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Sexual Harassment


Unwanted sexual attention was imposed on people in no position to refuse it long before sexual harassment was a recognized idea. Sexual harassment seems to be practiced wherever the sexes are materially unequal, which generally they are; its reality in paid work can be traced from the beginnings of industrialization and in unpaid work throughout slavery. Until the mid-1970s, it had no name.

The women's movement of that period brought many obscured and unnamed harms long inflicted on women to social consciousness, stimulating political intervention and legal action. In this context, unwanted sex began to be resisted in the United States within the framework of an analysis of sexual politics, conceptualized by Kate Millett as relations of power on the basis of sex. In this context, Working Women United Institute (first at Cornell University, then in New York City) and others organized against the coercive imposition of sexual demands with impunity on women in workplaces.

Building on this activism, sexual harassment of working women was theorized by Catharine MacKinnon as a form of sex inequality that drew its power from a gendered dominance that was sexual combined with a workplace hierarchy that was economic. Sexual harassment was argued to be a form of discrimination on the basis of sex under federal equal employment laws in the United States. Federal courts initially rejected this legal argument, then accepted it in 1977 in the breakthrough ruling of Barnes v. Costle. The Equal Employment Opportunity Commission's 1980 guidelines codified this ruling in an influential formulation of harassment on the basis of sex as a violation of federal antidiscrimination law when "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature [are made] a term or condition of … employment [or] submission or rejection of such conduct … is used as the basis for employment decisions ... [or] such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Sexual harassment became the first accepted legal concept to be defined by women based on their experience of victimization.

Framed as a civil right, the right not to be sexually harassed under United States law was extended from employment to education, from opposite sex patterns to same-sex situations to harassment on other grounds, and came to encompass sexand race-based harassment combined. Through well-publicized claims against powerful men in public life, sexual harassment became a household word. By the turn of the twentieth century, legal systems around the world and international law had recognized that the human right to equality included not being sexually harassed.

The original debate centered on whether or not unwanted sex imposed under unequal conditions—whether as a quid pro quo, meaning in exchange for benefits, or as a hostile environment, meaning as a constant condition requiring tolerance or exit—should be subject to civil suits. What kind of violation was sexual harassment, if it was one at all? Advocates for survivors argued that it was imposed on women because they were women, thus was a form of sex-based discrimination, a status injury based on gender (the social form sex takes) of which unequal undesired sexual practices were a part. Courts that initially rejected this argument thought of sexual harassment as part of sexuality, hence personal, individual rather than gendered in the group-based sense, private, not properly regulable by public means, and biological, not social but natural and inevitable. As sexual, it was imagined inherently free and equal: nonexploitative, incapable of being socially stereotyped or scripted, intrinsically separate from social rank orderings. This sexual essentialism was authoritatively rejected when courts accepted the analysis that sexual harassment is sex-based discrimination: not personal, social; neither biological nor inevitable; the exploitative social imposition of inferiority on the group ground of sex, an injury of status as well as treatment.

The reasons the legal claim for sexual harassment was initially controversial continue, in ever-changing form, to operate as backlash and undertow in social and legal discussions of the subject. The debate over the place of sexuality in gender inequality, although authoritative resolved, has not gone away. It has continued to drive critical commentaries, to underlie public disputes, and to animate legal controversies, often taking the form of opposition to the hostile environment claim. Sexuality as such remains defended by some as inherently a sphere of freedom properly off limits to the law, while being scrutinized by others as a site of sex inequality, specifically of male dominance, propitious to abuse and in need of public exposure and redress.

Entrenched positions on these deeper questions shaped public conflicts and public dialogue through episodes that proved decisive in public consciousness. When Professor Anita Hill accused then-Judge Clarence Thomas in the fall of 1991 of what amounted to sexual harassment in his confirmation hearing for Justice of the Supreme Court of the United States, many of the attacks on her and on the validity of the inquiry proceedings took the view that sexual goings-on did not belong in a Senate hearing or in a confirmation debate, or were not sufficiently severe to be worthy of concern. When Paula Jones accused then-President Bill Clinton in 1996 of having sexually harassed her when she was employed by the state of which he was governor, much of the hue and cry centered on the appropriateness or not of public airing of what were minimized as his sexual peccadilloes, as well as the fact that the allegations involved a single incident, which was minimized as not severe, although it was alleged to include unwanted sexual touching and indecent exposure. Trivializing sexual attacks because they are sexual remains an ideological feature of the discussion of such incidents. Far less public attention was visited on the U.S. Supreme Court decision in 1998 that public schools need not pay for the sexual injuries teachers inflicted on their students unless the abuse had been properly reported and the school had deliberately been indifferent to it—an exceedingly low standard of requisite institutional responsiveness. The Court's treatment of sexual use of young students by adult teachers reflected an ideology of sexuality as essentially private misbehavior for which public authorities were unaccountable unless put explicitly on notice.

If sexual harassment's conceptual resonance with women worldwide has propelled its acceptance, political organizing and legal acceptance has promoted its legitimacy, and the concept itself has proven adaptable to diverse legal cultures, each aspect of it has produced some debate somewhere. Some countries do not recognize it as sex inequality, as in France, where it is a crime, centering on the quid pro quo form. Israel's sexual harassment provision—the most explicit and far-reaching in the world in extending to all spheres of social life and expressly covering harassment based on sexuality and sexual tendencies as well as sex—is premised on values of dignity as well as equality. German law recognizes harassment only if women object to it, which can be problematic where unequal power exists. The European Community's approach has historically emphasized respect and dignity over equality, with European approaches generally tending to individualize the behavior, ignoring group hierarchies and obscuring the function of sexuality in gender-based discrimination.

In Japan, although the legal claim has been recognized, women continue to experience extraordinary difficulty being valued and believed when they claim they were sexually harassed—as, indeed, women do everywhere. Legal and social constraints on the form that the abuse must take that do not reflect the experience of victims is a globally shared problem, as is valuing the careers of perpetrators above the equality of victims. Perhaps the least legal debate has occurred in India, where the Supreme Court of India has embraced the concept and designed imaginative and aggressive relief for companies to institute. And the inclusion of the concept by interpretation under the Convention on the Elimination of All Forms of Discrimination Against Women has solidified its place in international law.

In the United States, some scholars have urged that unwelcomeness be assumed rather than be required to be proven, on the view that it makes no sense to assume that women at work welcome sexual attention. Some academics have urged courts be more receptive to finding gender-based harassment that is not expressly sexual, a dimension of the legal claim that has always been a part of it, sometimes complaining that too much attention has been devoted to specifically sexual forms of abuse. To reduce controversy in legal decision-making over the hostile environment claim, some jurists have urged that a per se list of acts that constitute hostile environment sexual harassment be devised, typically including sexual assault, sexual threats, and pornography. Other advocates have argued that hostile environment sexual harassment, most of which is verbal or physical expressive behavior should not be legally actionable at all, because it is speech that should be constitutionally protected.

Whether or not the claim for sexual harassment should encompass sexual harassment of gay men and lesbians has produced considerable discussion in the United States. Proponents argue that sexual orientation should not deprive a person of a right from unwanted sexual attention on the basis of sex. Opponents argue that sexual abuse based on sexual orientation is not based on sex. Proponents reply that sexual orientation is itself sex-based, as is abuse based either on the sex or the sexual orientation of the victim, whether same-sex or not. There is also some concern on both sides that harassment claims premised on a same-sex sexual orientation, if permitted, could become a pretext for unfounded or bigoted claims.

Perhaps most significantly, the fact that the idea of sexual harassment is widely recognized as defining a violation does not mean that it no longer happens—far from it. It is also far from actionable wherever it occurs, including on the street and in the home. And for survivors, challenging the behavior is not yet safe or without cost. Although protections against retaliating against them proliferate, studies indicate that women are often better off not resisting the abuse than challenging it, which is no doubt the reason that reporting rates continue to be low. Perpetrators often protect one another. Institutions often elude responsibility. Victims seldom receive effective support and relief. Despite the strides toward eliminating this form of sex-based abuse, the history of the idea of sexual harassment continues to be a short chapter in the longer history of its practice.

Catharine MacKinnon

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