In this article, Hooven and Klein expressed deep pessimism about the ability of government and the legal system to treat women and people of color fairly. Hooven and Klein explained that AASC did not lobby for laws prohibiting sexual harassment because they believed that laws would not help women because the legal system was sexist, racist, classist and heterosexist.
Alliance Against Sexual Coercion
Is Sexual Harassment Legal?
by Martha Hooven and Freada Klein
Is sexual harassment legal? Not exactly, but it is not precisely illegal either. Currently there exist several ways to legally combat sexual harassment at the workplace (outlines in the chart following this article.) None of these involve laws which directly prohibit sexual harassment -- all represent interpretations, expansions, or redefinitions of what constitutes illegal violations of women workers.
When a woman decides she wants to take legal action against a harasser, she may have several options, the viability and variety of which largely depends upon her particular case (as described in the chart). Naturally, as with all legal recourse, it is helpful to have as much documentation as possible such as witnesses willing to testify on her behalf, evidence which demonstrates she made attempts to change the situation (i.e. talking to a supervisor, co-worker(s) or an outside person), and a good work record (performance and attendence). Proving sexual harassment is a battle and one should be prepared for the frustration that may ensue. A few case examples* are elucidated below to help explain the process:
Cindy is a lab technician employed at a large urban hospital. She's worked there for the past four years and has enjoyed a good rapport with all her coworkers except her departmental supervisor who asked to see her after work. After being refused several times by Cindy, he began a pattern of following her, making rude sexual comments to her and denigrating her to the other staff. Recently he told her she would have to sleep with him in order to keep her job. Since her job was not unionized, she turned to the personnel director of the hospital who refused to take her complaints seriously. Her legal options are slight since she hasn't been fired. Her most viable option would be to rally coworker support: to investigate the incidence of harassment other women experience with this man or other men and to form a committee of workers to approach the personnel department in the hope of
*The names of the women in these cases have been changed.
creating a sexual harassment grievance procedure.*
Combatting harassment while still employed is a common problem of many women. Many others must contend with the loss of a job. Carol, a police-woman who worked in a small town for about a year, is an example of someone who is fired because she won't "put out" for her boss. Her precinct sargent approached her for sex one day in his office. She refused. He attacked her. After struggling with him, she managed to get away. Greatly upset, she didn't return to work for two weeks and when she did return she found she had been fired -- the reason given being her unexplained two week absence. She has taken her case to her state's enforcing agency of Title VII since the sexual harassment she experienced is a clear example of discrimination. However, her two week absence has jeopardized her case, lending credence to the police department's claim that she wasn't a good worker.
In developing legal strategies to stop sexual harassment, several additional limitations must be kept in mind. United States laws have not been created within principles of equality of power and fair distribution of resources; rather these laws operate to maintain a few people in power and offer most people only limited control over their lives. As a result, many people, especially Third World and lower class people, become victims of this system.
We, as educators, service providers, and organizers working on this issue, are painfully aware of the problematic nature of working within a legal structure that simultaneously works to oppress and protect us. Given this fundamental contradiction, we would not support further expansion of the legal system, such as a new law which explicitly prohibits sexual harassment at the workplace. We prefer the redefinition and enforcement of existing laws to protect women workers against sexual harassment. Supporting the extension of existing legislation may help in preventing the problem -- some men may be discouraged from committing sexual harassment and victims can be provided with some protection and compensation.
However, legal channels can be utilized only after sexual harassment has occurred. They will not eliminate the problem itself. Therefore, legal strategies should be developed but along with other tactics more directly aimed at changing attitudes about women and the inequality of power between women and men.*
A similar consideration relates to the fact that legal processes often discriminate against individuals by imposing convictions and penalties on the basis of race and class. At the same time, the penalty inflicted through the criminal justice system is more often destructive than helpful (prison dehumanizes people; it does not "rehabilitate.") For these reasons, we support legal action that treats sexual harassment as an institutional responsibility. Any action such as a federal, civil, or criminal suit against a company is preferable to a criminal suit against an individual harasser. The potential for affecting the, issue is always greater on an institutional level than on an individual one.
As will all legislative reforms, this bill's greatest value is probably as a form of public education rather than as a significant deterrent of sexual harassment. More women will be encouraged to speak out about their victimization and the chances for finding workplace support are increased. However, it is doubtful that enforcement of this legislation will differ greatly from usual enforcement practices -- i.e., a married middle class white woman, if harassed by a man with less societal status, will probably receive benefits; while a poor, Third World or lesbian woman, particularly if harassed by a ‘respectable’ man, may find compensation under this new law difficult to obtain.
*There is also a possibility of bringing a suit against the hospital under Title VII if enough evidence is gathered which indicates that it is a form of sexual discrimination and that the hospital administration is negligent in eliminating it.
*Without the use of other tactics, strategies which operate solely within the restrictions of the legal system may have a cooptive effect. That is, winning reforms may gradually take the place of working for the ultimate goal of eliminating sexual harassment. AASC is conscious of the perplexities of relying on a legal system, the victories of which are limited and small and will not eradicate the causes of harassment.
As for the status of current laws which increase women's legal options, useful legislation regarding sexual harassment was passed in Wisconsin in May; and bills were introduced in several other states during the past session. Wisconsin's bill awards unemployment compensation for an employee who quits a job because of sexual harassment, and makes the employer subject to the Fair Employment Act. Back pay and other employment benefits can now be granted to a woman.
If we were to propose legislation aimed at expanding women's options for dealing with sexual harassment, it sould have to meet several conditions. First, sexual harassment must be considered an "offense" in its own right, without anyone having to prove that it is a form of sex discrimination (sexual harassment itself seriously interferes with a woman's feelings of confidence, dignity and job performance). Women who report sexual harassment cases or discuss it at their workplace, and coworkers who agree to testify against a harasser must be protected from retaliation (similar to guidelines protecting workers who discuss other unfavorable working conditions or the possibility of unionization). Finally the company as well as the individual must be held accountable for explicitly or implicitly condoning harassment.
The inadequacy of existing legislation is most strongly felt when trying to find immediate remedies or compensation for an individual woman. For many women, the unavailability of legal options only adds further trauma. She must now confront the gap between her feelings of violation and the limitations of the criminal justice system, in addition to coping with the specifics of her victimization.
As advocates of rape victims and battered women know, a ‘good analysis’ of violence against women is not particularly helpful to a woman in crisis. AASC, therefore, suggests and supports ‘extralegal’ activities a woman might pursue in addition to legal remedies. ‘Extralegal’ activities include:
-- picketing harassers' places of employment
-- surveying workplaces for prevalence of harassment as a base for pressuring for workplace policy changes
-- leafletting women's bathrooms at work as a warning to other women
-- negotiating with personnel departments, unions or workplace associations to formulate personnel guidelines or worker contracts which prohibit harassment and outline grievance procedures.
As with any course of action, women must be clear about possible consequences and feel that they can afford these risks.
Other strategies that allow the woman to take action and raise public consciousness about the issue fall into the category of ‘pressure group’ activities. The targets are existing workplace organizations or associations that have virtually ignored sexual harassment and other problems specific to working women. Unions, for example, must become accountable in their leadership and provide programs to address working women's needs. Sexual harassment as an issue should be incorporated into organizing drives and contract negotiations. Finally, it is vital that workplace harassment be viewed as an occupational hazard affecting most women workers. Occupational Safety and Health Administration, Unemployment Compensation, and the Division of Industrial Accidents (which handles worker compensation cases) can, through education and a steady stream of cases, become aware of and responsive to the seriousness of sexual harassment.
LEGAL REMEDY BRIEF DESCRIPTION TYPES OF BENEFITS FILING TO SETTLEMENT PROBLEMS Title VII -- 1964 Civil Rights Act Federal legislation prohibiting sex discrimination in employment; file with state & appeal thru EEOC. Monetary compensation for back pay, lost benefits, & damages 2-3 yrs. Applies to workplaces with at least 15 employees. Must prove harassment as a form of sex discrimination. Criminal rape statutes Varies state by state, some include degrees of sexual assault. Imprisonment of harasser/ rapist approx. 1 yr. No compensation for woman. History of workplace interaction probably admissable. Privileged rapists, if convicted, often receive suspended sentences and/or court order to seek therapy. Civil suit for assault and/or battery Suit brought by woman vs. individual man or company in civil court. Monetary settlement damages (physical, psych., loss of pay) 2-3 yrs. unless settled out of court Need private attorney willing to file and follow through on charges. (Payment is usually 1/3 of settlement). Unemployment compensation Award for attributable cause for employment termination due to compelling personal reasons or cause attributable to employer. % of weekly salary up to limit which varies state by state approx. 6 mos. % of women's income often too low to meet basic expenses; need min. income & min. length of employment; must prove attempt to change work situation by complaining to employer or requesting leave of absence. Occupational Safety & Health Act Federal act guaranteeing a "safe & healthful workplace;" allows for inspection of workplace conditions. Employer fined for violations; responsible for correcting them. greatly varies Applies to workplaces with at least 15 employees. To date, OSHA only used for physical/structural hazards (e.g., toxic substances). Worker Compensation Act Operates through state Division of Industrial Accidents. % of income for period of disability; covers medical & mental health expenses At least 8 mos. Workplace rape victims have received benefits in some states, but usually awarded for physical injuries. Fault not necessary to prove. Company's insurance responsible for settlement.
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