Sex Is the Least of It
Let's Focus Harassment Law on Work, Not Sex
by VICKI SCHULTZ
The Clarence Thomas hearings, the Tailhook incident, the Gene McKinney trial, the Clinton scandals--if these events spring to mind when you hear the words "sexual harassment," you are not alone. That such images of powerful men making sexual come-ons toward female subordinates should be the defining ones simply proves the power of the popular perception that harassment is first and foremost about sex. It's easy to see why: The media, the courts and some feminists have emphasized this to the exclusion of all else. But the real issue isn't sex, it's sexism on the job. The fact is, most harassment isn't about satisfying sexual desires. It's about protecting work--especially the most favored lines of work--as preserves of male competence and authority.
This term the Supreme Court heard three cases involving sex harassment in the workplace. Along with media coverage of current events, the Court's decisions will shape our understanding of this issue into the next century, for all these controversies raise the same fundamental question: Does sex harassment require a special body of law having to do with sexual relations, or should it be treated just like any other form of workplace discrimination?
If the Court decides that harassment is primarily a problem of sexual relations, it will be following the same misguided path some courts have taken since they first accepted that such behavior falls under the prohibitions of Title VII of the Civil Rights Act, the major federal statute forbidding sex discrimination in employment. Early decisions outlawed what is known as quid pro quo harassment--typically, a situation where a supervisor penalizes a subordinate who refuses to grant sexual favors. It was crucial for the courts to acknowledge that sexual advances and other interactions can be used in the service of discrimination. Yet their reasoning spelled trouble. The courts said harassment was sex bias because the advances were rooted in a sexual attraction that the harasser felt for a woman but would not have felt for another man. By locating the problem in the sexual character of the advances rather than in the workplace dynamics of which they were a part--for instance, the paternalistic prerogative of a male boss to punish an employee on the job for daring to step out of her "place" as a woman--the decisions threatened to equate sex harassment with sexual pursuits. From there it was a short step to the proposition that sex in the workplace, or at least sexual interactions between men and women in unequal jobs, is inherently suspect.
Yet the problem we should be addressing isn't sex, it's the sexist failure to take women seriously as workers. Sex harassment is a means for men to claim work as masculine turf. By driving women away or branding them inferior, men can insure the sex segregation of the work force. We know that women who work in jobs traditionally held by men are more likely than other women to experience hostility and harassment at work. Much of the harassment they experience isn't "sexual" in content or design. Even where sexually explicit harassment occurs, it is typically part of a broader pattern of conduct intended to reinforce gender difference and to claim work as a domain of masculine mastery. As one experienced electrician put it in Molly Martin's Hard-Hatted Women, "[We]...face another pervasive and sinister kind of harassment which is gender-based, but may have nothing to do with sex. It is harassment aimed at us simply because we are women in a 'man's' job, and its function is to discourage us from staying in our trades."
This harassment can take a variety of forms, most of which involve undermining a woman on the job. In one case, male electricians stopped working rather than submit to the authority of a female subforeman. In another, Philadelphia policemen welcomed their new female colleagues by stealing their case files and lacing their uniforms with lime that burned their skin. Even more commonly, men withhold the training and assignments women need to learn to do the job well, or relegate them to menial duties that signal they are incompetent to perform the simplest tasks. Work sabotage is all too common.
Nor is this a purely blue-collar phenomenon. About one-third of female physicians recently surveyed said they had experienced sexual harassment, but almost half said they'd been subjected to harassment that had no sexual or physical component but was related simply to their being female in a traditionally male field. In one 1988 court case, a group of male surgical residents went so far as to falsify a patient's medical records to make it appear as though their female colleague had made an error.
Men do, of course, resort to sexualized forms of harassment. Sexual overtures may intimidate a woman or label her incompetent in settings where female sexuality is considered incompatible with professionalism. In one 1993 Supreme Court case, a company president suggested that a female manager must have had sex with a client to land an important account. Whether or not the harassment assumes a sexual form, however, what unites all these actions is that they create occupational environments that define womanhood as the opposite of what it takes to be a good worker.
From this starting point, it becomes clear that the popular view of harassment is both too narrow and too broad. Too narrow, because the focus on rooting out unwanted sexual activity has allowed us to feel good about protecting women from sexual abuse while leading us to overlook equally pernicious forms of gender-based mistreatment. Too broad, because the emphasis on sexual conduct has encouraged some companies to ban all forms of sexual interaction, even when these do not threaten women's equality on the job.
How has the law become too narrow? The picture of harassment-as-sex that developed out of the quid pro quo cases has overwhelmed the conception of the hostile work environment, leading most courts to exonerate seriously sexist misconduct if it does not resemble a sexual come-on. In Turley v. Union Carbide Corp., a court dismissed the harassment claim of a woman whose foreman "pick[ed] on [her] all the time" and treated her worse than the men. Citing Catharine MacKinnon's definition of sexual harassment as "the unwanted imposition of sexual requirements in the context of a relationship of unequal power," the court concluded that the case did not involve actionable harassment because "the foreman did not demand sexual relations, he did not touch her or make sexual jokes."
By the same reasoning, in Reynolds v. Atlantic City Convention Center, the court ruled against a female electrical subforeman, Reynolds, whose men refused to work for her, made obscene gestures and stood around laughing while she unloaded heavy boxes. Not long before, the union's business agent had proclaimed, "[Now] is not the time, the place or the year, [nor] will it ever be the year for a woman foreman." When the Miss America pageant came to town, an exhibitor asked that Reynolds be removed from the floor--apparently, the incongruity between the beauty contestants and the tradeswoman was too much to take--and Reynolds's boss replaced and eventually fired her. Yet the court concluded that none of this amounted to a hostile work environment: The obscene gestures that the court considered "sexual" were too trivial, and the rest of the conduct wasn't sufficiently sexual to characterize as gender-based.
These are not isolated occurrences. I recently surveyed hundreds of Title VII hostile work environment cases and found that the courts' disregard of nonsexual forms of harassment is an overwhelming trend. This definitely works against women in male-dominated job settings, but it has also hurt women in traditionally female jobs, who share the experience of harassment that denigrates their competence or intelligence as workers. They are often subjected to sexist forms of authority, humiliation and abuse--objectified not only as sexual commodities but as creatures too stupid or worthless to deserve respect, fit only to be controlled by others ("stupid women who have kids," "too fat to clean rooms," "dumb females who [can't] read or write").
Just as our obsession with sexual misconduct obscures many debilitating forms of harassment facing women, it also leads us to overlook some pernicious harassment confronting men on the job. If the legal cases provide any indication, the most common form of harassment men experience is not, as the film Disclosure suggests, a proposition from a female boss. It is, instead, hostility from male co-workers seeking to denigrate or drive away men who threaten the work's masculine image. If a job is to confer manliness, it must be held by those who project the desired sense of manhood. It isn't only women who can detract from that image. In some work settings, men are threatened by the presence of any man perceived to be gay--for homosexuality is often seen as gender deviance--or any other man perceived to lack the manly competence considered suitable for those who hold the job. The case logs are filled with harassment against men who are not married, men who are not attractive to women, men who are seen as weak or slow, men who are openly supportive of women, men who wear earrings and even young men or boys. Some men have taunted and tormented, battered and beaten other men in the name of purging the brotherhood of wimps and fags--not suitable to stand alongside them as workers.
We have been slow to name this problem sex-based harassment because it doesn't fit our top-down, male-female, sexual come-on image of harassment. In Goluszek v. Smith, the court ruled against an electronic maintenance mechanic who was disparaged and driven out by his fellow workers. They mocked him for not having a wife, saying a man had to be married to be a machinist. They used gender-based images to assault his competence, saying that if he couldn't fix a machine they'd send in his "daddy"--the supervisor--to do it. They drove jeeps at him and threatened to knock him off his ladder, and when he filed a grievance, his supervisor wrote him up for carelessness and eventually fired him. Not only did the court dismiss Goluszek's claim, the judge simply couldn't conceive that what happened to him was sexual harassment. "The 'sexual harassment' that is actionable under Title VII 'is the exploitation of a powerful position to impose sexual demands or pressures on an unwilling but less powerful person,'" the judge wrote. Perhaps lower courts will adopt a broader view now that the Supreme Court has ruled, in the recent Oncale v. Sundowner Offshore Services decision, that male-on-male harassment may be actionable even when it is not sexual in design.
Meanwhile, the traditional overemphasis on sex can lead to a repressive impulse to eliminate all hints of sexual expression from the workplace, however benign. Instead of envisioning harassment law as a tool to promote women's equality as workers, the popular understanding of harassment encourages courts and companies to "protect" women's sexual sensibilities. In Fair v. Guiding Eyes for the Blind, a heterosexual woman who was the associate director of a nonprofit organization claimed her gay male supervisor had created an offensive environment by making gossipy conversation and political remarks involving homosexuality. It is disturbing that current law inspired such a claim, even though the court correctly ruled that the supervisor's conduct was not sexual harassment.
Other men haven't fared so well. In Pierce v. Commonwealth Life Insurance Co., a manager was disciplined for participating in an exchange of sexually explicit cards with a female office administrator. One of the cards Pierce had sent read, "Sex is a misdemeanor. De more I miss, de meanor I get." After thirty years with the company, he was summarily demoted and transferred to another office, with his pay slashed and his personal belongings dumped at a roadside Hardee's. True, Pierce was a manager and he was responsible for enforcing the company's harassment policy. Still, the reasoning that led to his ouster is unsound--and dangerous. According to his superiors, he might as well have been a "murderer, rapist or child molester; that wouldn't be any worse [than what he had done]." This sort of thing gives feminism a bad name. If companies want to fire men like Pierce, let them do it without the pretense of protecting women from sexual abuse.
Equally alarming are reports that, in the name of preventing sexual harassment, some companies are adopting policies that prohibit a man and woman from traveling or staying at the same hotel together on business, or prevent a male supervisor from giving a performance evaluation to a female underling behind closed doors without a lawyer present. One firm has declared that its construction workers can't even look at a woman for more than five seconds. With such work rules, who will want to hire women? How will women obtain the training they need if their male bosses and colleagues can't interact with them as equals?
It's a mistake to try to outlaw sexual interaction in the workplace. The old Taylorist project of purging organizations of all sexual and other emotional dynamics was deeply flawed. Sexuality is part of the human experience, and so long as organizations still employ people rather than robots, it will continue to flourish in one form or another. And sexuality is not simply a tool of gender domination; it is also a potential source of empowerment and even pleasure for women on the job. Indeed, some research suggests that where men and women work as equals in integrated settings, sex harassment isn't a problem. Sexual talk and joking continues, but it isn't experienced as harassment. It's not impossible to imagine sexual banter as a form of playfulness, even solidarity, in a work world that is increasingly competitive and stressful.
Once we realize that the problem isn't sex but sexism, we can re-establish our concept of harassment on firmer ground. Title VII was never meant to police sexuality. It was meant to provide people the chance to pursue their life's work on equal terms--free of pressure to conform to prescribed notions of how women and men are supposed to behave in their work roles. Properly conceived, quid pro quo harassment is a form of discrimination because it involves men exercising the power to punish women, as workers, who have the temerity to say no, as women. Firing women who won't have sex on the job is no different from firing black women who refuse to perform cleaning work, or female technicians who refuse to do clerical work, that isn't part of their job descriptions.
So, too, hostile-work-environment harassment isn't about sexual relations; it's about how work relations engender inequality. The legal concept was created in the context of early race discrimination cases, when judges recognized that Jim Crow systems could be kept alive not just through company acts (such as hiring and firing) but also through company atmospheres that made African-American workers feel different and inferior. That discriminatory environments are sometimes created by "sexual" conduct is not the point. Sex should be treated just like anything else in the workplace: Where it furthers sex discrimination, it should go. Where it doesn't, it's not the business of our civil rights laws.
It's too easy to allow corporate America to get away with banning sexual interaction without forcing it to attend to the larger structures of workplace gender discrimination in which both sexual and not-so-sexual forms of harassment flourish. Let's revitalize our understanding of harassment to demand a world in which all women and even the least powerful men can work together as equals in whatever endeavors their hearts and minds desire.
Vicki Schultz, a professor at Yale Law School, discusses these themes in more detail in "Reconceptualizing Sexual Harassment," in Vol. 107, No. 6 of the Yale Law Journal (1998).
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