithaca, NY: Cornell University Press, 2000.
Saguy, Abigail. What Is Sexual Harassment? From Capitol Hill to the Sorbonne. Berkeley: University of California Press, 2003.
Strebeigh, Fred. Equal: Women Reshape American Law. New York: W.W. Norton & Company, 2009.
←16 | 17→
