When it was published twenty-five years ago, Catharine MacKinnon’s pathbreaking work Sexual Harassment of Working Women had a major impact on the development of sexual harassment law. The U.S. Supreme Court accepted her theory of sexual harassment in 1986. Here MacKinnon collaborates with eminent authorities to appraise what has been accomplished in the field and what still needs to be done.
An introductory essay by Reva Siegel considers how sexual harassment came to be regulated as sex discrimination. Contributors discuss how law can best address sexual harassment; the importance and definition of consent and unwelcomeness; issues of same-sex harassment; questions of institutional responsibility for sexual harassment in both employment and education settings; considerations of freedom of speech; effects of sexual harassment doctrine on gender and racial justice; and transnational approaches to the problem. An afterword by MacKinnon assesses the changes wrought by sexual harassment law in the past quarter century.
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Directions in Sexual Harassment Law
Yale University PressCopyright © 2004 Yale University
All right reserved.
Chapter OneWhat Feminist Jurisprudence Means to Me
It is a great pleasure to be here to celebrate with you the twentieth anniversary of Catharine A. MacKinnon's Sexual Harassment of Working Women. To most of us, twenty years has been a lifetime. For twenty or twenty-five years we have been working to change the fact of male dominance over women. The question is: how do we do that? And in this conference, the question becomes: how does sexual harassment law do that?
So, I would like to say that when I look at feminist jurisprudence I expect to see two things. The first is that the law has to recognize real injuries to real women, concrete ways in which women are turned into second-class citizens, acts that hurt women, and the lexicon through which women's bodies are colonized for sexual exploitation. The law has to, in some way, be about something real that is helping to keep women under, to keep women accessible for sexual exploitation or sexual abuse. The second thing that law must do is exactly what law does not want to do: which is, the law has to undermine or sabotage male dominance. Now, I understand that I am talking to the legally enfranchised here, but in political terms when I and my colleagues look at law, we want to seethat in addition to redressing real grievances the law makes a difference in the distribution of power between men and women.
We also want the law-not tangentially but at its heart-to make a difference in other social hierarchies, all of which are infused with aspects of sexual domination. I mean white supremacy, which we usually call racism in this country; class inequities, which in this country are becoming worse and worse such that whole parts of our population are being thrown away. And we sit here. We are not being thrown away. I cannot tell you what it is like for me to visit rooms like this one: because I work with the people who do not get into these rooms. They do not know if they will live tomorrow. They do not have a sense of well-being or welfare or shelter or food. They are women who have to sell their bodies.
Catharine MacKinnon and I have talked over the last fifteen years-since the ordinance recognizing pornography as a form of sex discrimination was passed in Minneapolis-about why it was that sexual harassment law was basically accepted, but why, when we try to go after a bunch of pimps who are exploiting the most marginalized women in our society, everyone rears up and says, "No, no, no, no! Life stops today! The Constitution is null and void!" If we do anything for the equality rights of women in offices, okay; but if we do anything for the equality rights of women on street corners, we must be crushed and destroyed. I'm not positing something as simplistic as: sexual harassment has worked for middle-class women, in their interests, therefore sexual harassment has worked as a legal strategy. This would be the same as saying: sexual harassment law recognizes a real grievance but has not undermined male dominance. I think, in fact, that in both its origins and where we stand now, sexual harassment law has been part of the process of undermining male dominance. As lawyers you are not supposed to think about this. I am asking you as an activist and a theorist and a not-lawyer-but just as a citizen-to think about this all the time.
When Lin Farley wrote her early book on sexual harassment, which I think was in 1976, she was among the women who could not envision in any way a legal action based on the reality she documented: that sexual harassment made women into vagabonds in the workplace; that women changed jobs, lost seniority, had to physically move their families. She was talking about waitresses and secretaries and women who had no concept that there ever would be a glass ceiling. Sexual harassment law in fact did begin to be used by women who had a very tenuous hold on being middle class: African-American women in offices. I think that it was only when white middle-class men understood that this new law was really going to have something to do with them that we began to see extraordinary backlash, which went as follows: "Sex equals sexual harassment." You've heard it many times. "Those women are trying to stop us from having sex in the workplace." Well, it was certainly news to all of us that actually millions of men wanted to have a young woman in their place of work to suck their cock. We did not really think that was what we were up against. We did not understand that it was that literal, that specific, that real.
So, then, sexual harassment law serves middle-class women. This law shows us the potential when women who can-women who have some right to the place that they have in society, not the earliest black litigants but later white litigants-use this law; when white middle class women say, "Yeah, this law is about me, too." Then the middle-class men say, "Oh my God! What have we done?" They mean: we should have squashed the black women, cut this insurrection off at its roots; now it has taken hold, what can we do now? Now, I am here because I want to talk to you-to feminist lawyers-about jobs in which the job is to be sexually harassed. I point you to Hooters, for instance, which gets around sexual harassment law by saying, "But these women are entertainers. They're hired because they have big breasts. This is the entertainment. They don't just serve food. The breasts bounce and that's entertainment." Or, where the job is to be sexually abused over and over and over again: for instance, prostitution. Or when women are used in pornography and the woman's body is colonized and the injuries to her are real-and those injuries themselves provide the entertainment, create a huge profit because men consume the material made from the injuries of these women and the exploitation of these women and the abuse of these women. I think that you have to make these women matter. You have to see what is happening to them in relation to the fact that it continues second-class status for all women. If you won't or don't, they will be left out in the cold, left on the street corners, left for the pimps forever.
I want to know: is there a difference yet in the male vocabulary after twenty or twenty-five years of us working to articulate and clarify the elements of sexual exploitation and sexual abuse: is there a difference between sex and sexual harassment, between sex and sexual exploitation, between sex and forced sex? Or, are these all pairs of synonyms? Do they mean exactly the same thing? If they continue to mean exactly the same thing to men in real life then we have not done our work. We have not succeeded even with the great power of the law. With respect to sexual harassment, the law has actually been with us for some small period of time. We need to ask-what has moved and what refuses to move?
I need to say this very clearly: I am not a lawyer. I don't know how to talk the way you all do. I have the burden of having to say what I mean. So, understand that I mean this: we need, we must, you must find ways to destroy male power over women whether that power is institutional or in fact it is acted out in what appear to be isolated and individual cases of sexual abuse. We need, you need to destroy the hierarchies that are premised on the sexual availability of women and girls. We need to destroy both the implicit rights and the excess of rights that men now have over women. I think this is a part of feminist change that women do not want to face. Academics do not have to face it. All their degrees are a buffer. But women who have food and shelter, who are not being battered, who are not being raped in their homes have an obligation: they have an obligation to the women who are enduring all of that.
Women are afraid of confrontation. As lawyers you learn to be adversarial including not to tell the truth, not to know the difference between telling the truth and lying, not to know the difference between right and wrong, not to know the difference between being fair and not being fair. What I am saying to you is that if we do not solve this problem of learning how to confront male power in the work that you do, there really is no hope for the rest of us who are not in here but who are out there.
Chapter TwoPerspective on Sexual Harassment Law GUIDO CALABRESI
I would like to go back to the beginning question that Catharine MacKinnon put, "How do we end the inequality of the sexes?" That may seem a very broad way of speaking, but I think that it is the key question that we must ask about sexual harassment. The issue is not only how do we end inequality, but what kind of equality do we want. I go back to this, even though it is the broadest of perspectives, because I am old and I have been struggling with this question for many years. Indeed, I first began to address it when Catharine was in my torts class and teaching me.
I think my problem is at the core of what is discrimination in sexual matters. Because if it is discrimination that we are talking about, then equality would seem to be the answer. But it is not the answer unless we ask what kind of equality should be strived for.
The traditional way in which equality is offered is the equality of the melting pot. You will get equality, you whoever are unequal and dominated now, if you adhere to the stereotype of the dominant culture. In the melting pot it is, "You will be equal, immigrant, if you become a white, Anglo-Saxon Protestant." In other words, you will get equality on our terms. You will get equality if you become like us. Note, that I said "offered," not "given." There is no guarantee that even that equality will be achieved. But this is the equality that is proposed.
By and large, immigrants could not help adhering to this offer. They were minorities; they had no possibility of power. And so, until very recently, they melted-in and tried to buy equality by forgoing who they were. And though this is sad, tragic even, when one dealt with the "taking in" of immigrants, it was not something that ultimately was threatening to society. If Italians came and were offered equality only if they gave up that particular sense of individual relationships that is the essence of that Latin society, too bad. And if, when they tried to reestablish themselves three generations later, all they found was pizza, and not those individual relationships, it would be unfortunate. But it would not be the end of the world; many societies have survived quite well without those relationships.
That same proposition is being made, "offered," to women today. You will be equal, perhaps-anyway, we offer equality to you-if you adhere to male stereotypes. And we often offer this kind of equality thoughtlessly, that is, without even thinking about it. One of my favorite examples is the difference in toilets-which, in the past, usually were called "men's room" and "ladies' room." That is not equal, for the words "men" and "ladies" don't connote the same thing. When equality was offered, they almost always became men's room and women's room. They didn't become ladies' room and gentlemen's room. Now, I'm not sure that gentility in toilets is a very important notion. What interests me is not that, but rather how thoughtlessly, when we give formal equality, we adhere to the stereotype of the previously dominant group.
More on point for sexual harassment law, if we end the sexual double standard, if everyone behaves the way men stereotypically behaved, even if we achieve equality in some sense, have we gotten anything that we truly want? Suppose that we end sexual harassment by moving to a world in which there are women bosses who are powerful and who grope and feel men subsidiaries. But there are also men bosses who continue to grope and feel women subsidiaries. What have we gotten? What have we been fighting for if that is where we end up?
What is more, if we gain equality by demanding that women behave as, stereotypically, men did, we do something that is far more dangerous than when we did the same with respect to immigrants and the melting pot. This is so because, culturally, with all the deprivations to which women have been subjected, women have nevertheless represented all sorts of things that have been essential to our society. If we lose what is good in what women have stood for by making women behave stereotypically like men in order to melt them into an equal society, we will have lost things without which a society cannot survive.
I'm not saying that women only should continue to look after children, but I am saying that if we become a society in which no one looks after children, because women behave the way men-who stereotypically did not look after children-do, we will be a dreadful society. Similarly, in sexual matters, if we all become as nonsissy men were supposed to, we will have achieved very little indeed. That melting-in is fundamentally dangerous, and it is also not necessary, in the way that it may have been necessary for immigrants, because women are, after all, a majority. In fact, women can demand, and we all should demand, that equality be offered, and given, now, not according to the stereotype of the previously dominant group, but thoughtfully and taking into account what there is and has been that women have stood for that must be preserved and must become the way both men and women behave.
But, what is the effect of that? Equality is always offered grudgingly, and given rarely. But it is given even more grudgingly if achievement of it requires that the rulers change their ways. If it means that the dominant groups stop doing what they have always wanted to do-which is having sex in the work- place and so forth-it is almost impossible to come by. There is no doubt about it; to ask for equality that is worth having delays equality, and this was my discussion with Catharine, twenty-five years ago.
When she was a student Catharine said to me, "You are just saying that we must ask for equality on our terms, because to do so will slow equality down and that is what men want." But I persisted, and a few years later she said, "Damn it! I think you are right." Having said that, she went beyond both her and my position of twenty-five years ago to become the dominant scholar that she is. She asked the right question and she saw the problems that are at the root of what we are asking today. We can adhere to the dominant stereotype so long as it is applied equally. Or we can demand that the values of those who have been dominated play a significant or preeminent role in the equality that we strive for. Or, finally, we can (occasionally) even say: treat people equivalently, rather than equally, rather than in the same way. We can admit cultural differences, if we want. That is very dangerous, and especially difficult in the United States because it sounds like separate but equal, which is usually plenty separate, but not equal. And yet it is something that cannot be completely ruled out as we try to figure out what really is the equality that we wish to strive for.
Which of these is wanted in the workplace, and, specifically, as to sexual harassment, sexual relations and language in the workplace? Do we want a workplace in which men and women are equally free to talk like swine and to demand sex from those who are below them? Or do we want equality of a sort that says, "I have respect. You must respect me for what I am"?
I hope that we do not settle for that first, cheap, equality. But if we do not settle for that, then as Andrea Dworkin said, "We have to work an awful lot harder, an awful lot harder, because the equality we are looking for is going to be given, if at all, only after the most crucial, bitter, and often demeaning fight."
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