Workplace Sexual Harassment Law: A Primer
From New York Times articles breaking the silence on long-standing harassment by major Hollywood power players to raw and confessional #MeToo posts on social media to meditative essays on male monstrosity in the Paris Review, everyone and their mother has written about sexual harassment in 2017. Time even named “The Silence Breakers” as the magazine’s Person of the Year. Given the recent deluge, it may seem that the gravity of workplace sexual harassment is coming to light for the first time. But there is a long history of lawyers and activists fighting against the sexual coercion of women in the workplace. It feels important at this moment to understand how we got here. As feminist scholar and Yale law professor Reva Siegel urged in 2003, examining sexual harassment in its historical context “allows us to ask some fundamental questions about the nature of the practice…and the rules and rhetorics by which the law constrains — or enables — the conduct in question.”
While the term “sexual harassment” was not coined until the 1970s, the practice dates back to our country’s beginnings. Sexual coercion was an inherent feature of slavery, routinely faced by African-American women without legal recourse. Likewise, accounts of women employed in clerical and manufacturing jobs up into the early 20th century suggest that men frequently imposed sex on the women who worked for them. The public most often blamed the women themselves (a centuries-old impulse): “both slaves and domestic servants were often judged responsible for their own ‘downfall’ because they were promiscuous by nature,” Siegel wrote. However, there was also a line of public commentary on the other side. Helen Campbell wrote in 1887 that “[h]ousehold service has become synonymous with the worst degradation that comes to woman.” Upton Sinclair likewise condemned sexual coercion faced by low-wage workers in his 1905 expose, The Jungle.
The American legal system, however, offered women little to no protection from sexual harassment at work. While rape was a crime, the criminal law did not protect slaves from rape and defined it so narrowly that women could not reasonably expect the men who took sexual advantage of them to be sanctioned. After finding a man who sexually assaulted his 14-year-old servant innocent, New York’s high court explained in 1874: “If consent, though not express, enters into her conduct, there is no rape.” Siegel explained that unless women could prove they had performed “an elaborate ritual of resistance,” there was no recourse in criminal law. Making matters worse, prosecutors and judges relied on race- and class-based stereotypes about the “promiscuous” natures of women in domestic service and similar jobs.
Tort law was only slightly more effective in combating sexual assault at work. In common law, sexual assault gave rise to an action for damages only when it inflicted injury on a man’s property interest. Because women were thought to belong to men (father, husband, slave owner), sexual assault cases often positioned the man as the victim, the woman his vandalized property. By the early 20th century, American law began to recognize a woman’s right to recover from her own sexual injury, but rarely did women prevail in court. However, early feminist, labor, and abolitionist movements continued to indict the practice. Henry Wright described South Carolina in 1858 as “one great legalized and baptized brothel,” while women’s moral reform societies campaigned for state legislatures to enact penalties for “seduction.”
By the mid-1970s, second-wave feminists were beginning to discuss the magnitude of oppression faced by working women. At that point, no court recognized even outright requests for intercourse in exchange for employment as a form of sex discrimination. “Although requiring sexual favors as quid pro quo for job retention or advancement clearly is unjust,” law professor Christine Godsil Cooper wrote in 1979, “the task of translating that obvious statement into legal theory is difficult.” Professor Cooper was writing in the context of reviewing Catharine MacKinnon’s watershed book, Sexual Harassment of Working Women: A Case of Sex Discrimination. MacKinnon played a crucial role in transforming sexual coercion from a distressing fact of the working world into an illegal practice.
In April 1975, while a law student at Yale, MacKinnon attended a consciousness-raising session held by Lin Farley where the term “sexual harassment” was coined. There, MacKinnon learned of an administrative assistant at Cornell University who was refused a transfer when she complained of her supervisor’s sexual advances and was then denied employment benefits when she resigned because she left the job for “personal” reasons. Inspired by this account and others, MacKinnon began drafting Sexual Harassment of Working Women. This book helped persuade the American judiciary that sexual harassment constituted a form of sex-based discrimination.
In Sexual Harassment of Working Women, MacKinnon defined “sexual harassment” as the “unwanted imposition of sexual requirements in the context of a relationship of unequal power.” She argued that working women were sexually harassed because they were women, which made sexual harassment a form of gender-based discrimination. While working on the book, MacKinnon shared draft copies with attorneys litigating early sexual harassment cases. Her theory was first tested in Alexander v. Yale in 1980. At that point, Title IX, which dictates that educational opportunities may not be denied on the basis of sex, was still fairly new and pertained mostly to sports.
In Alexander, Yale students claimed that male professors had propositioned female students for sex in return for better grades. The lead plaintiff was threatened with arrest for libel after reporting one professor’s advances to the administration. The Second Circuit held that the students did not have standing to bring the suit because they had graduated, and one student’s claim of a “quid pro quo” case was denied because she never actually received better grades. However, the Second Circuit recognized that under Title IX, schools must address sexual harassment as a form of sex discrimination, prompting the ACLU to declare the case a “pivotal moment in Title IX history.” Moreover, in 1978, Yale established a harassment grievance board, and hundreds of colleges followed its lead.
In 1986, MacKinnon litigated on behalf of the plaintiff in what feminist scholar and Berkeley law professor Lauren Edelman called the biggest legal advancement for women in the realm of sexual harassment in her career: Meritor Savings Bank v. Vinson. This was the first case to hold that sexual harassment could constitute sex discrimination. There, Mechelle Vinson claimed the bank’s vice president forced her to have sex with him and demanded sexual favors at work and fired her when she refused. Arguing on Vinson’s behalf, MacKinnon contended that such conduct created a “hostile work environment,” a form of illegal discrimination under Title VII of the Civil Rights Act of 1964. In concluding that sexual harassment may violate sex discrimination laws, the U.S. Supreme Court held that Title VII was not limited to economic or tangible discrimination; rather, it found Congress’ intent was to “strike the entire spectrum of disparate treatment of men and women in employment.” The Court further distinguished between two types of sexual harassment: quid pro quo, where direct sexual requests are made as a condition of employment or benefits, and hostile environment, where the conduct is not directly tied to any benefit yet creates an unbearable atmosphere.
In 1993, the U.S. Supreme Court took Meritor a step further in Harris v. Forklift Systems, holding that if a workplace is permeated with behavior that is severe or pervasive enough to create a discriminatorily hostile or abusive working environment, Title VII is violated regardless of whether the plaintiff suffered psychological harm. Although not fatal to the claim, however, a lack of proven job detriment weighs against the plaintiff’s ability to prove a hostile work environment.
Feminist scholar and Yale Law School professor Vicki Schultz wrote in 1998 that feminists had “inspired a body of popular and legal opinion condemning harassment in a [remarkably] brief period of time.” This achievement, however, was limited because she believed the problem had not been described in sufficiently broad terms. In her groundbreaking article “Reconceptualizing Sexual Harassment,” Schultz wrote that the prevailing paradigm for understanding sexual harassment envisions only one scenario: a male supervisor’s sexual advancements on a less powerful female employee. This narrow conceptualization, she argued, excludes wide-ranging harassment, such as men criticizing women’s performance or doubting their ability to do the job, providing condescending aid, withholding information, isolating women from social networks, assigning women gender-stereotyped service tasks, and hazing women in the workplace to make them feel they don’t belong. Schultz told me that men have harassed female co-workers by putting rats in their lunch boxes, placing lime in their uniforms, physically assaulting them, and sabotaging their work. Male bosses, she continued, have forced female employees to submit to a range sexist behaviors, including demands for cooking and cleaning, and demeaning comments about women’s clothing or personal lives. For these reasons, Schultz wrote that often workplace sexual harassment has “nothing to do with sexuality but everything to do with gender.” Rather than sexuality, Schutz argued, harassment law should be focused on conduct that constricts women to gendered work roles that negatively impact their careers.
This type of gender-based but nonsexual workplace harassment is showcased perfectly on Issa Rae’s Insecure, on which the young lawyer Molly works tirelessly to win the approval of the elderly white male partners but is excluded and ignored because she doesn’t play golf. (Later in the season, after receiving the paycheck of a white male co-worker by mistake, Molly learns she is not being paid equitably for her work.) It also resonates with my own experience. Being objectified in the workplace has never personally bothered me; rather, I’ve seen it as a type of power, the ability to render men into unthinking, drooling animals. Instead, I’ve been most upset by the type of harassment Schultz describes: being mansplained to, having my ideas dismissed or stolen by a man who can say them more forcefully, and being made to feel that I don’t belong in a professional setting.
Schultz concluded that this type of broad sexual harassment is a major contributing factor to sex-segregated employment because it pushes women out of fields populated by men at disproportionate rates. She told me that sex-segregated employment, in turn, feeds sexual harassment because the absence of women in male-dominated fields causes men to develop a sense of ownership over the work and a belief that women do not belong. And when the authority structure of a company is “vertically stratified,” with mostly men supervising female subordinates, it encourages the men in power to develop a sense of ownership over not just the work, but also the women who work for them. Most of the industries in which sexual harassment allegations have been exposed in recent months, including Hollywood, Silicon Valley, and Washington, are all heavily stratified industries. The lack of women at the top, Schultz told me, means there aren’t enough women peers to “challenge this sense of masculine prerogative.”
“‘Reconceptualizing Sexual Harassment’ sparked a revolution” in how sexual harassment is viewed in both the law and the academy, Schultz explained. Today, scholars define sexual harassment more broadly and understand that the conduct need not be sexual in nature, but rather can be any type of conduct directed at someone because of their gender that can be used to create a hostile work environment or quid pro quo. Numerous important judicial decisions have acknowledged this point, Schultz told me, as has the Equal Opportunity Employment Commission (EEOC). Moreover, many companies have amended their harassment policies to include all types of sex-based harassment. According to law professor Jessica Clarke, sexual harassment law has not changed much since Schultz’s article in 1998. (That year, the U.S. Supreme Court also famously recognized in Oncale v. Sundowner Offshore Services, Inc. that Title VII applies to same-sex sexual harassment; Schultz told me her article was circulated to the justices in page proofs while the case was pending.)
Decades later, workplace sexual harassment remains rampant (as has been made painfully clear in the recent news cycle). According to a 2016 EEOC report, 25 percent of American women say they have experienced workplace sexual harassment. Professor Edelman told me the 1998 cases Faragher v. Boca Raton and Burlington Industries v. Ellerth — in which the Supreme Court created an affirmative defense that allowed employers to escape liability in many sexual harassment cases simply by having an anti-harassment policy and a complaint procedure in place — created a major barrier to challenging sexual harassment in court. Edelman has argued that in many cases, “policies and procedures exist alongside a culture in which harassment and aggradation of women are common.” She told me that courts often fail to distinguish between legitimate compliance efforts and purely symbolic policies that fail to protect employees’ legal rights. Schultz echoed this sentiment. While most companies have adopted policies and procedures to prohibit and redress sexual harassment, they typically define sexual harassment in misguided ways, and their procedures are often inadequate. She told me that larger problems of sexism and unchecked authority remain the root of the problem, and company policies tend not to address these issues.
When I asked Clarke about the biggest challenge to women currently in terms of addressing workplace sexual harassment, she responded: “Why would a woman bring a sexual harassment claim when she stands to gain so little — most recoveries in employment discrimination cases are small — and lose so much? Victims are often blamed, and the litigation process is emotionally draining.” What’s more, studies have shown that although legal rights may now be more formally available, they are rarely invoked: There is a meaningful difference between what people are entitled to under the law and what they receive in practice.
Arbitration clauses in employment contracts — which are often only a few words and can be easy to miss — remain a major barrier to women gaining legal redress. These agreements dictate that disputes between parties be settled by an arbitrator (typically a retired judge) and often contain nondisclosure provisions. Even at-will employees can be compelled into arbitration through clauses. UCLA law professor Katherine Stone said that a person doesn’t always need to have signed something to be bound by an arbitration clause; it could be in the same materials that told you where your parking space is.
The EEOC has always maintained that “mandatory arbitration of employment discrimination is bad: the secrecy, the lack of precedent.” Courts, not arbitrators, are responsible for the development and interpretation of the law, and the public nature of the judicial process ensures that discrimination laws are properly interpreted and applied. Mandatory arbitration agreements, by contrast, privatize enforcement of federal employment discrimination laws, thus undermining public enforcement of the laws. Moreover, research demonstrates that arbitration payouts are significantly smaller than what plaintiffs might receive in court. The commission has litigated against these agreements numerous times and lost.
After TV news anchor Gretchen Carlson sued Fox News chairman and CEO Roger Ailes for sexual harassment, she received a $20 million settlement, which was much higher than what she could have received under arbitration. In Carlson’s case, Fox’s arbitration clause was particularly bad: Her legal team would have had limited discovery and little recourse for appeal and would be forced to remain silent about all proceedings. Employment and civil rights attorney Cliff Palefsky said, “This is not just an arbitration clause, it’s an extraordinary overbroad gag order.”
Carlson wrote for the New York Times that she went public about her experience for other women who faced similar circumstances. Emily Peck wrote for the Huffington Post this summer, “When sex discrimination cases are fought publicly, there is a tremendous halo effect.” Shortly after Carlson’s suit, six additional women came forward claiming that Ailes had sexually harassed them and explicitly demanded sexual favors in exchange for job opportunities; by July, 25 women had come forward with similar claims against Ailes. Likewise, this October, CNBC published “The Weinstein Ripple Effect,” an article explaining how the Times story empowered an eventual 82 victims to come out against Weinstein. In addition, victims came out against prominent public figures Charlie Rose, Louis C.K., Kevin Spacey, Bill O’Reilly, Terry Richardson, and many more.
The year after Anita Hill testified that Clarence Thomas sexually harassed her, sexual harassment complaints to the EEOC increased by 50 percent. Lauren Edelman told me the Anita Hill hearings were one of the two major social advancements for women in the realm of addressing sexual harassment, the other being the “recent wave of #MeToo allegations, which seem to have broken the cultural barrier in which, up to now, women’s allegations were not taken seriously and most women were afraid to complain.” As has been made clear in recent months, denouncement of sexual harassment catalyzes a positive feedback loop of reporting.
But much more has to be done. As the Huffington Post reported this fall, while women speaking out have destroyed powerful men’s careers in various high-powered industries, “much less attention has been paid to the rampant harassment in blue-collar workplaces, particularly the hotel industry.” Sadly, this echoes Helen Campbell 1887 commentary that “[h]ousehold service has become synonymous with the worst degradation that comes to woman.” If A-list actresses face sexual coercion in a private hotel suite, the Huffington Post wrote, “imagine the vulnerability of an immigrant woman cleaning the room alone, for minimum wage, plus tips.” Labor leader Maria Elena Durazo has fought for the use of panic buttons in employer contracts and is now lobbying city councils to legislatively mandate them. More important, Durazo said, women must be given “the ability to speak up, without having to risk their livelihood.” Despite the industry, a resounding goal among activists is to equalize the power imbalance between perpetrators and victims, whether it be gender-based, economic, or a combination of both. Schultz told me that moving forward, the goal is to create workplaces in which women and men are treated equally at every level, and no on has unfettered power that can be readily abused.
History suggests our conception of what constitutes workplace sexual harassment will evolve as society progresses. As Siegel wrote in 2003, “Just as discrimination ‘on the basis of sex’ shifted in meaning during the 1970s and 1980s as courts began to recognize harassment as discrimination, it continues to evolve in our own day[.]” But if one thing has been made obvious in 2017, it’s that breaking the silence has immense power. And when women allow our rights to remain idle, we diminish the power of law to shape meanings, opportunities, and practices.
Anna Dorn is a writer and attorney living in Los Angeles.