Recent Thinking about Sexual Harassment: A Review Essay

Abstract

Twenty-five years ago, Catharine MacKinnon made her pathbreaking argument that sexual harassment constitutes sex discrimination under Title VII of the 1964 Civil Rights Act.1 Her work entrenched a paradigm of sexual harassment as sexual conduct that men impose on women because they are women. Since then, a variety of plaintiffs whose complaints do not fit this paradigm have sought relief under antidiscrimination law. These include women who have been harassed in nonsexual ways; gays, lesbians, and transsexuals who have been harassed on account of their sexual orientation and identities; and heterosexual men who have been bullied by other men. This proliferation of claims has challenged MacKinnon’s original model and given rise to new theories of sexual harassment. This review essay considers recent approaches to understanding sexual harassment, taking Catharine MacKinnon and Reva Siegel’s Directions in Sexual Harassment Law as a primary guide. This work comprises nearly forty concise contributions from leading legal academics and lawyers active in sexual harassment litigation. It offers a trenchant and insightful survey of the most important recent developments concerning sexual harassment, including theories that have been devised for legal codes in other countries.2 Theories of sexual harassment have, to varying degrees, attempted to satisfy three desiderata: to provide a normative account of what is wrong with sexual harassment; to offer sociological insight into the causes, effects, and meanings of sexual harassment; and to fit complaints of sexual harassment to legal remedies. I shall argue that these desiderata are in tension with one another. Sexual harassment is not a unified phenomenon, either normatively or sociologically. Our understandings of its nature and its wrongs have sometimes been distorted by the attempt to fit them into available legal remedies. This is understandable, given that most writing about sexual harassment is by legal academics and lawyers, who have sought theories that can help victims gain relief. The new theories of sexual harassment are best understood in contrast with MacKinnon’s original theory. MacKinnon defined two types of sexual harassment, both subsequently recognized as prohibited by Title VII of the Civil Rights Act of 1964 by the Supreme Court in Meritor Savings Bank v. Vinson.3 Quid pro quo: a supervisor conditions the job, pay, promotion, perks, or other material benefits of work on the employee’s submission to sexual intercourse, groping, or other forms of “verbal or physical conduct of a sexual nature”4 (for example, ogling, genital exposure, having to listen to sexual fantasies), by the supervisor, coworkers, or customers. Hostile environment: an employee is subject to unwelcome sexual conduct by the employee’s supervisors, coworkers, clients, or customers, with “the purpose or effect of unreasonably interfering” with the employee’s ability to work, or “creating an intimidating, hostile, or offensive working environment.”5 MacKinnon analyzed sexual harassment as a consequence and expression of gendered inequalities of work. Sex segregation at work consigned women to poorly paid, subservient “female” jobs (secretary, waitress, nurse, domestic servant, flight attendant) that invited their sexual objectification, from dress codes that required them to appear sexually alluring, to tasks that required them to serve men’s personal needs, to norms that expected them to smilingly accept abuse. Men exploited this vulnerability to sexually subordinate them: to treat them as sexual objects, fit for sexual use regardless of their wishes. Sexual harassment was sex discrimination because it forced upon women a socially inferior role through their sexual subordination to men.6 MacKinnon correctly anticipated that the courts would not view the wrong of sexual harassment in terms of female sexual subordination. So she supplied an alternative “differences” account, based on the Title VII criterion of differential treatment, that explained how sexual harassment was sex discrimination. On this account, sexual harassment was wrong because it treated women differently from men: it singled them out on the basis of their sex (that is, as females) for deleterious treatment to which males were not subjected.7 The post-Meritor judiciary, imperfectly following this account, established a standard paradigm of sexual harassment. In the paradigm case (1) the harasser is male, the victim, female; (2) the harassment expresses the harasser’s sexual desires; (3) it consists in unwelcome sexual conduct; (4) it targets the complainant. This model assumed that sexual harassment expresses a natural heterosexual desire of men for women gone overboard. It is courtship turned boorish. The courts imagined that the typical forms of harassing conduct were sincere sexual propositions, sexual compliments, and requests for dates: acts that would be innocent had they been welcome by their targets. Sexual harassment was sex discrimination on the presumption that the harassers were heterosexual, and so subjected female workers to sexual attention that they were not imposing on male workers. The standard paradigm took heterosexual desire, rather than sex-role stereotyped sexual subordination, as the key element turning sexual harassment into sex discrimination. It identified the wrong of sexual harassment with its differential treatment of men and women, whereas MacKinnon located the wrong in the subordination of women as women. Yet it shared with MacKinnon’s analysis a common, narrow focus on sexual conduct by men that targets women. The narrow focus of both models appeared to exclude diverse types of conduct that many find objectionable, even though they implicate the sexuality or gender identity / orientation of their victims. Recent thinking about sexual harassment has been inspired by people who object to sex- and gender-related conduct that appears to fall outside the scope of the standard paradigm. Here are some typical types of deviating cases: Gender harassment: coworkers of any rank engage in verbal and physical conduct, not necessarily sexual, that expresses hostility toward women holding “men’s” jobs and denigrates the feminine, with the intent or effect of undermining victims’ ability to do their jobs. For example, coworkers might address a female firefighter as a “damn bitch,” tell her that a man is needed for her job, and assert that her femininity makes her incompetent. Her coworkers might sabotage her equipment, refuse to train her, and refuse to integrate her into the informal social life of the workplace (for example, eating common meals in the firehouse). Her supervisor might assign her to “female” tasks not part of the normal job description (for example, secretarial work), assign her to undemanding tasks, or assign her impossible tasks and write negative reviews of her performance. Her subordinates might refuse to take orders from her.8 Gender policing: coworkers of any rank engage in verbal and physical harassment of gender nonconformists—of masculine women and effeminate men. For example, coworkers might accuse a muscular woman of being a lesbian (regardless of her known sexual orientation), or suggest that she has a penis. Men may harass other men perceived to be effeminate. A sexually shy man who has not had a girlfriend might be ridiculed for his sexual naiveté, subjected to “bagging” (grabbing his testicles), threatened with rape, or forced to his knees while a broomstick is shoved into his anus.9 Sexual orientation / identity harassment: coworkers of any rank harass employees for being gay, lesbian, transsexual, or queer in other ways. Harassment may include both sexual taunting and assault, and nonsexual conduct. “Horseplay”: male coworkers bully and haze other workers, forcing them to submit to sexual and nonsexual battery, assault, and insult, including bagging, goosing, genital exposure, genital taunting, running a gauntlet, mock rape, and wrestling. Pornographic workplace: coworkers fill the workplace with sexually objectifying representations of women. This includes display of pornography and open discussion of what the workers or others have done, and fantasies of what they would like to do sexually to women. Sexual banter and flirtation: coworkers tell sexual jokes, flirt, date, and playfully tease one another in sexually explicit ways. Rumors fly about their sexual relationships, infidelities, and breakups. Although the targets of these forms of conduct do not object, other coworkers exposed to such open, sexually explicit conversations and activities find them offensive and unwelcome. Consider how these cases deviate from the standard paradigm and from MacKinnon’s original analysis. Gender policing, sexual orientation / identity harassment, and horseplay are commonly practiced by men on other men. Neither these types of harassment, nor gender harassment, necessarily express sexual desire. Gender harassment, gender policing, and sexual orientation / identity harassment impose sexist standards on others (in treating women, femininity, or feminine people as inferior, or in forcing people to conform to sex-role stereotypes), but not necessarily by means of sexual conduct. Horseplay, similarly, does not always involve sexual conduct. The pornographic workplace does not target the complainant, although it sexually objectifies members of her sex. Both it and sexual banter raise questions of bystander standing: may an offended witness of sexually explicit speech and conduct, who is not targeted, sue for sexual harassment? Confronted with such deviating cases, some courts have haltingly revised the standard paradigm. Scattered rulings over the past twenty years recognize sexual harassment claims under Title VII in cases of male-on-male gender policing,10 pervasive displays of pornography used to harass the plaintiff,11 gender harassment of women by means of nonsexual conduct,12 sexual orientation harassment of gay men,13 and adverse employment actions taken against transsexuals for their failure to conform to gender stereotypes.14 But the law is unsettled in these types of cases and often lacks a coherent rationale. The difficulty is that although many people find the conduct in these cases to wrongly victimize others, and demand a legal remedy for these wrongs, it is not evident that these wrongs always amount to sex discrimination. I shall argue that alternative laws aimed at securing the dignity and autonomy of workers and students would offer more coherent and comprehensive remedies for some wrongs now alleged to constitute sex discrimination. Three fault lines run through the controversies over how to conceive of the wrong of sexual harassment. First, does the core wrong of sexual harassment consist in an injury to groups, or to individuals? Second, does it consist in sexism, understood as male dominance, or sex discrimination in a symmetrical sense (in which men and women may play interchangeable roles in any sexist act), or the oppressive enforcement of conventional norms of gender, sexual orientation, and sexual expression, or the violation of conventional norms of respect for individuals? (By implication, are the primary victims females, sex groups [males and females alike], or anyone who deviates from conventional norms of gender and sexual orientation, or anyone at all, irrespective of group membership?) Third, does “conduct of a sexual nature” figure more as a problem to be regulated, more as a liberty to be protected, or more as a sideshow to understanding sexual harassment? Different theories’ answers to these questions shape the scope of what they see as sexual harassment. The group-based theories may be called equality theories, because they view the core interest injured by sexual harassment to be equality among social groups. MacKinnon’s equality theory offers a tight-knit set of answers to the three questions above: the core wrong of sexual harassment consists in a group injury, the subordination of women by men, which is achieved primarily through sexual conduct. Sexual harassment is part of the spectrum of forms of sexual conduct, including also rape, prostitution, and pornography, that keep women subordinate, not just sexually, but economically, politically, and socially. Since the main goal of this theory is the abolition of female sexual subordination (with the expectation that women’s other disadvantages will fall in its wake), call this view the sexual equality theory of sexual harassment. Many feminists believe that MacKinnon’s focus on sexual offenses against women is a distraction from more important causes of women’s disadvantages, such as their concentration in poorly paid jobs, gender roles that assign them the bulk of unpaid housework and dependent care duties, and nonsexual forms of sex discrimination, such as refusal to hire, train, and promote women on the same terms as men. They agree with MacKinnon that the chief wrong of sexual harassment is a group injury, and consists in male domination of women. They stress the economic consequences of harassment, however, and treat as irrelevant whether the harassing conduct is of a sexual or nonsexual nature. Since the main goal of this theory is the abolition of women’s economic disadvantages, call this view economic equality theory. The “differences” theory adopted by the courts agrees with MacKinnon that the core wrong of sexual harassment is a group injury, and that the harassment manifests sexism. But it understands sexism as discrimination on the basis of biological sex, which men and women may suffer alike. Hence, despite its initial reliance on the standard paradigm, it is readily extended to sex-reversed cases, such as female-on-male quid pro quo sexual harassment. Because its model of inequality abstracts from the real-world asymmetry of victimization—the fact that most victims of sexual harassment are female—and treats men and women as interchangeable in its formula for sex discrimination, call this view formal equality theory. Theories that view the core wrong of sexual harassment as an injury to individuals divide into two broad types, depending on whether they represent the injury as an oppressive enforcement or a violation of conventional norms. Sexual autonomy theories view sexual harassment as an oppressive enforcement of conventional sexist and homophobic norms of gender and sexuality. It forces people to conform to these norms, and punishes anyone who deviates: masculine women, effeminate men, gays and lesbians, transsexuals, and anyone else who expresses an unconventional sexuality or sexual identity. These theories seek to protect individual freedom of sexual expression. Dignity theories abstract from the possibly sexist or homophobic intent and effects of harassing behavior, locating the wrong instead in the means harassers use to achieve their objectives. On this view, sexual harassment is wrong mainly because it intimidates, torments, and humiliates people, not because it does this more to some groups than others, or does these things in the name of enforcing conventional norms of gender and sexuality. Dignity theories uphold conventional norms of respect for individuals, rather than challenging conventional norms of gender and sexuality. These theories take opposing positions on the significance of sexual conduct at work and school. The sexual and formal equality theories, tied to the standard paradigm, view certain types of sexual conduct as the main problem. Although they do not condemn all sexual expression as sexist, in practice they do not accord any positive value to sexual conduct at work and school. Hence, they offer no protection against overbroad regulations of sexuality in these settings. Dignity theory, insofar as it views modesty as a component of dignity, also supports strong regulation of sexuality at work and school. Sexual autonomy theorists fear that the sexual regulation permitted by these theories threatens sexual autonomy, especially for people with queer sex / gender identities. Only by recognizing sexual autonomy as a positive value can sexual harassment law avoid reproducing the harm that sexual harassment itself inflicts: the imposition of conventional heterosexist norms on sex / gender deviants. Economic equality theory draws attention away from sexual conduct to nonsexual harassing behavior, which it regards as more pervasive and damaging. Hence, it is less restrictive of sexual expression than MacKinnon’s theory, and more compatible with the goals of sexual autonomy theory. In the following discussion, I shall argue that no single theory of sexual harassment accounts for all of the valid moral and legal claims that can be raised in the cases. The equality (antidiscrimination) frame for understanding sexual harassment that is dominant in the United States offers a stilted account of and incomplete protection for people’s dignitary and autonomy interests. We have constructed the phenomena around the available legal remedies, rather than around a comprehensive normative account of the wrongs at stake. Nevertheless, feminists are right to see the majority of cases as expressions of male dominance. Dignity theory, which neglects the systematic character of most sexual harassment, offers an unsatisfying sociological account of most cases, although it has impressive normative scope. And while MacKinnon exaggerates the causal significance of sexual conduct for explaining the subordination of women, her theory, suitably extended, identifies a strong cord that runs through a surprising variety of sexual harassment cases, although not all of them. Dignity theory locates the core wrong of sexual harassment in the abusive means harassers use to advance their ends, rather than in the sexist or heterosexist intent or effects of their conduct. On the dignity account, what is wrong about sexual harassment is that it coerces, threatens, torments, intimidates, insults, humiliates, and degrades its victims. These are dignitary injuries, harms to an individual’s standing as a person.15 Dignity theory offers the most conservative account of the wrong of sexual harassment, because it does not challenge conventional norms of gender and sexuality. Hence, it is potentially capable of persuading everyone, even advocates of male dominance and conventional sexual morality, that sexual harassment is wrong. Dignity theory also has the widest scope, covering all of the types of cases claimed as sexual harassment.16 Men and women alike can suffer a dignitary injury at the hands of any person, male or female. Hence, dignity theory can cover male-on-male horseplay, which is not obviously discriminatory.17 It does not privilege sexual over nonsexual injuries. Hence, it can recognize nonsexual gender harassment and policing as wrong. Conventional understandings of dignity incorporate norms of modesty. A person may feel her dignity affronted not just by references to her own sexuality, but by any references to anyone’s sexuality. Dignity theory can therefore comprehend complaints over sexual banter and the pornographic workplace. The wide scope and persuasive appeal of dignity theory would not be normative advantages if they did not pick out genuinely objectionable features of the cases. But they do. Acts that coerce, torment, intimidate, and humiliate people are morally objectionable. Even dignity theory’s controversial inclusion of modesty interests is reasonable from a moral point of view. It is obnoxious to subject people to pornography and sexual banter when the hearers find them deeply offensive and have no ready means of avoiding them. (As we shall see below, however, whether such morally objectionable conduct should be subject to legal regulation is another matter.) Dignity theory claims an advantage over all equality theories. Equality theories offer a remedy against sexual harassment

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 61 citations exist upstream.

Papers that cite the same references — the relational fallback while embeddings are still backfilling.