Catharine MacKinnon's book was the first in-depth legal analysis of sexual harassment. In this book, MacKinnon described two forms of sexual harassment -- "quid pro quo" sexual harassment (a term she apparently coined) and conditions of work harassment (later known as hostile environment harassment), a distinction later accepted by the Supreme Court. She reviewed and critiqued the legal precedents, and then argued that sexual harassment was sex discrimination because it expressed and reinforced women's social inequality to men.
Sexual Harassment of Working Women
A Case of Sex Discrimination
CATHARINE A. MACKINNON
Foreword by THOMAS I. EMERSON
Intimate violation of women by men is sufficiently pervasive in American society 1 * as to be nearly invisible. Contained by internalized and structural forms of power, it has been nearly inaudible. Conjoined with men's control over women's material survival, as in the home or on the job, or over women's learning and educational advancement in school, it has become institutionalized. Women employed in the paid labor force,2 typically hired "as women," dependent upon their income and lacking job alternatives, are particularly vulnerable to intimate violation in the form of sexual abuse at work. In addition to being victims of the practice, working women have been subject to the social failure to recognize sexual harassment as an abuse at all. Tacitly, it has been both acceptable and taboo; acceptable for men to do, taboo for women to confront, even to themselves. But the systematic silence enforced by employment sanctions is beginning to be broken. The daily impact upon women's economic status and work opportunities, not to mention psychic health and self-esteem, is beginning to be explored, documented, and, increasingly, resisted.
Sexual harassment, most broadly defined, refers to the unwanted imposition of sexual requirements in the context of a relationship of unequal power. Central to the concept is the use of power derived from one social sphere to lever benefits or impose deprivations in another. The major dynamic is best expressed as the reciprocal enforcement of two inequalities. When one is sexual, the other material, the cumulative sanction is particularly potent. American society legitimizes male sexual dominance of women* and employer's control of workers, although both forms of dominance have limits and exceptions. Sexual harassment of women in employment is particularly
*Evidence for this conclusion is discussed in chapter 6, at 156-58 and 174-82.
[*All footnotes can be found at the beginning of p. 239. -- ed.]
clear when male superiors on the job coercively initiate unwanted sexual advances to women employees; sexual pressures by male co-workers and customers, when condoned or encouraged by employers, might also be included. Lack of reciprocal feeling on the woman's part may be expressed by rejection or show of disinclination. After this, the advances may be repeated or intensified; often employment retaliation ensues. The material coercion behind the advances may remain implicit in the employer's position to apply it. Or it may be explicitly communicated through, for example, firing for sexual non-compliance or retention conditioned upon continued sexual compliance.
Sexual harassment may occur as a single encounter or as a series of incidents at work. It may place a sexual condition upon employment opportunities at a clearly defined threshold, such as hiring, retention, or advancement; or it may occur as a pervasive or continuing condition of the work environment. Extending along a continuum of severity and unwantedness, and depending upon the employment circumstances, examples include
verbal sexual suggestions or jokes, constant leering or ogling, brushing against your body "accidentally," a friendly pat, squeeze or pinch or arm against you, catching you alone for a quick kiss, the indecent proposition backed by the threat of losing your job, and forced sexual relations.3
Complex forms include the persistent innuendo and the continuing threat which is never consummated either sexually or economically. The most straightforward example is "put out or get out."
Typically, employers, husbands, judges, and the victims themselves have understood and dismissed such incidents as trivial, isolated, and "personal," or as universal "natural" or "biological" behaviors. This book interprets sexual harassment in the context of women's work and sex roles, in which women as a group are seen to occupy a structurally inferior as well as distinct place. Sexual harassment is argued to derive its meaning and detrimental impact upon women not from personality or biology, but from this social context. The defining dimensions of this social context are employer-employee relations (given women's position in the labor force) and the relationship between the sexes in American society as a whole, of which sexual relations are one expression.
If sexual harassment is a product of social factors, it might be expected
to be a common occurrence. Preliminary indications, although tentative, suggest that it is pervasive, affecting in some form perhaps as many as seven out of ten women at some time in their work lives.4 Yet sexual harassment of women in employment has provided explicit grounds for legal action in only a handful of cases.5 Why has so apparently massive a social problem surfaced so seldom within the legal system? The reasons are probably not limited to the lack of legitimized or sympathetic channels for complaint short of the courts, or to women's learned reticence, enforced through fear of reprisals, although these would seem deterrent enough. It is probably not because the problem has been adequately handled socially. That there has not been even one reported case until very recently implicates the receptivity of the legal system.
Applicable legal concepts, with the social relations they reify, have tended to turn women's differences from men at once into special virtues and special restraints. In effect, if not intent, the law has conceptualized women workers either in terms of their "humanity," which has meant characteristics women share with men, or in terms of their womanhood, which has meant their uniqueness. These two standards have been mutually exclusive. When women have been defined "as women" their human needs have often been ignored. An example is "protective" laws that, in shielding women's femininity from work stress, often excluded women from desperately needed jobs or job benefits.6 Alternatively, when women have been analyzed as "human," their particular needs as women have often been ignored. An example is employment insurance plans that cover virtually every work disability (including many unique to men) except pregnancy.7 In a long-ignored analysis that can be applied to the legal conceptualizations of women both "as human" and "as woman," the sociologist Georg Simmel observed:
Man's position of power does not only assure his relative superiority over the woman, but it assures that his standards become generalized as generically human standards that are to govern the behavior of men and women alike…. Almost all discussions of women deal only with what they are in relation to men in terms of real, ideal, or value criteria. Nobody asks what they are for themselves.8
On the whole, the legal doctrine of "sex discrimination" as interpreted by the courts has implicitly used such standards and criteria. In the
analysis to follow, legal interpretations that give concrete meaning to the sex discrimination prohibition are reconsidered in their theoretical underpinnings, both for their potential in prohibiting sexual harassment and for their limitations, as the issue of sexual harassment reveals them.
The legal argument advanced by this book is that sexual harassment of women at work is sex discrimination in employment. The argument proceeds first by locating sexual harassment empirically in the context of women's work, showing that the structure of the work world women occupy makes them systematically vulnerable to this form of abuse. Sexual harassment is seen to be one dynamic which reinforces and expresses women's traditional and inferior role in the labor force. Next, reports of sexual harassment are analyzed, with a focus upon the dimensions of the experience as women undergo it. This is followed by an account of those few legal cases that have raised the problem of sexual harassment at work. Once the problem has been defined within its material context and as experienced, and the legal attempts to address it have been initially explored, the central legal question can be confronted: is sexual harassment sex discrimination?
Two distinct concepts of discrimination, which I term the "differences" approach and the "inequality" approach, emerge as approaches to answering this question.9 These conceptions are not strictly legal doctrines in the sense that judges recognize them as alternative views on the meaning of discrimination. Rather, they are the result of an attempt to think systematically about the broader concepts that underlie the logic and results of the discrimination cases as a whole, with particular attention to discrimination law's most highly developed application: the cases on race. Applied to sex, the two approaches flow from two underlying visions of the reality of sex in American society. The first approach envisions the sexes as socially as well as biologically different from one another, but calls impermissible or "arbitrary" those distinctions or classifications that are found preconceived and/or inaccurate. The second approach understands the sexes to be not simply socially differentiated but socially unequal. In this broader view, all practices which subordinate women to men are prohibited. The differences approach, in its sensitivity to disparity and similarity, can be a useful corrective to sexism; both women and men can be damaged by sexism, although usually it is women who are.
The inequality approach, by contrast, sees women's situation as a structural problem of enforced inferiority that needs to be radically altered.
The view that discrimination consists in arbitrary differentiation dominates legal doctrine and scholarly thinking on the subject, reaching an epiphany in the Supreme Court's majority opinion in Gilbert v. General Electric (1977).10 General Electric excluded only pregnancy and pregnancy-related disabilities from risks covered under an employee disability insurance plan. Had the case been approached with an awareness of the consequences of pregnancy and motherhood in the social inequality of the sexes, the Court would have found such a rule discriminatory. More narrowly, only women are excluded from insurance coverage against a detriment in employment due to temporary disability, creating unequal employment security on the basis of sex. Taking the differences approach, however, the Court thought that, although all pregnant persons are women, because pregnancy is unique (but not universal) to women, excluding it from coverage was not a distinction "based on sex," hence not discriminatory. Because women actually had different disabilities from men, it was not discriminatory to fail to insure them. By contrast, the result (although not every feature of the reasoning) in a 1978 case, City of Los Angeles v. Manhart,11 illustrates the inequality approach. There, the Supreme Court found that requiring women to make larger contributions to their retirement plan was discriminatory, in spite of the proved sex difference that women on the average outlive men. A real difference between the sexes was not allowed to obscure or excuse socially unequal consequences.
Implicit in the distinction in approach are different conceptions of reasonable comparability: must women and men be able to be compared on the variable in question? Further, exactly what the variable in question is defined to be is decided by the approach which is taken. Under the differences approach, if the context is defined so that the sexes cannot be reasonably compared, discrimination cannot be seen to be sex-based. By contrast, the inequality approach comprehends that women and men may, due to sex or sexism, present noncomparabilities. In this view, lack of comparability is not a permissible basis for socially perpetuating women's disadvantages.
In terms of the social context discussed, and under the legal doctrines that context has produced, sexual harassment is argued in this
book to be not simply abusive, humiliating, oppressive, and exploitative, but also to be sex discrimination in employment. Specifically, this is argued under Title VII of the Civil Rights Act of 1964, as amended, and the Equal Protection Clause of the Fourteenth Amendment. In relevant part, Title VII states:
It shall be an unlawful employment practice for an employer --
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's … sex …; or
to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's … sex.12
The Equal Protection Clause of the Fourteenth Amendment to the Constitution guarantees that no state shall "deny to any person within its jurisdiction the equal protection of the laws."13 Sexual harassment is argued to be sex discrimination under these sections according to both the inequality approach, which is favored, and the differences approach, which is criticized.
Both arguments can be briefly stated. Under the inequality approach, sexual harassment is seen to disadvantage women as a gender, within the social context in which women's sexuality and material survival have been constructed and joined, to women's detriment. Under the differences approach, sexual harassment is sex discrimination per se because the practice differentially injures one gender-defined group in a sphere -- sexuality in employment -- in which the treatment of women and men can be compared. Sexuality is universal to women, but not unique to them. All women possess female sexuality, so the attribute in question is a gender characteristic. But men also possesss sexuality and could be sexually harassed. When they are not, and women are, unequal treatment by gender is shown. If only men are sexually harassed, that is also arbitrary treatment based on sex, hence sex discrimination. If both sexes are, under this argument the treatment would probably not be considered gender-based, hence not sex discriminatory. Thus, sexual harassment of working women is treatment impermissibly based on sex under both approaches.
Sexual harassment is also discrimination in employment. Current cases are analyzed in which courts have found sexual harassment
"personal," "biological," "not a policy," and thus (implicitly) not employment discrimination as well as not based on sex. These objections are found uncompelling, mutually inconsistent, without weight in analogous areas of law, and ideologically sexist. Although some of the cases which rely on these formulations have been reversed on appeal, most of these assertions, which represent deep and broadly held social views on women's sexuality, have not been squarely controverted by the courts and continue to arise in litigation. The Supreme Court has yet to hear its first sexual harassment case.
Opposing sexual harassment of women at work through the legal system deserves evaluation from a social standpoint. Sexual harassment is addressed in this book in terms of employment, and women's employment status in terms of sexual harassment, not because work is the only place women are sexually harassed nor because sexual harassment is women's only problem on the job. Legally, women are not arguably entitled, for example, to a marriage free of sexual harassment any more than to one free of rape, nor are women legally guaranteed the freedom to walk down the street or into a court of law without sexual innuendo. In employment, the government promises more.
Work is critical to women's survival and independence. Sexual harassment exemplifies and promotes employment practices which disadvantage women in work (especially occupational segregation) and sexual practices which intimately degrade and objectify women. In this broader perspective, sexual harassment at work undercuts woman's potential for social equality in two interpenetrated ways: by using her employment position to coerce her sexually, while using her sexual position to coerce her economically. Legal recognition that sexual harassment is sex discrimination in employment would help women break the bond between material survival and sexual exploitation. It would support and legitimize women's economic equality and sexual self-determination at a point at which the two are linked.
2 Women's Work
Women work "as women." The American workplace and work force are divided according to gender. Compared with men, women's participation in the paid labor force1 is characterized by horizontal segregation, vertical stratification, and income inequality.2 Women tend to be employed in occupations that are considered "for women," to be men's subordinates on the job, and to be paid less than men both on the average and for the same work.
Sexual harassment on the job occurs in this material context and is directly related to it. Horizontal segregation means that most women perform the jobs they do because of their gender, with the element of sexuality pervasively implicit. Women who work at "men's jobs" are exceptions. By virtue of the segregation of most women into women's jobs, such women are residually defined as "tokens." So even women who are exceptional among their sex remain defined on the job according to gender, with sexuality a part of that definition. Vertical stratification means that women tend to be in low-ranking positions, dependent upon the approval and good will of male superordinates for hiring, retention, and advancement. Being at the mercy of male superiors adds direct economic clout to male sexual demands. Low pay is an index to the foregoing two dimensions. It also deprives women of material security and independence which could help make resistance to unreasonable job pressures practical.
This is not to suggest that sexual harassment alone explains these characteristics of women's position in the labor force. But very little is known about the day-to-day processes by which women's disadvantaged work status is attained.3 This chapter takes the view that the sexual harassment of women can occur largely because women occupy inferior job positions and job roles; at the same time, sexual
harassment works to keep women in such positions. Sexual harassent, then, uses and helps create women's structurally inferior status.
Most working women are employed in jobs which mostly women do: this is horizontal segregation. In 1960, 47 percent of employed women worked at occupations in which women comprised 80 percent or more of the workers; only 2 percent of working women were employed in occupations in which they represented less than 33 percent of the total workers at that job. Almost 90 percent of employed men worked at jobs which had fewer than 33 percent women doing them.4 By 1970, the picture had changed little: 72.6 percent of all employed women remained in occupations which were 45-100 percent female.5 This segregation of women into certain types of jobs characterizes occupational categories both as a whole and subdivided by industry and firm. In 1974, 35 percent of working women had clerical jobs, occupying 77 percent of those jobs; 43 percent of women workers held service jobs, constituting 58 percent of all service workers.6
Women represent 98.5 percent of private household workers (paid) and 41.7 percent of all sales workers. By contrast, women comprised 4.2 percent of craft and kindred workers, 18.6 percent of managers and administrators and 15 percent of all farm workers.7 Thirteen percent were operatives (factory workers),* and 6.8 percent were sales workers.8 Taken together, this means that over 75 percent of working women are employed in "women's jobs," that is, in job categories noted for their sex-typing and in workplace settings characterized by sex segregation. Women who work are typically secretaries, typists, file clerks, receptionists, waitresses, nurses, bank tellers, telephone operators, factory workers (especially as dressmakers and seamstresses), sales clerks in department stores or cashiers in supermarkets, kindergarten or elementary school teachers, beauticians or cleaning women.9 This distribution of occupations by sex leaves everything
*Factory work is not generically women's work, unlike, for example, service or clerical work. But women who are employed as factory workers are overwhelmingly employed in sex-defined sectors or subsets of factory jobs, such as in small electronics assembly, garment production, food packaging, and the like.
else -- including both blue collar and high-status jobs -- for men. In 1970, half of all women workers were employed in seventeen occupations of uniformly low status and pay, while half of all male workers were employed in sixty-three occupations which included a full range of pay and status.10 In 1973, more than 40 percent of all women workers were employed in ten occupations, while the ten largest male occupations employed less than 20 percent of all working men.11
Women's jobs are usually "dull, repetitive, routine or dead-end."12 So are many men's jobs. The difference is that women are almost universally restricted to a limited range of jobs at the bottom of the socioeconomic spectrum because of their sex. The remaining range of employment possibilities is open to men by comparison with other men (not, as a rule, by comparison with women) according to factors other than sex, race and class (or its proxy, education) being the most common. To grasp the precise interaction that keeps women defined by sex either in women's work or as token women and men doing everything that is considered either beyond women's capacities or sex-neutral would be to define a major dynamic of the socioeconomic system. But a single equivalence, at least, is clear: women's work is defined as inferior work, and inferior work tends to be defined as work for women.
Moreover, work that is considered inferior is often so defined on the basis of the same standards that define it as suitable for women: low interest or complexity, repetition and tediousness, little potential for self-direction, predominantly service-oriented, high contact with customers, involvement with children, and keeping things clean. These are tasks which men tend to shun unless there is no other job -- or woman -- around. Some of the most pointed documentation of the correlation of women's work with inferior work is revealed in explanations given for the shift in specific jobs from "men's jobs" to "women's jobs" between 1953 and 1961 in a large New Jersey county. Several typical explanations were:
"[Most] technological changes were of a type that would tend to increase the percent of women. For example, we have broken down the alignment of components and simplified [the] job and as the jobs called for less skill, they became women's work." "In assembly we have one job … which was formerly performed by men. We decided that the job was simple enough so that there was no point in continuing to recruit men for it. So we made it a woman's job. We couldn't redesign it; it was already too simple." "We feel that jobs requiring
manual dexterity call for women. Also this work is particularly tedious and painstaking -- definitely a woman's job."13
These observations are supported by studies which, taken together, suggest that as work becomes degraded by mechanization and routinization, it becomes defined as "women's work."14 Given the qualities of jobs that make them considered women's work, it should be no surprise that many are easily replaced by machines.15 At the same time, automation sometimes increases the available women's jobs by reducing to an unskilled operative level (for women) tasks that were formerly performed by a skilled worker (a man). This partly explains how women's labor force participation rate can increase while the overall unemployment rate, and the rate for women, also increases.
Another way of documenting the equivalence of women's work with inferior work is dynamically: the pay and status of whole occupations decline over time as women enter them. Clerical work,16 primary and secondary education, and medicine in the Soviet Union are striking examples. As Andrea Dworkin synthesizes these trends, "when women enter any industry, job or profession in great numbers, the field itself becomes feminized, that is, it acquires the low status of the female."17
Differentiation by sex holds as true within occupations as between them: this is vertical stratification. Women are generally men's subordinates on the job, with men in the position to do the hiring, firing, supervising, and promoting of women.
Only about 5 percent of all women workers occupy managerial or administrative jobs, accounting for only about 18 percent of all managers and administrators. As we have seen, women are overwhelmingly in positions that other people manage, supervise, or administer. Even in women's jobs, the managers are men.18 A large percentage of professional women are teachers or health workers, yet they do not occupy the same proportion of the top positions in these fields.19 The same is true in the federal civil service, where hierarchy is easy to observe. Compared with men, women are overwhelmingly concentrated in the lower-level civil service grades.20
Thus women work as men's workplace inferiors, either at inferior work or at inferior positions in the same work. Sex differentiation on the job need not be expressed in overt segregation, although often it is. Equally disadvantageous can be the gender-integrated situation where women do the same kinds of work as men but systematically occupy an inferior rung on the job ladder, dependent upon and vulnerable to male employers' or supervisors' approval for job security and career advancement. And at a certain point, especially when the prospects for upward mobility are limited, to do a lower-level version of the same job is to do a different job. Where the reason is sex, vertical and horizontal segregation tend to converge.
One particularly telling reflection of the foregoing two dimensions is women's income inequality with men. In 1974, women who worked full time earned 57¢ for every dollar earned by men. In 1976, the median earnings of year-round, full-time workers were only 60 percent of men's.21 Computèd by occupational group, adjusted for age and education, professional and technical women in 1974 made an average of 64 percent of the salaries of their male counterparts, woman nonfarm laborers, 72 percent. On the other end of the scale, female sales personnel made an average of 41 percent of the salary of salesmen. Broken down further, and stated differently, in 1974 the difference between women's and men's salaries was smallest for professional and technical workers and laborers, where women occupy the smallest proportion of the occupational category; the difference was highest in those jobs occupied mostly by women.22
This earnings differential was wider in 1974 than in most previous years, and the gap is increasing. In 1955, men's median earnings exceeded women's by an average of 56.4 percent, in 1974, by 74.8 percent.23 Education does not proportionately improve women's status. In 1974, women with four years of college had lower salaries than men who had completed the eighth grade, and only 59 percent of the income of their male counterparts. This was a lower wage than was earned by fully employed men who did not complete elementary school.24 Poor women tend to be substantially better educated than equally poor men.25
This means that the higher the job status, the more likely a woman
is to be paid marginally closer to a man's wage-rate, and the less likely women are to occupy these positions at all, regardless of educational preparation. The more women there are in an occupation, the greater the likelihood that the few men in that profession will be paid disproportionately higher wages -- and the lower-paid the job category as a whole tends to be when compared with jobs occupied mostly by men. Controlling for differences in education, skills, and experience (factors which themselves could be created by discrimination), studies have found a remaining difference between men's and women's salaries of between 20 and 43 percent, a difference which can be explained only as discrimination.26 In 1976 the Women's Bureau concluded, after discussing the possible contribution of many factors to wage differentials, including concentration in low-paying occupations, working less overtime, differences in education, training and work experience, age, region, and degree of industrial concentration:
These differences between the earnings of men and women suggest that women are being paid less for doing the same job…. Studies have shown … that even after adjusting for some of these and other factors … much of the male-female earnings differential remains unexplained -- representing a maximum measure of discrimination.27
A comparison of sex discrimination with race discrimination -- a comparison which will be pursued throughout this discussion -- completes the dismal statistical picture of women at work. The law has long based its efforts to alleviate discrimination upon the assumption that racial discrimination is the more critical and widespread and damaging social evil. Yet the President's Task Force on Women's Rights and Responsibilities concluded, "Sex bias takes a greater economic toll than racial bias."28 Black women make less than white women, but white women make less, on the average, than black men. Since women's incomes are so low, it would follow that many women would be poor. Poor women outnumbered poor men by more than 4 million in 1975. Data for 1976 indicate that nearly two out of every three poor persons were women.29 Black women are much more likely to be poor than white women, although poor white women outnumber their black counterparts by nearly two to one.30 The conclusion is unquestionable: women, as a definable social group, are disadvantaged in employment.
Nor can working women be ignored as economically unimportant because they are supported by a man. Women work because they
need the money. Close to three quarters are either single (23 percent), divorced, widowed or separated (19 percent), or have husbands who earn less than $10,000 a year (29 percent).31 Many working women are heads of households and the sole support of their families. They cannot typically afford to risk loss of work. In March 1974, approximately 12 percent of all families, or one out of eight, were headed by a woman.32 In 1976, women headed 14 percent of all families.33 Families headed by women also tend to be poor, further restricting women's job flexibility. While the labor force participation rate of women household heads is substantially higher (54 percent) than that of all women (45 percent), their income is lower than for families headed by men,34 and their unemployment rate is higher (6.4 percent) than that for husbands in husband-wife families (2.7 percent).35 As a result, in 1976, 48 percent of all poor families were headed by women. About one-third of all families headed by women were poor, more than five times the rate for male-headed families.36
Contributing to low pay, as well as to vulnerability to employer capriciousness and victimization, is working women's comparative lack of unionization. Unionized women's pay is closer to unionized men's than nonunionized women's pay is to nonunionized men's. But in the United States, women belong to unions far less often than men do, which is another way of saying that women's occupations tend to be less unionized than the rest of the labor force. In 1970, only 10.4 percent of all working women were unionized, compared with 27.8 percent of all working men. Among white collar workers, 7.4 percent of women were in unions, 12.5 percent of men; among blue collar workers, which includes relatively few women, 27.8 percent of women were unionized, compared with 42.1 percent of men. For factory operatives and like workers, 29 percent of women belonged to unions, while 46.2 percent of men did. The disparity is also impressive in service work, where an overwhelming majority of workers are women: in 1970, 5.7 percent of women service workers were unionized, compared with 20.1 percent of men. As with pay rates, the disparity in unionization is greatest in those jobs occupied mostly by women, and by most women.37
Taken together, these dimensions describe but do not explain sex segregation, one of the most tenacious rigidities of the labor market. It is clear that the current economic system requires some collection of
individuals to occupy low-status, low-paying jobs; it is unclear whether there is any economically determinate reason why such persons must be biologically female. The fact that male employers often do not hire qualified women, even when they could pay them less than men, suggests that more than the profit motive is implicated.38 Various reasons have been suggested for such unusual behavior by allegedly profit-maximizing businesses. One view is that money losses are overruled by psychological gains: "It feels so good to have women in their ‘place.’ "39 Another view is that men see women as less profitable even when they are paid less: "Sex role stereotypes pervasive in our culture may lead employers to believe that women would be such inefficient workers in traditionally male jobs that they would not be worth hiring, even at low wages."40
Still another view is that capitalists as a whole "profit from discrimination and few if any individual capitalists lose money in the process, while many gain; … probably none see themselves as losing money from it."41 The reason is the structure of monopoly in industry. The mostly highly monopolized industries, less affected by competition, can afford to sex-segregate jobs (that is, pay men more to do the work) because they pass on higher wages to consumers. The most competitive, less profitable industries almost universally employ exclusively female workers.42 A contributing explanation might be that few men apply for women's jobs because they have options to these low-paying, dead-end positions, which, moreover, affront their manhood, while few women apply for men's jobs because they believe (with reason) they will not be hired. The employer may seldom be presented with two persons of different sexes for the same job, that is, with an opportunity to discriminate.43 The contextual aspects of women's work that an examination of sexual harassment highlights may also contribute to explaining sex segregation. A defining element of women's jobs may be the subtle or blatant sexual prerogative afforded the (almost universally) male employer by having women employees perform certain jobs.
A good deal more has been written which documents the characteristics of women's work beyond its predominantly mindless, regimented, "service with a smile" segregation, coupled with low pay. Women can also expect to encounter discrimination in benefits, layoff policies that accentuate their status as a reserve labor pool, conflicts between workplace and home demands, and other frustrations, indignities,
and inequities. Sexual harassment may contribute to an undetermined extent to many aspects of women's employment experience, including absenteeism, turnover, productivity rates and work motivation, job dissatisfaction, and unemployment. Whether or not these rates differ by sex, the factors contributing to the women's rates should be scrutinized. All these factors converge upon the central characteristic of women's work, which is that it is just that: work defined according to their sex.
Segregation is more or less accepted as a dirty word when applied to separation on the basis of race. (Imagine "black people's work" as a classification.) But there seems to be a social sense that it is somehow appropriate, or at least not without some just foundation, to divide labor according to sex. The difference in the social attitudes involved can be revealed by considering a hypothetical example: "How should a court treat a school principal's decision, based solely on aesthetics, to have black and white students sit on opposite sides of the stage at the graduation ceremony?"44 Professor Owen Fiss, discussing this example, has "little doubt" that this "unlikely" practice would violate equal protection of the laws.45
But consider the everyday reality behind the statistics of women at work: the linoleum and fluorescent undivided typing pool of thirty women, typewriters clacking, ringed by a series of carpeted, woodpaneled offices with closed doors, behind each of which sits one man. Consider further a noisy shop floor full of whirring sewing machines with a woman behind each one. Walking up and down behind the women is a man, giving selective permission to go to the bathroom, seeing who tries to talk to her neighbor, who is slowing the pace -- supervising.
Now reconsider the high school graduation, this time with the girls on one side of the stage and the boys on the other, a common ceremonial arrangement. Is this distinction between the sexes more defensible as "aesthetic" than the distinction between differently colored races? Would motive for separation be evaluated by different standards? Would any employer seriously defend race-based hiring on the grounds that black skin "just looks better" in his white busboy uniforms? But how many thousands of employers hire women for their "aesthetic" appeal? To unpack these "aesthetics" further, are those sex-exclusive hiring practices discriminatory in which male employers find women behind typewriters "prettier to look at" than
men? Directly to the point of our investigation, does this mean that being looked at (for a start) by the boss (male) is part of why many women are hired?
The feminization of whole sectors of the labor force is well documented.46 Not recognized is that this gender-definition includes sexualization of the woman worker as a part of the job. Until it is changed, this makes sexual harassment systemically inevitable for the masses of women who must take the only jobs society opens to them. Women are secretaries (99 percent female), domestics (98 percent), nurses (98 percent), typists (97 percent), telephone operators (96 percent), child care workers (98 percent), and waitresses.47 In such jobs a woman is employed as a woman. She is also, apparently, treated like a woman, with one aspect of this being the explicitly sexual. Specifically, if part of the reason the woman is hired is to be pleasing to a male boss, whose notion of a qualified worker merges with a sexist notion of the proper role of women, it is hardly surprising that sexual intimacy, forced when necessary, would be considered part of her duties and his privileges.
It is commonly observed that women's employment outside the home tends to monetize the roles and tasks women traditionally perform for men in the home. Concerning service work roles, overwhelmingly occupied by women, Talcott Parsons noted: "Within the occupational organization, they are analogous to the wife-mother role in the family."48 Work relationships parallel traditional home relationships between husband and wife.
Women have jobs in which they are personal servants to individual men. The secretary is the standard example, although receptionists, nurses and research assistants all come into this category. The functions women perform are wife-like functions, such as ego-building, the housekeeping (tidying up, answering the phone, getting coffee), and the function of being a sex object.49
The secretary role is particularly clear. Thorstein Veblen's description of the role of wife converges with modern descriptions of the secretary and receptionist:
The servant or wife should not only perform certain offices and show a servile disposition, but it is quite as imperative that they should show an acquired
facility in the tactics of subservience -- a trained conformity to the canon of effectual and conspicuous subservience. Even today, it is this aptitude and acquired skill in the formal manifestations of the servile relation that constitutes the chief element of utility in our highly paid servants, as well as one of the chief ornaments of the well-bred housewife…. It is of course sufficiently plain, to anyone who cares to see, that our bearing toward menials and other pecuniarily dependent inferiors is the bearing of the superior member in a relationship.50 (emphasis mine)
Compare a contemporary description of the secretary:
The private secretary must master all the small gestures that make her appear submissive, and yet "professional," and must present a classy image by careful behavior and a careful selection of clothing and make-up.51
A study of male managers' attitudes toward working women in 1971 found that the most important attitude of women toward men on the job was "deference."52
In a major study of workplace relations between the sexes, Rosabeth Kanter characterizes the major outlines of the secretary's job as patrimonial: based upon personal fealty, its tasks defined by individual whim, and lacking a rationalized task definition or clear criteria for advancement. She summarizes her analysis as follows:
When bosses make demands at their own discretion and arbitrarily; choose secretaries on grounds that enhance their own personal status rather than meeting organizational efficiency tests; expect personal service with limits negotiated privately; exact loyalty; and make the secretary a part of their private retinue, moving when they move -- then the relationship has elements of patrimony.53
Agreeing with the "office wife" parallel, Kanter found that the secretary is valued by management, after her "initiative and enthusiasm," for her "ability to anticipate and take care of personal needs." She also observes, without elaborating, that "bosses had enormous personal latitude around secretaries."54
One need not be a secretary or hold a "woman's job" to be sexually defined on the job. Kanter describes the "seductress" stereotype as one of the few available images for the token woman in a male-defined occupation. Although this role is a perception, independent of the woman's actual behavior, "her perceived sexuality blotted out all other characteristics."55 Other observers have come as close to recognizing sexual harassment without quite seeing it as such.
Is bringing coffee to your boss and chatting with him about his marital problems secretarial work or is it a personal favor? Is the fact that we have to worry about our looks on the job a condition of work or is it the result of female vanity?56
[The job includes a concern] not only with business work, but with her boss's social appointments outside the office hours, and with his family (remembering birthdays, covering up sexual affairs, booking vacations, etc.). She will also serve as a "whipping boy" -- someone a man can vent his anger and frustrations on, or demand a smile depending on his mood.57
Union organizers have long observed the private secretary's loyalty as an obstacle to unionization. The context of sexual harassment, once it is understood as such, becomes visible if the situation is scrutinized with it consciously in mind:
Often, her boss or one of his colleagues keeps her further hooked into the management frame of reference by insinuating that he actually might be interested in her socially, as a girl friend or even as a wife. It doesn't matter if he is already married.58
Or, more bluntly:
Male employers often use sex to control women and maintain their authority at the work place. This divides the work force and makes it very difficult to organize.59
The sexualization of women on the job is often seen as much more an attitude or a feeling than a mode of behavior or an institutional practice. Kanter, for example, reports that "several saleswomen at [the company] felt, rightly or wrongly, that they were targets of the sexual fantasies of male peers."60 In describing male attitudes toward secretaries as "substitute wives," Mary Kathleen Benet notes a pervasive sexualization but pursues it only as far as thoughts:
The first thing that comes to many a man's mind when he thinks about secretaries is sex…. Men in offices speculate endlessly about the girls, comparing them, picking favorites, teasing them. In fact, most office men will tell you that's why the girls are there. The sexual roles that women play in "real life" have been transferred to the office … all this reflects the fact that women are still thought of first as sexual beings, not as workers. No amount of work on their part seems to dispel this assumption. No wonder, for it has been embedded in our thinking.61
Yet one telephone company psychologist's advice to an "uppity" operator openly purveys the parallel of boss to husband as a standard for success:
"You should sell yourself," Mr. Beauflax smiled and said, "You should sell yourself, your work, your appearance, to the men. Some secretaries get ahead by dressing older and fixing their hair for their bosses." He said that clothes show if you're a "mature young lady" or not. "Some girls," he really said this, "please their bosses before their husbands."62
Accordingly, to enhance their graduates' employability, secretarial schools propose to make them into "a pretty package."63 Why has it been so unthinkable, so carefully skirted, that such attitudes would be acted upon, that, to continue the metaphor, packages are meant to be unwrapped by the purchaser?
In these discussions of women's and men's workplace roles -- in "the function of being a sex object," the "submissive gestures" required, "covering up sexual affairs," the injunction to "please their boss before their husbands," the "perceived sexuality," and the "enormous personal latitude" bosses have around their "pretty packages," -- sexuality remains subliminal. When gender -- women and men -- is discussed, sexuality per se is left to be inferred. Symmetrically, when sexuality is discussed, gender tends to be glossed over, as if sexuality means the same thing for women as it does for men. Such an assumption of gender symmetry underlies Herbert Marcuse's analysis of one expression of advanced industrial civilization, the freeing of sexual energy for its own frustration.
Without ceasing to be an instrument of labor, the body is allowed to exhibit its sexual features in the everyday work world and in work relations…. The sexy office and sales girls, the handsome, virile junior executive and floor worker are highly marketable commodities, and the possession of suitable mistresses… facilitates the career of even the less exalted ranks in the business community…. Sex is integrated into work and public relations and is thus made more susceptible to (controlled) satisfaction.64
By analyzing women's and men's participation in this dynamic as equal -- if equally unfree -- Marcuse diminishes the key fact underlying sexual harassment: women are required to market sexual attractiveness to men, who tend to hold the economic power and position to enforce their predilections. From a very different theoretical perspective,
David Riesman makes a comparable observation and equalization. As work becomes less interesting and demanding, "as job mindlessness declines, sex permeates the daytime as well as the playtime consciousness," so that sex becomes viewed as "a consumption good" on the job.65 Like Marcuse, Riesman misses the fact that purported developments such as a "leisure mentality" do not fall upon women and men equally. Rather, it is men who "consume" women's sexuality on the job, and women who must accommodate this fact as part of their work.
That the economic impact of sexuality differs by gender often becomes very clear to the women involved, even from the first job interview.
He then looked at my legs again and looked up and gave me a very big paternalistic smile. "We usually don't hire married girls," he said. "We like to have young, pretty and available girls around the office. You know," he added, "it cheers things up a lot."66
The accumulation of observations such as these suggests that, for women, "attractiveness" -- meaning an ingratiating, flattering, and deferential manner which projects potential sexual compliance -- has economic consequences. Whether or not the woman is ever overtly harassed, the stage for sexual harassment is set. The impact upon women's income of projected "desirability" is affirmed by women's experience: "Waitresses are placed according to their racial and sexual ‘desirability,’ and where you are placed determines the amount of money you can make."67 As another woman obliquely put it, "Not being attractive enough does have an economic effect…. You know you can't get really well-paying jobs. If you ever go to the top floor of an office building, you know the women look a certain way."68 Stating it directly, still another woman spoke of her succession of male superiors treating her "not as a working person dependent on an income, but as a woman, being measured against some sexual standard."69
In order to meet this standard, women are taught to telegraph receptivity and to respond supportively to male sexual overtures, no matter how they may feel about the man. It is this that makes a woman "sexy" in the stereotypical sense. It is this that is often, in effect, a job qualification, just as a deferential, flattering manner to whites was once required of blacks of both sexes.70 These observations suggest
that women tend to be economically valued according to men's perceptions of their potential to be sexually harassed. They are, in effect, required to "ask for it."
The point is not that employers prefer good-looking employees, men or women. The point is that it is the very qualities which men find sexually attractive in the women they harass that are the real qualifications for the jobs for which they hire them. Women know this. They know that the appearance an employer finds gratifying, that image which is much of what he is really paying her for, is, in substance, that "nice" provocativeness that she drops at her economic risk. It is this good-girl sexiness (in the case of black women, well-contained, bad-girl sexiness) that qualifies a woman for her job that leaves her open to sexual harassment at any time and to the accusation that she invited it. Ntozake Shange's lines mean as much for women in the workplace as in the street, where being "nice" is both a requirement for survival and a sexual invitation:nice is such a rip-off
reglar beauty and a smile in the street
is just a set-up71
3 Sexual Harassment: The Experience
Most women wish to choose whether, when, where, and with whom to have sexual relationships, as one important part of exercising control over their lives. Sexual harassment denies this choice in the process of denying the opportunity to study or work without being subjected to sexual exactions. Objection to sexual harassment at work is not a neopuritan moral protest against signs of attraction, displays of affection, compliments, flirtation, or touching on the job. Instead, women
are rattled and often angry about sex that is one-sided, unwelcome or comes with strings attached. When it's something a woman wants to turn off but can't (a co-worker or supervisor who refuses to stop) or when it's coming from someone with the economic power to hire or fire, help or hinder, reward or punish (an employer or client who mustn't be offended) -- that's when [women] say it's a problem.1
Women who protest sexual harassment at work are resisting economically enforced sexual exploitation.
This chapter analyzes sexual harassment as women report experiencing it.2 The analysis is necessarily preliminary and exploratory. These events have seldom been noticed, much less studied; they have almost never been studied as sexual harassment.3 Although the available material is limited, it covers a considerably broader range of incidents than courts will (predictably) consider to be sex discrimination. Each incident or facet of the problem mentioned here will not have equal legal weight or go to the same legal issue; not every instance or aspect of undesired sexual attention on the job is necessarily part of the legal cause of action. Some dimensions of the problem seem to contra-indicate legal action or to require determinations that courts are ill suited to make. The broader contextual approach is taken to avoid prematurely making women's experience of sexual
harassment into a case of sex discrimination, no more and no less. For it is, at times, both more and less.
I envision a two-way process of interaction between the relevant legal concepts and women's experience. The strictures of the concept of sex discrimination will ultimately constrain those aspects of women's oppression that will be legally recognized as discriminatory. At the same time, women's experiences, expressed in their own way, can push to expand that concept. Such an approach not only enriches the law. It begins to shape it so that what really happens to women, not some male vision of what happens to women, is at the core of the legal prohibition. Women's lived-through experience, in as whole and truthful a fashion as can be approximated at this point, should begin to provide the starting point and context out of which is constructed the narrower forms of abuse that will be made illegal on their behalf. Now that a few women have the tools to address the legal system on its own terms, the law can begin to address women's experience on women's own terms.4
Although the precise extent and contours of sexual harassment await further and more exacting investigation, preliminary research indicates that the problem is extremely widespread. Certainly it is more common than almost anyone thought. In the pioneering survey by Working Women United Institute,5 out of a sample of 55 food service workers and 100 women who attended a meeting on sexual harassment, from five to seven of every ten women reported experiencing sexual harassment in some form at some time in their work lives. Ninety-two percent of the total sample thought it a serious problem. In a study of all women employed at the United Nations, 49 percent said that sexual pressure currently existed on their jobs.6 During the first eight months of 1976, the Division of Human Rights of the State of New York received approximately 45 complaints from women alleging sexual harassment on the job.7 Of 9,000 women who responded voluntarily to a questionnaire in Redbook Magazine, "How do you handle sex on the job?" nine out of ten reported experiences of sexual harassment. Of course, those who experience the problem may be most likely to respond. Nevertheless, before this survey, it would have been difficult to convince a person of ordinary skepticism that 8,100 American women existed who would report experiencing sexual harassment at work.
Using the Redbook questionnaire, a naval officer found 81 percent
of a sample of women on a navy base and in a nearby town reported employment-related sexual harassment in some form.8 These frequency figures must, of course, be cautiously regarded. But even extrapolating conservatively, given that nine out of ten American women work outside the home some time in their lives9 and that in April 1974, 45 percent of American women sixteen and over, or 35 million women, were employed in the labor force,10 it is clear that a lot of women are potentially affected. As the problem begins to appear structural rather than individual, Redbook's conclusion that "the problem is not epidemic; it is pandemic -- an everyday, everywhere occurrence"11 does not seem incredible.
One need not show that sexual harassment is commonplace in order to argue that it is severe for those afflicted, or even that it is sex discrimination. However, if one shows that sexual harassment in employment systematically occurs between the persons and under the conditions that an analysis of it as discrimination suggests -- that is, as a function of sex as gender -- one undercuts the view that it occurs because of some unique chemistry between particular (or aberrant) individuals. That sexual harassment does occur to a large and diverse population of women supports an analysis that it occurs because of their group characteristic, that is, sex. Such a showing supports an analysis of the abuse as structural, and as such, worth legal attention as sex discrimination, not just as unfairness between two individuals, which might better be approached through private law.
If the problem is so common, one might ask why it has not been commonly analyzed or protested. Lack of public information, social awareness, and formal data probably reflects less its exceptionality than its specific pathology. Sexual subjects are generally sensitive and considered private; women feel embarrassed, demeaned, and intimidated by these incidents.12 They feel afraid, despairing, utterly alone, and complicit. This is not the sort of experience one discusses readily. Even more to the point, sexual advances are often accompanied by threats of retaliation if exposed. Revealing these pressures enough to protest them thus risks the very employment consequences which sanctioned the advances in the first place.
It is not surprising either that women would not complain of an experience for which there has been no name. Until 1976,13 lacking a term to express it, sexual harassment was literally unspeakable, which made a generalized, shared, and social definition of it inaccessible.
The unnamed should not be mistaken for the nonexistent. Silence often speaks of pain and degradation so thorough that the situation cannot be conceived as other than it is:
When the conception of change is beyond the limits of the possible, there are no words to articulate discontent, so it is sometimes held not to exist. This mistaken belief arises because we can only grasp silence in the moment in which it is breaking. The sound of silence breaking makes us understand what we could not hear before. But the fact we could not hear does not prove that no pain existed.14
As Adrienne Rich has said of this kind of silence, "Do not mistake it for any kind of absence."15 Until very recently issues analogous to sexual harassment, such as abortion, rape, and wife beating existed at the level of an open secret in public consciousness, supporting the (equally untrue) inference that these events were infrequent as well as shameful, and branding the victim with the stigma of deviance. In light of these factors, more worth explaining is the emergence of women's ability to break the silence.
Victimization by the practice of sexual harassment, so far as is currently known, occurs across the lines of age, marital status, physical appearance, race, class, occupation, pay range, and any other factor that distinguishes women from each other.16 Frequency and type of incident may vary with specific vulnerabilities of the woman, or qualities of the job, employer, situation, or workplace, to an extent so far undetermined. To this point, the common denominator is that the perpetrators tend to be men, the victims women. Most of the perpetrators are employment superiors, although some are co-workers or clients. Of the 155 women in the Working Women United Institute sample, 40 percent were harassed by a male superior, 22 percent by a co-worker, 29 percent by a client, customer, or person who had no direct working relationship with them; 1 percent (N = 1) were harassed by a subordinate and 8 percent by "other."17
As to age and marital status, Redbook finds the most common story is of a woman in her twenties fending off a boss in his sixties, someone she would never choose as a sexual partner. The majority of women who responded to the survey, in which 92 percent reported incidents of sexual harassment, were in their twenties or thirties, and married. Adultery seems no deterrent. However, many women were single or formerly married and ranged in age from their teens to their sixties. In the Working Women United Institute speak-out, one woman mentioned
an incident that occurred when she was working as a child model at age ten; another reported an experience at age 55.18 The women in that sample ranged in age from 19 to 61. On further investigation, sexual harassment as a system may be found to affect women differentially by age, although it damages women regardless of age. That is, many older women may be excluded from jobs because they are considered unattractive sex objects, in order that younger women can be hired to be so treated. But many women preface their reports of sexual harassment with evaluations of their appearance such as, "I am fat and forty, but…"19
Sexual harassment takes both verbal and physical forms. In the Working Women United Institute sample, approximately a third of those who reported sexual harassment reported physical forms, nearly two-thirds verbal forms.20 Verbal sexual harassment can include anything from passing but persistent comments on a woman's body or body parts to the experience of an eighteen-year-old file clerk whose boss regularly called her in to his office "to tell me the intimate details of his marriage and to ask what I thought about different sexual positions."21 Pornography is sometimes used.22 Physical forms range from repeated collisions that leave the impression of "accident" to outright rape. One woman reported unmistakable sexual molestation which fell between these extremes: "My boss … runs his hand up my leg or blouse. He hugs me to him and then tells me that he is ‘just naturally affectionate.’"23
There is some suggestion in the data that working class women encounter physical as well as verbal forms of sexual harassment more often than middle class and/or professional women, who more often encounter only the verbal forms.24 However, women's class status in the strict sense is often ambiguous. Is a secretary for a fancy law firm in a different class from a secretary for a struggling, small business? Is a nurse married to a doctor "working class" or "middle class" on her job? Is a lesbian factory worker from an advantaged background with a rich ex-husband who refuses to help support the children because of her sexual preference "upper class"? In any case, most women who responded to the Redbook survey, like most employed women, were working at white collar jobs earning between $5,000 and $10,000 a year. Many more were blue collar, professional, or managerial workers earning less than $5,000 or more than $25,000 a year. They report harassment by men independent of the class of those men.
The Working Women United Institute sample, in which approximately
70 percent reported incidents of sexual harassment, presented a strikingly typical profile of women's employment history. Almost all of the women had done office work of some kind in their work life. A quarter had done sales, a quarter had been teachers, a third file clerks, 42 percent had been either secretaries or receptionists, and 29 percent had done factory work. Currently, fifty-five were food service workers with the remainder scattered among a variety of occupations. The average income was $101-$125 per week. This is very close to, or a little below, the usual weekly earnings of most working women.25
Race is an important variable in sexual harassment in several different senses. Black women's reports of sexual harassment by white male superiors reflect a sense of impunity that resounds of slavery and colonization. Maxine Munford,* recently separated and with two children to support, claimed that on the first day at her new job she was asked by her employer "if she would make love to a white man, and if she would slap his face if he made a pass at her." She repeatedly refused such advances and was soon fired, the employer alleging she had inadequate knowledge and training for the job and lacked qualifications. His last statement before she left was: "If you would have intercourse with me seven days a week I might give you your job back."26 Apparently, sexual harassment can be both a sexist way to express racism and a racist way to express sexism. However, black women also report sexual harassment by black men and white women complain of sexual harassment by black male superiors and co-workers. One complaint for slander and outrageous conduct accused the defendants of making statements including the following:
warning customers about plaintiff's alleged desire to "get in his pants," pointing out that plaintiff had large breasts, stating "Anything over a handful is wasted," calling plaintiff "Momma Fuller" and "Big Momma," referring to her breasts, "Doesn't she have nice (or large) breasts?" "Watch out, she's very horny. She hasn't gotten any lately" "Have you ever seen a black man's penis?" "Do you know how large a black man's penis is?" "Have you ever slept with a black man?" "Do you want to stop the car and screw in the middle of the street?"27
One might consider whether white women more readily perceive themselves as sexually degraded, or anticipate a supportive response
*Her lawsuit, Munford v. James T. Barnes & Co., 441 F. Supp. 459 (E.D. Mich. 1977), is discussed in chapter 4, infra, at 73 ff.
when they complain, when they are sexually harassed by a black man than by a white man. Alternatively, some white women confide that they have consciously resisted reporting severe sexual harassment by black men to authorities because they feel the response would be supportive for racist reasons. Although racism is deeply involved in sexual harassment, the element common to these incidents is that the perpetrators are male, the victims female. Few women are in a position to harass men sexually, since they do not control men's employment destinies at work,28 and female sexual initiative is culturally repressed in this society.29
As these experiences suggest, the specific injury of sexual harassment arises from the nexus between a sexual demand and the workplace. Anatomized, the situations can be seen to include a sexual incident or advance, some form of compliance or rejection, and some employment consequence. Sometimes these elements are telescoped, sometimes greatly attenuated, sometimes absent. All are variable: the type of incident or advance, the form of response, and the kind and degree of damage attributable to it.
The critical issues in assessing sexual harassment as a legal cause of action -- the issues that need to be explored in light of women's experiences -- center upon the definition of and the relationship among three events: the advance, the response, and the employment consequence. Critical questions arise in conceptualizing all three. Where is the line between a sexual advance and a friendly gesture? How actively must the issue be forced? If a woman complies, should the legal consequences be different than if she refuses? Given the attendant risks, how explicitly must a woman reject? Might quitting be treated the same as firing under certain circumstances? To get legal relief, must a job benefit be shown to be merited independent of a sexual bargain, or is the situation an injury in itself? When a perpetrator insists that a series of touchings were not meant to be sexual, but the victim experienced them as unambiguously sexual, assuming both are equally credible, whose interpretation controls when the victim's employment status is damaged? These issues will be explored here in the context of women's experiences; suggestions for their legal treatment will be made in chapter 6. In addressing these questions, it is important to divide matters of persuasion from issues of fact, and both of these from issues which go to the core of the legal concept of the discrimination. The first distinguishes the good from the less
good case; the second sets a standard of proof; the third draws a line between a legal claim and no claim at all.
Women's experiences of sexual harassment can be divided into two forms which merge at the edges and in the world. The first I term the quid pro quo, in which sexual compliance is exchanged, or proposed to be exchanged, for an employment opportunity. The second arises when sexual harassment is a persistent condition of work. This distinction highlights different facets of the problem as women live through it and suggests slightly different legal requirements. In both types, the sexual demand is often but an extension of a gender-defined work role. The victim is employed, hence treated, "as a woman." In the quid pro quo, the woman must comply sexually or forfeit an employment opportunity. The quid pro quo arises most powerfully within the context of horizontal segregation, in which women are employed in feminized jobs, such as office work, as a part of jobs vertically stratified by sex, with men holding the power to hire and fire women. In a job which is defined according to gender, noncompliance with all of the job's requirements, which may at the boss's whim come to include sexual tolerance or activity, operatively "disqualifies" a woman for the job. In sexual harassment as a condition of work, the exchange of sex for employment opportunities is less direct. The major question is whether the advances themselves constitute an injury in employment.
QUID PRO QUO
This category is defined by the more or less explicit exchange: the woman must comply sexually or forfeit an employment benefit. The exchange can be anything but subtle, although its expression can be euphemistic: "If I wasn't going to sleep with him, I wasn't going to get my promotion";30 "I think he meant that I had a job if I played along";31 "You've got to make love to get a day off or to get a good beat";32 "[Her] foreman told her that if she wanted the job she would have to be ‘nice’";33 "I was fired because I refused to give at the office."34
Assuming there has been an unwanted sexual advance, a resulting quid pro quo can take one of three possible shapes. In situation one, the woman declines the advance and forfeits an employment opportunity. If the connections are shown, this raises the clearest pattern: sexual advance, noncompliance, employment retaliation. In situation
two, the woman complies and does not receive a job benefit. This is complex: was the job benefit denied independently of the sexual involvement? Is employment-coerced sex an injury in itself or does compliance mean consent? Should the woman in effect forfeit the job opportunity as relief because she complied sexually? In situation three, the woman complies and receives a job benefit. Does she have an injury to complain of? Do her competitors? In a fourth logical possibility, which does not require further discussion, the woman refuses to comply, receives completely fair treatment on the job, and is never harassed again (and is, no doubt, immensely relieved). In this one turn of events, there truly is "no harm in asking."35
In situation one, the injurious nexus is between the imposition of the sexual requirement and the employment retaliation following upon its rejection. To date, all of the legally successful suits for sexual harassment* have alleged some form of the trilogy of unwanted advances, rejection, retaliation. In Adrienne Tomkins's case** the advances occurred over a lunch that was to include a discussion of her upcoming promotion. She refused to comply, was threatened, demoted, and eventually terminated.36 In the case of Paulette Barnes,† her supervisor repeatedly insisted that she engage in social and sexual activity with him. When she refused, he took away her duties and eventually abolished her position. A witness in Barnes's case described a classic situation of this type in her own experience with the same man:
Q. Did you ever have any problems working under Mr. Z?
The Witness: Well, the problem started when I took a trip to Puerto Rico with Mr. Z in February of 1971. When we got back he took all of my secretarial duties and gave them to E_____ M_____, who was white. Something happened in Puerto Rico, and he used to write me nasty little notes and things like that.
By Miss Barnes:†
Q. Could you tell us exactly what happened in Puerto Rico or is this confidential information?
*These cases are discussed in detail in chapter 4.
**Her lawsuit is reported as Tomkins v. Public Service Electric & Gas Co., 422 F. Supp. 553 (D. N. J. 1977) reversed on appeal, 568 F.2d 1044 (3rd Cir. 1977), discussed in chapter 4, infra, at 69-72.
†Her lawsuit is reported as Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977), discussed in chapter 4, infra, at 65-68.
†Ms. Barnes was not represented by counsel at this point in the proceedings.
A. Well, when we went to Puerto Rico, I was going there as his secretary to take notes on the conferences…. When we got there he was supposed to make hotel reservations. He took that out of my hands and when we got there he didn't do it. We waited around until 10:00 or 11:00 that night to get a hotel.
When we got there we went upstairs and put our bags in the room. His bags were in the room, so, he said he had to go and take someone to another hotel, and he would be back to get his things.
When he came back he started undressing, and I told him that he could not stay in the same room with me. He asked me why. and I said --
Mr. H_____: (attorney for Mr. Z) I think we get the picture.
Appeals Examiner: There was a dispute over room accommodations. Is this one of the problems?
The Witness: Right.
Appeals Examiner: You came back and then what happened?
The Witness: He started writing me nasty little notes telling me he no longer wanted me to work for him. He started giving all of his duties to E_____ instead of me, and he even asked me to quit working for him because of what happened.37
This structure was also presented in Alexander v. Yale, a case complaining of sexual harassment in education. A student who refused a professor's advances allegedly received a low grade in a course.38 In a related situation, a woman who declined to "join [her employer] in his bed" while on a business trip was reminded at lunch the next day that she was soon to be reviewed for reappointment, that her chances depended largely upon his support and recommendation, and that she would be well served if she "linked both her professional work and her personal life more closely to his own needs." She did not do so. Subsequently she was not renewed, a decision in which his lack of support and negative recommendation were instrumental. He stated publicly that in his decision he regretfully recognized the fact that they had not been able to establish "a closer personal relationship." Women commonly report such a man's insistence that a sexual relationship is essential to their working relationship39 and that without it the women cannot maintain their jobs.
Some employers use job sanctions to promote the sexual harassment of their female employees by male customers or clients, as well as to assure their own sexual access, and to punish the noncompliant:
June, a waitress in Arkansas, was serving a customer when he reached up her skirt. When she asked her manager for future protection against such incidents,
she was harassed by him instead. "They put me on probation," she recalled, "as if I was the guilty one. Then things went from bad to worse. I got lousy tables and bad hours."40
In each case, following the woman's refusal, the man retaliated through use of his power over her job or career. Retaliation comes in many forms. The woman may be threatened with demotions and salary cuts; unfavorable material may be solicited and put in her personal file; or she may be placed on disciplinary layoff.41 In one case, a sexually disappointed foreman first cut back the woman's hours, then put her on a lower-paying machine. When she requested extra work to make up the difference, he put her to sweeping floors and cleaning bathrooms. He degraded and ridiculed her constantly, interfered with her work so it was impossible for her to maintain production, and fired her at two o'clock one morning.42 In another case, failing to extract sexual favors, the supervisor belittled the woman, stripped her of her job duties, and then abolished her job.43 In another, a supervisor, following rejection of his elaborate sexual advances, barraged the woman with unwarranted reprimands about her job performance, refused routine supervision or task direction, which made it impossible for her to do her job, and then fired her for poor work performance.44
Sudden allegations of job incompetence and poor attitude commonly follow rejection of sexual advances and are used to support employment consequences. When accused of sexual harassment, men often respond that they were only trying to initiate a close personal relationship with a woman they liked very much. In Margaret Miller's situation,* her superior at the bank appeared at her door, bottle in hand, saying, "I've never felt this way about a black chick before."45 Women who refuse become just as abruptly disliked. In this case, the bank stated that the reason for Ms. Miller's firing was her "insubordination to Mr. Taufer."46 Under parallel factual circumstances, one judge pointedly concluded: "Ms. Elliott was not terminated because of … her insubordination except such insubordination as was embodied in her refusal to go along with Lawler's propositions."†47
*Her lawsuit is reported as Miller v. Bank of America, 418 F. Supp. 233 (N.D. Cal. 1976), appeal pending, discussed in chapter 4, infra, at 61-63.
†Sherry Elliott's lawsuit, Elliott v. Emery Air Freight, is unreported; it is discussed in chapter 4, infra, at 72-73.
Women whose work had been praised and encouraged suddenly find themselves accused of incompetence or of sabotaging their employer's projects and blamed for any downturn in business fortunes. The investigator in Diane Williams's case* was suspicious:
How did an employee hired in January suddenly become so bad that during the period from July 17 through September 11, a case was built for her separation? … I believe a program of faultfinding, criticism and documentation of minor offenses was undertaken.48
Some employers do not even bother to create the appearance of actual job incompetence:
The man who was second in command to my boss asked me out and I fielded it. I was charming but I said no. He said that I'd be sorry…. Later on, my boss said he had evidence of my inefficiency on which he could fire me, and when I said it wasn't possible, he said he would make evidence. He was supported by the man who had asked me out.49
Situation two, the second of the three forms of the quid pro quo, requires inquiry into the impact of compliance. Even less is known about women who comply than about those who refuse. But there is little to suggest that women who meet sexual conditions receive job benefits. More common is the following: "I'm told by the supervisors that the women on the oil slopes and in the camps are fired if they do and also fired if they don't."50 This suggests that employment sanctions simultaneously prohibit and compel compliance with employment related sexual advances. Women both must and may not comply -- or face the consequences. Constantina Safilios-Rothschild suggests one possible explanation for men's failure to deliver promised job rewards:
Actually it has been quite questionable whether women did in fact obtain economic security through marriage, or desirable occupational advancement in exchange for sexual favors. In the latter case, most often adulterous men, for a variety of motivations (including guilt and fear that their infidelity will be suspected or known) have not returned favors or have done very little. Others have simply not honored the existence of any self-understood or implicit contract of exchange of favors.51
*Diane Williams's case is reported as Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976) and is discussed in chapter 4, infra, at 63-65.
This implies that men believe that whenever women are advanced on the job, an exchange of sexual favors must have occurred.
If such a compact were made and broken, a woman attempting to get the benefit of her bargain would encounter little sympathy and probably less legal support. But this misconstrues the issue. Whether or not the woman complies, the crucial issue is whether she was sexually coerced by economic threats or promises. Requiring her to decline would allow the employer to impose such a deal in bad faith, secure sexual favors, and then assert she had no right to complain because she had done what he had no right to demand. Her compliance does not mean it is not still blackmail. Nevertheless, allowing a compliant woman to sue for sexual harassment when an exchange fails leaves open the unattractive possibility of encouraging women to acquiesce in unwanted sex for purposes of career advancement, knowing that they can enforce the man's promise if he does not perform as agreed. For this reason (among others) it would seem preferable to define the injury of sexual harassment as the injury of being placed in the position of having to choose between unwanted sex and employment benefits or favorable conditions. From the standpoint of proof, situation two would then make a woman's case weaker (although not impossible) than before she complied. It would simply undercut the plausibility of the argument that her advancement was contingent upon compliance. Such a posture would support women in refusing unwanted sex, and discourage abuse of the cause of action through attempts to get whatever could be gained through sexual compliance and reserving legal resort for times when it did not work out.
"The other side" of sexual harassment is commonly thought to be raised by situation three, in which women who comply with sexual conditions are advantaged in employment over men or over women who refuse. Despite the indications that few benefits redound to the woman who accedes, much folklore exists about the woman who "slept her way to the top" or the academic professional woman who "got her degree on her back." These aphorisms suggest that women who are not qualified for their jobs or promotions acquire them instead by sexual means. Do these stories raise serious difficulties for a conceptualization of sexual harassment as integral to women's employment disadvantagement?52
Since so few women get to the top at all, it cannot be very common for them to get there by sexual means. Yet undoubtedly some individuals, whether by calculation or in the face of discrimination and lack of recognition of their qualifications, must have followed this course. A mix of these elements is suggested in the following (undocumented) observation: "By using sex, women were able to diminish the social distance between important, rich or powerful men and themselves, and to obtain desirable goods such as economic security and social status through marriage, or a desirable job or promotion through sexual relations with an influential man."53 Although the author of this statement qualifies it substantially in a footnote, she concludes: "There are, however, even at present a few outstanding examples of professional women, businesswomen, and artists whose occupational success is largely due to a powerful male with whom they have a long-standing and open relationship."54 This portrays a relationship that appears more like a consensual one than like unwanted sex acquiesced in for career advancement, although it is admittedly difficult to tell the difference.
As discussed earlier, women consistently occupy the lowest-status, lowest-paying jobs, much lower than men of the same education and experience. Given this, it is difficult to argue that women in general receive advantages even remotely comparable with the sexual harassment to which they are subjected. This, after all, is the implication of the supposed "other side": some women are hurt by the practice, it is said, but then look at all the women who benefit from it. Initially, it seems worth asking, as a hypothetical parallel, whether if some blacks are advantaged just because they are black, that is a reason why blacks who are disadvantaged because they are black should continue to be. Next, from the available data on sex discrimination, it cannot be deduced that women in general (and certainly not in individual cases) derive undeserved job opportunities from sexual compliance or by any other means. On the contrary, it would be difficult to show that cooperating women derive advantages commensurate even with the disadvantage of being female. Of course, it is impossible to estimate how much worse women's position might be without the possible contribution of unwanted sex to their side of the bargain. Overall, however, the statistics on discrimination suggest that no fulfillment of any requirement, sexual demands included, results
in job status for which women are qualified, much less undeserved advancement.
Presuming for the argument that these stories have some truth, one might look at women who "succeed" this way as having extricated themselves from a situation of sexual harassment. Rather than deriving unfair advantages because of their sex, perhaps they had to meet unfair requirements because of their sex. In this perspective, the woman who "slept her way to the top" may have been the woman who would not have been hired or promoted, regardless of qualifications, without fulfilling sexual conditions, conditions equally qualified men do not have to fulfill. Moreover, for every woman who "got her degree on her back," there were men who offered rewards, supervision, and attention to her development only at a sexual price. To the extent they are true, then, these stories document a point seldom made: men with the power to affect women's careers allow sexual factors to make a difference. So the threats are serious: those who do not comply are disadvantaged in favor of those who do. (It is also seldom considered that a woman might be an attractive sexual object to her superior for the same reasons that qualify her for the position.)
Further, there may be compelling explanations for these stories other than their truth. How many men find it unbearable that a woman out-qualifies them in an even competition? Perhaps they assuage their egos by propagating rumors that the woman used her sexuality -- something presumptively unavailable to men -- to outdistance them. These stories may exemplify a well-documented inability of both sexes to see women in any but sexual terms. Willingness to believe the stories may illustrate the pervasive assumption that, since a career is so intrinsically inappropriate for a woman, her sexuality must define her role in this context, as well as in all others. This dovetails with the prior assumption that if a woman's sexuality is present at all, she must be receiving unfair consideration.
Certainly it is important to establish in individual cases whether a woman is complaining about a failed attempt cynically to use sex to get ahead or a bona fide situation of sex imposed as a career requirement. But to believe that instances raised in situation three symmetrically outweigh the injury that women as a whole suffer from sexual harassment ignores the evidence and provides a convenient excuse not to take the problem seriously. Whatever they mean, people who
do not take sexual harassment seriously are an arm of the people who do it.
CONDITION OF WORK
In the quid pro quo, the coercion behind the advances is clarified by the reprisals that follow a refusal to comply. Less clear, and undoubtedly more pervasive, is the situation in which sexual harassment simply makes the work environment unbearable. Unwanted sexual advances, made simply because she has a woman's body, can be a daily part of a woman's work life. She may be constantly felt or pinched, visually undressed and stared at, surreptitiously kissed, commented upon, manipulated into being found alone, and generally taken advantage of at work -- but never promised or denied anything explicitly connected with her job. These events occur both to "token women," whose visibility as women is pronounced and who often present a "challenge" to men,55 and to women in traditional "women's jobs," who are defined as accessible to such incursions by the same standard that gives them the job at all. Never knowing if it will ever stop or if escalation is imminent, a woman can put up with it or leave. Most women hardly choose to be confronted by "the choice of putting up with being manhandled, or being out of work."56 Most women are coerced into tolerance.
This feature of women's lives has sometimes surfaced in other people's lawsuits, although it has not been previously considered actionable in itself. One case from 1938 presents a zenith in women's vicarious relationship to the workplace. A long-time employee alleged (without success) that he was fired because his wife refused his superior's sexual advances.57 In another case for reinstatement and back pay, in which the employer was accused of firing an employee because of his union activity, one comes upon the following account of the employee's conduct on the job:
He regularly made lewd remarks and suggestions to the waitresses and customers…. He caused at least one waitress to quit her job when he told her she would have to have sexual relations with him or he would make life difficult for her. He made similar advances to another waitress. Once Nichols called a waitress over to where he was seated drinking with a customer and solicited her to engage in an act of prostitution with the customer.58
Sexual harassment is effective largely because women's employment status is depressed. The following account, a composite of several individual accounts, illustrates the interplay of women's feelings of inadequacy with an objective assessment of their options in the labor market. The employer has an eye for energetic, competent, chronically underemployed women in a captive labor market (such as spouses of university men). They are intimidated by the work world. For the first time in their lives, the job gives these women responsibilities, a real salary, a chance to be creative, and quick advancement for good performance. They are grateful; "thrilled." They love the work and feel recognized for their achievements and potential. They work hard and create a niche for themselves. They need the money. Then, beginning on off-times, perhaps when there are unusual work demands, the underlying sexual innuendo is made explicit. Or the man sends the woman on a business trip, shows up at the hotel room where he had booked her, and rapes her.
At this point, otherwise small things come together: all the other women who have precipitously left "such a good job"; the number of women on long, paid leaves that become terminal; the stereotypically attractive appearance of the women, including a ban on long pants at the office. To an individual woman, his demand that she be constantly emotionally available to him; increasingly using her "as a verbal carpet"; his jealousy of her friendships on the job; his casual, even concerned inquiry into her sex life; his lack of desire to meet her husband and his uncomfortableness (or transparent obsequiousness) when he drops in. It becomes clear that his personnel policy is based on his sexual feelings.
Given the woman's insecurity about her work competence, the job may begin to seem like make-work to her, an excuse to keep her available so long as she is sexually compliant, or he thinks she might be. Or the job may continue to be very important to her. Surely she knows there are many women just like her who will take her place if she leaves. Should a woman have to leave a job she needs financially, qualifies for, or finds fulfilling because the employer can make his sexual needs part of it? Or should she have no recourse other than the hope he will stop, or never try again, or that she can stand it just for the chance to work there, or to work at all? Will it ever be different any place else? When workplace access, advancement, and tolerability
(not to mention congeniality) depend upon such an employer's good will, women walk very thin lines between preserving their own sanity and self-respect and often severe material hardship and dislocation.
Two recent cases of women seeking unemployment compensation from jobs they left because of employer sexual harassment illustrate the problem, with variations, in somewhat more detail. In a California case,* Nancy Fillhouer59 left work because she could no longer tolerate the remarks of her employer, which were "slanderous, crude and vulgar," and because he had "tried to exploit her, thus making her job unbearably difficult from an emotional standpoint." In the language of the referee:
She said he was constantly remarking concerning his wishes to have sexual contact with her, and that she reacted in such a way as to certainly inform him that such intentions were not welcome. When she would walk by him, he would occasionally pat her behind. He would make comments to his friends about her figure or legs whenever she wore a dress, implying that she was a loose woman and would do anything with anyone. The claimant asserted that the employer attempted to arrange a liaison with one of his friends for a price. On another occasion, she said one of his friends came to the office and made a comment about the weather being cold, and the employer said that the claimant could keep him warm.60
In a similar case in New York State, Carmita Wood61 reported that she was forced to leave her job because of the physical and emotional repercussions of a superior's sexual advances. He constantly "incorporated palpably sexual gestures into his movements."62 When speaking to her "he would lean against her, immobilizing her between his own body and the chair and the desk."63 Sometimes he would "stand with his hands shaking in his pockets and rock against the back of a chair, as if he were stimulating his genitals."64
A similar barrage of indignities sustained by one woman in her job as a "photo finishing girl" at a camera store in Oregon† provides a third example. Her complaint alleges that on many occasions her superiors and co-workers, in the presence of other employees and customers, "peer[ed] down plaintiff's blouse from the upper level and stairways above the main sales area of Mr. Pix Camera Store, assisted
*This case is discussed in detail in chapter 4, infra, at 80-81.
†This case, Fuller v. Williames, No. A7703-04001 (Portland, Oregon), is discussed in chapter 6, infra, at 168-69.
by binoculars or telephoto lenses." In addition to making frank propositions and references to the large size of her breasts and of their penises, the defendants described the woman as desiring them sexually. Specific statements included:
‘Did you just have sex with your husband? What was it like?’, ‘Is that all you do is have sex with your husband?’, ‘Do you sleep naked with your husband’ pointing out that women were ‘better off in bed,’ meant ‘only for the bedroom or the kitchen,’ that plaintiff and other women employees were ‘only interested in sleeping with the male employees,’ that the former photofinishing ‘girl’ ‘was a good lay. We screwed her down in the basement. We all had sex with her.’, ‘Do you think your husband would let me take his pants off in front of my camera if I lined him up with a nude female model?’, ‘Tell your husband I want to do nudes of him. I must photograph him.’ that plaintiff was unfit to perform her duties, that women, including plaintiff, were ‘not fit for the photography business,’ ‘incompetent,’ unable to work under pressure without bursting into tears, ‘couldn't take it,’ ‘often stayed home due to headaches,’ ‘can't be relied upon,’ ‘possess a lesser ability to photograph,’ ‘don't know which end of a camera is up,’ ‘get shows in galleries by sleeping with gallery directors,’ ‘We've never had a girl selling cameras here. It might be an interesting experiment.’ ‘We can't hire a woman who has a boyfriend or a husband and have them last any length of time because their partners become very jealous of all us good looking males.’65
The connections between sexual desirability and contempt for women, the denigration of women as workers, and exclusion of women from job opportunities have seldom been more vivid. All the careful admissions that women may be oversensitive cannot over-whelm the fact that such comments make women feel violated for good reason. Nor are these remarks aberrations. They make graphic and public the degradation women commonly experience as men's sexual playthings.
At no point in these cases was there an attempt to force the victim into more extensive sexual involvement. But the only reason sexual intercourse was not included was that the perpetrator did not so choose. Nor were the women told that if they did not submit to this molestation, they would be fired, although again this was the employer's choice. The victim's active cooperation with, or submission to, this behavior is relatively irrelevant to its occurrence. Short of physical assault, there is very little one can do to stop someone intent upon visual and verbal molestation, particularly if one has access to few forms of power in the relationship. These are hardly "arm's length"
transactions, with the man as dependent upon an affirmative response as the woman is upon maintaining his good will. They are transactions which make his sexism a condition of her work.
Sexual harassment as a working condition often does not require a decisive yes or no to further involvement. The threat of loss of work explicit in the quid pro quo may be only implicit without being any less coercive. Since communicated resistance means that the woman ceases to fill the implicit job qualifications, women learn, with their socialization to perform wifelike tasks, ways to avoid the open refusals that anger men and produce repercussions. This requires "playing along," constant vigilance, skillful obsequiousness, and an ability to project the implication that there is a sexual dimension to, or sexual possibilities for, the relationship, while avoiding the explicit "how about it" that would force a refusal into the open.
A cocktail waitress, whose customer tips measure her success at this precarious game, reflects upon it.
[A waitress] must learn to be sexually inviting at the same time that she is unavailable. This of course means that men will take out their lust vicariously through lewd and insinuating words, subtle propositions, gestures. She must manage to turn him off gently without insulting him, without appearing insulted. Indeed she must appear charmed by it, find a way to say no which also flatters him.66
Another waitress makes the economic connection explicitly:
[Men think] they have a right to touch me, or proposition me because I'm a waitress. Why do women have to put up with this sort of thing anyway? You aren't in any position to say "get your crummy hands off me" because you need the tips. That's what a waitress job is all about.67
Still another corroborates:
Within my first month as a waitress, it was made very clear to me that if you are friendly enough, you could have a better station, better hours, better everything…. If you're tricky enough, you just dangle everybody but it reaches a point where it's too much of a hassle and you quit and take something else. But when you have children, and no support payments, you can't keep quitting.68
While these women's responses do not constitute "compliance" in the fullest sense, in another sense nonrejection is all the compliance that is required.
Noncompliance is very problematic when sexual harassment is a working condition. Consider the opportunities for rejection, both immediate and long term, allowed by the situation depicted in the following woman's statement, prepared in an attempt to organize the women in her office:
I, _____, do hereby testify that during the course of my employment with the [company] I have suffered repeated and persistent sexual harassment by Mr. X, [head] of the [company].
Mr. X has directly expressed prurient interest in me on several occasions when he called me into his office as an employee, in his capacity as my superior, during normal working hours. I have been made audience to sexually explicit language and imagery in Mr. X's office during normal working hours. I have been intimidated by his power over my job and future, his connections in [the local government], his reputation for vindictiveness, and the gun he carries, often visibly. In his office, Mr. X has initiated physical sexual contact with me which I did not want.
I believe, and have been made to feel by Mr. X, that my well-being on the job and advancement as an employee of the [company], as well as my recommendations for future jobs, are directly contingent upon my compliance with Mr. X's sexual demands.
It is my opinion that Mr. X's hiring procedures are directly influenced by his sexual interests and that most if not all women who work for the [company] undergo some form of sexual harassment.
Tolerance is the form of consent that sexual harassment as a working condition uniquely requires. The evidence of such cases after they become quid pro quo tends to confirm the implicit judgment by the woman who "goes along": it is important, beyond any anticipated delivery, to maintain the appearance of compliance with male sexual overtures, a posture of openness. In many cases, the men seem only to want to know they can have a date, to be able "accidentally" to touch a woman intimately at will, or, in a verbal analogue to exhibitionism, say sexy words in her presence, while acting as if something else entirely is happening. The telling aspect is that the decisively nontolerating woman must suddenly be eliminated. Her mere presence becomes offensive; to be reminded of her existence, unbearable. Desperate strategies are devised, including flat lies, distortions, and set-ups, to be rid of her immediately. Something fundamental to male identity feels involved in at least the appearance of female compliance, something that is deeply threatened by confrontation with a woman's
real resistance, however subtly communicated. At the point of resistance the quid pro quo that was implicit all along in the working condition--the "tolerate it or leave" in her mind becomes "now that you don't tolerate it, you're leaving" from the boss--is forced into the open, and the two categories converge.
Before this point, the issues are considerably more difficult. The examples suggest that when sexual harassment occurs as a condition of work, it does not require compliance, exactly, on the woman's part. For consummation, nonrejection is not even required; rejection often has no effect. Since little or no active participation or cooperation is required of women in these sexual situations, how explicit should rejection have to be before she can protest the treatment? This is somewhat analogous to asking how ardently a woman must resist rape before she will be considered to have resisted, that is, not to have consented to it. In a case of sexual harassment, it would be paradoxical if, so long as a superior has the power to force sexual attentions by adopting forms of sexual expression that do not require compliance--for example, sitting naked in his office in her presence while giving dictation--a woman would be precluded from legal action or other complaint because she had not properly "refused." How is nontolerance to be conveyed? She can threaten or throw tantrums, but ultimately, what is she supposed to do besides leave work?
Should women be required to counterattack in order to force the man into explicit employment retaliation so she has something to complain about? The problem here is again analogous to a problem with the rape laws: a victim who resists is more likely to be killed, but unless she fights back, it is not rape, because she cannot prove coercion. With sexual harassment, rejection proves that the advance is unwanted but also is likely to call forth retaliation, thus forcing the victim to bring intensified injury upon herself in order to demonstrate that she is injured at all. Aside from the risks this poses to the woman in a situation not her fault, to require a rejection amounts to saying that no series of sexual advances alone is sufficient to justify legal intervention until it is expressed in the quid pro quo form. In addition, it means that constant sexual molestation would not be injury enough to a woman or to her employment status until the employer retaliates against her job for a sexual refusal which she never had the chance to make short of leaving it. And this, in turn, means that so long as the sexual situation is constructed with enough coerciveness,
subtlety, suddenness, or one-sidedness to negate the effectiveness of the woman's refusal, or so long as her refusals are simply ignored while her job is formally undisturbed, she is not considered to have been sexually harassed.
IMPACT OF SEXUAL HARASSMENT
Women's feelings about their experiences of sexual harassment are a significant part of its social impact. Like women who are raped, sexually harassed women feel humiliated, degraded, ashamed, embarrassed, and cheap, as well as angry. When asked whether the experience had any emotional or physical effect, 78 percent of the Working Women United Institute sample answered affirmatively. Here are some of their comments:
As I remember all the sexual abuse and negative work experiences I am left feeling sick and helpless and upset instead of angry…. Reinforced feelings of no control--sense of doom … I have difficulty dropping the emotion barrier I work behind when I come home from work. My husband turns into just another man…. Kept me in a constant state of emotional agitation and frustration; I drank a lot…. Soured the essential delight in the work…. Stomachache, migraines, cried every night, no appetite.*69
In the Working Women United Institute study, 78 percent of the women reported feeling "angry," 48 percent "upset," 23 percent "frightened," 7 percent "indifferent," and an additional 27 percent mentioned feeling "alienated," "alone," "helpless," or other. They tend to feel the incident is their fault, that they must have done something, individually, to elicit or encourage the behavior, that it is "my problem."70 Since they believe that no one else is subjected to it, they feel individually complicit as well as demeaned. Almost a quarter of the women in one survey reported feeling "guilty."
Judging from these responses, it does not seem as though women want to be sexually harassed at work. Nor do they, as a rule, find it flattering. As one explanation for women's apparent acquiescence, Sheila Rowbotham hypothesizes that (what amounts to) sexually harassed women are "subtly flattered that their sex is recognized. This makes them feel that they are not quite on the cash nexus, that they
* Ellipses separate different persons' responses.
matter to their employer in the same way that they matter to men in their personal lives."71 While the parallel to home life lends plausibility to this analysis, only to percent of the women in the Working Women United Institute sample and 15 percent of the Redbook sample* reported feeling "flattered" by being on the sex nexus. Women do connect the harasser with other men in their lives, but with quite different results: "It made me think that the only reason other men don't do the same thing is that they don't have the power to." The view that women really want unwanted sex is similar to the equally self-serving view that women want to be raped. As Lynn Wehrli analyzes this:
Since women seem to "go along" with sexual harassment, [the assumption is that] they must like it, and it is not really harassment at all. This constitutes little more than a simplistic denial of all we know about the ways in which socialization and economic dependence foster submissiveness and override free choice… Those women who are able to speak out about sexual harassment use terms such as "humiliating," "intimidating," frightening," "financially damaging," "embarrassing," "nerve-wracking," "awful," and "frustrating" to describe it. These words are hardly those used to describe a situation which one "likes."72
That women "go along" is partly a male perception and partly correct, a male-enforced reality. Women report being too intimidated to reject the advances unambivalently, regardless of how repulsed they feel. Women's most common response is to attempt to ignore the whole incident, letting the man's ego off the hook skillfully by appearing flattered in the hope he will be satisfied and stop. These responses may be interpreted as encouragement or even as provocation. One study found that 76 percent of ignored advances intensified.73 Some women feel constrained to decline gently, but become frustrated when their subtle hints of lack of reciprocity are ignored. Even clear resistance is often interpreted as encouragement, which is frightening. As a matter of fact, any response or lack of response may be interpreted as encouragement. Ultimately women realize that they have their job only so long as they are pleasing to their male superior, so they try to be polite.74
Despite the feelings of guilt, self-loathing, and fear of others' responses, many women who have been sexually harassed do complain
* In both surveys, women could indicate as many feelings as they felt applied to them.
about it to someone--usually a woman friend, family member, or co-worker. About a quarter of them complain to the perpetrator himself.75 Those who complain, as well as those who do not, express fears that their complaints will be ignored, will not be believed, that they instead will be blamed, that they will be considered "unprofessional," or "asking for it," or told that this problem is too petty or trivial for a grown woman to worry about, and that they are blowing it all out of proportion. Carmita Wood's immediate supervisor, to whom she had reported incidents with her other superior at length, when asked to recall if she mentioned them, stated: "I don't remember specifically, but it was my impression, it was mentioned among a lot of things that I considered trivia."76
Women also feel intimidated by possible repercussions of complaint, such as being considered a "troublemaker,"77 or other men in their lives finding out about the incidents, men who typically believe they must have been asking for it. One article reports a man "recalling a woman purchasing clerk who had just received a ‘really good raise’ and then showed up at work ‘all black and blue.’ Her husband had ‘slapped her around' because he thought the raise was a result of ‘putting out.’"78 Women students (and women junior faculty) fear the repercussions of complaint more than the academic and professional consequences of the harassment itself.79
Women's worst fears about the impact of complaint are amply justified. "Most male superiors treat it as a joke, at best it's not serious…. Even more frightening, the woman who speaks out against her tormentors runs the risk of suddenly being seen as a crazy, a weirdo, or even worse, a loose woman."80 Company officials often laugh it off or consider the women now available to themselves as well. One factory worker reports: "I went to the personnel manager with a complaint that two men were propositioning me. He promised to take immediate action. When I got up to leave, he grabbed my breast and said, ‘Be nice to me and I'll take care of you.’"81
Unions' response to women's complaints of sexual harassment by management has been mixed. Some union officials refuse to process grievances based upon claims of sexual harassment. In one such case,82 the complainant sued the union for breach of its duty of fair representation. Ms. Gates, the company's first and only woman employee, was hired as a janitor on the day shift, then reassigned to the night shift.
While on the graveyard shift she was assigned to clean men's restrooms, to which she did not object except for the treatment which she allegedly received while doing her work. She complained that men were using the urinals while she was cleaning; that on occasions she was propositioned and chased around the restrooms, and that the company refused to place locks on the doors to prevent this from happening.83
Her doctor stated that the resulting emotional breakdown made her physically unable to work the night shift. The company then fired her on the grounds that she was unable to perform the work for medical reasons. Through its woman president, the union maintained that the firing was for good cause and urged Ms. Gates to accept the company's offer of reinstatement under the same working conditions. When she refused, the union declined to process her claim, a decision the court held was for the union to make.*
Firm union support was given to four women in another shop who complained to the union of sexual harassment by a male foreman. The National Labor Relations Board reportedly "decided that the foreman would have to apologize to each woman and from then on our relationship would be strictly business."84 The women found this inadequate. The union continued to pursue the issue, intervening directly in their relations with the perpetrator and working to change the pervasive attitude that "any woman who works in an auto plant is out for a quick make."85 It should be noted that this assumption is not limited to auto plants. Men in almost every working context attribute sexual desire to women workers based upon their mere presence as workers in that particular environment. This assumption is professed equally about women who are seen as anomalies on the job (any woman who would seek a male-defined work situation must be there because of men) as for those who are in women's jobs (any woman who would choose a feminine job must be looking for a man). Since no working context is excluded, one cannot conclude that women select particular jobs for sexual reasons. As with rape, the situation seems more to be that men wish to believe that women desire to be sexually attacked and to that end construct virtually any situation as an invitation. Constructed according to these images, women who do convey any sexuality whatever are assumed to be unselective: "If you
* This case is Gates v. Brockway Glass Co., Inc., 93 L.R.R.M. 2367 (C.D. Cal. 1976). Sex discrimination was apparently not raised.
express any sexuality at all, they just assume you're available to them-you know, just anybody."
As a further result of such attitudes, complaining to the perpetrator usually has little good effect. The refusal is ignored or interpreted as the no that means yes. If the no is taken as no, the woman often becomes the target of disappointed expectations. She is accused of prudery, unnaturalness, victorianism: "What's the matter, aren't you liberated? I thought nothing bothered you." And lesbianism. The presumption seems to be that women are supposed to want sex with men, so that a women who declines sexual contact with this particular man must reject all sex, or at least all men. Noncooperative women (including women who carry resistance to the point of official complaint) are accused of trying to take away one of the few compensations for an otherwise meaningless, drab, and mechanized workplace existence, one of life's little joys.86 This essentially justifies oppression on the basis of what it does for the oppressor. When the man is black and the woman white, the emotional blackmail, the "you're not the woman I took you for," often becomes particularly unfortunate. The American heritage of racism that portrayed the white woman as "too good" for the black man is now used to manipulate her white guilt, putting her in the position of seeming to participate in that system's castration of the black man if she declines to have sex with him, and in racist repression if she complains officially.
Women's confidence in their job performance is often totally shattered by these events. They are left wondering if the praise they received prior to the sexual incident was conditioned by the man's perception of the sexual potential in the relationship--or is it only that the later accusations of incompetence are conditioned by his perception of the lack of this possibility? Attempting to decline gracefully and preserve a facade of normalcy also has its costs: "We've all been so polite about it for so long to the point we are nauseated with ourselves."
Jokes are another form that the social control over women takes. Women who consider noncompliance dread the degradation of male humor. At Carmita Wood's hearing, when she was describing disabling pains in her neck and arm which vanished upon leaving the job, the referee said, "So you're saying, in effect, that [the professor] was a pain in the neck?" On being told the perpetrator's age, the referee remarked, "Young enough to be interested anyway."87 As the
brief for Ms. Wood put it, "Nowhere is the existence of a persistent sexual harassment … questioned, it is merely treated lightly."88 Trivialization of sexual harassment has been a major means through which its invisibility has been enforced. Humor, which may reflect unconscious hostility, has been a major form of that trivialization. As Eleanor Zuckerman has noted, "Although it has become less acceptable openly to express prejudices against women, nevertheless, these feelings remain under the surface, often taking the form of humor, which makes the issues seem trivial and unimportant."89
Faced with the spectre of unemployment, discrimination in the job market, and a good possibility of repeated incidents elsewhere, women usually try to endure. But the costs of endurance can be very high, including physical as well as psychological damage:
The anxiety and strain, the tension and nervous exhaustion that accompany this kind of harassment take a terrific toll on women workers. Nervous tics of all kinds, aches and pains (which can be minor and irritating or can be devastatingly painful) often accompany the onset of sexual harassment. These pains and illnesses are the result of insoluble conflict, the inevitable backlash of the human body in response to intolerable stress which thousands of women must endure in order to survive.90
Without further investigation, the extent of the disruption of women's work lives and the pervasive impact upon their employment opportunities can only be imagined. One woman, after describing her own experiences with sexual harassment, concluded:
Many women face daily humiliation simply because they have female bodies. The one other female union member at my plant can avoid contact with everyone but a few men in her department because she stays at her work bench all day and eats in a small rest room at one end of her department.91
For many women, work, a necessity for survival, requires self-quarantine to avoid constant assault on sexual integrity. Many women try to transfer away from the individual man, even at financial sacrifice. But once a woman has been sexually harassed, her options are very limited:
If she objects, the chances are she will be harassed or get fired outright. If she submits, the chances are he'll get tired of her anyway. If she ignores it, she gets drawn into a cat-and-mouse game from which there is no exit except leaving the job.92
Women do find ways of fighting back short of, and beyond, leaving their jobs.93 As has been noted, nonrejection coupled with non-compliance is a subtle but expensive form. One shuffles when one sees no alternative. Women have also begun to oppose sexual harassment in more direct, visible, and powerful ways. The striking fact that black women have brought a disproportionate number of the sexual harassment lawsuits to date points to some conditions that make resistance seem not only necessary but possible. Protest to the point of court action before a legal claim is known to be available requires a quality of inner resolve that is reckless and serene, a sense of "this I won't take" that is both desperate and principled. It also reflects an absolute lack of any other choice at a point at which others with equally few choices do nothing.
Black women's least advantaged position in the economy is consistent with their advanced position on the point of resistance. Of all women, they are most vulnerable to sexual harassment, both because of the image of black women as the most sexually accessible and because they are the most economically at risk. These conditions promote black women's resistance to sexual harassment and their identification of it for what it is. On the one hand, because they have the least to fall back on economically, black women have the most to lose by protest, which targets them as dissidents, hence undesirable workers. At the same time, since they are so totally insecure in the marketplace, they have the least stake in the system of sexual harassment as it is because they stand to lose everything by it. Since they cannot afford any economic risks, once they are subjected to even a threat of loss of means, they cannot afford not to risk everything to prevent it. In fact, they often must risk everything even to have a chance of getting by. Thus, since black women stand to lose the most from sexual harassment, by comparison they may see themselves as having the least to lose by a struggle against it. Compared with having one's children starving on welfare, for example, any battle for a wage of one's own with a chance of winning greater than zero looks attractive. In this respect, some black women have been able to grasp the essence of the situation, and with it the necessity of opposition, earlier and more firmly than other more advantaged women.
Other factors may contribute to black women's leadership on this issue. To the extent they are sensitive to the operation of racism on an
individual level, they may be less mystified that the sexual attention they receive is "personal." Their heritage of systematic sexual harassment under slavery may make them less tolerant of this monetized form of the same thing. The stigmatization of all black women as prostitutes may sensitize them to the real commonality between sexual harassment and prostitution. Feeling closer to the brand of the harlot, black women may more decisively identify and reject the spectre of its reality, however packaged.
The instances of sexual harassment described present straightforward coercion: unwanted sex under the gun of a job or educational benefit. Courts can understand abuses in this form. It is important to remember that affirmatively desired instances of sexual relationships also exist which begin in the context of an employment or educational relationship. Although it is not always simple, courts regularly distinguish bona fide relationships from later attempts to read coercion back into them. Between the two, between the clear coercion and the clear mutuality, exists a murky area where power and caring converge. Here arise some of the most profound issues of sexual harassment, and those which courts are the least suited to resolve.
In education, the preceptive and initiating function of the teacher and the respect and openness of the student merge with the masculine role of sexual mastery and the feminine role of eager purity, especially where the life of the mind means everything. The same parallel between the relationship that one is supposed to be having and the conditions of sexual dominance and submission can be seen in the roles of secretary and boss. Rosabeth Kanter notes that the secretary comes to "feel for" the boss, "to care deeply about what happens to him and to do his feeling for him," giving the relationship a tone of emotional intensity.94 Elsewhere, she sees that a large part of the secretary's job is to empathize with the boss's personal needs; she also observes that, since the secretary is part of the boss's private retinue, what happens to him determines what happens to her. Kanter does not consider that there may be a connection between the secretary's objective conditions and her feelings--sexual feelings included--about her boss.
Although the woman may, in fact, be and feel coerced in the sexual involvement in some instances of sexual harassment, she may not be entirely without regard for, or free from caring about, the perpetrator. Further investigation of what might be called "coerced caring,"
or, in the most complex cases, an "if this is sex, I must be in love" syndrome, is vital. It is becoming increasingly recognized that feelings of caring are not the only or even a direct cause of sexual desires in either sex.95 In light of this, it cannot be assumed that if the woman cares about the man, the sex is not coerced. The difficulties of conceptualization and proof, however, are enormous. But since employed women are supposed to develop, and must demonstrate, regard for the man as a part of the job, and since women are taught to identify with men's feelings, men's evaluations of them, and with their sexual attractiveness to men, as a major component of their own identities and sense of worth,96 it is often unclear and shifting whether the coercion or the caring is the weightier factor, or which "causes" which.
This is not the point at which the legal cause of action for sexual harassment unravels, but the point at which the less good legal case can be scrutinized for its social truths. The more general relationship in women between objective lack of choices and real feelings of love for men can be explored in this context. Plainly, the wooden dichotomy between "real love," which is supposed to be a matter of free choice, and coercion, which implies some form of the gun at the head, is revealed as inadequate to explain the social construction of women's sexuality and the conditions of its expression, including the economic ones. The initial attempts to establish sexual harassment as a cause of action should focus upon the clear cases, which exist in profusion. But the implications the less clear cases have for the tension between women's economic precariousness and dependency-- which exists in the family as well as on the job--and the possibilities for freely chosen intimacy between unequals remain.
There is a unity in these apparently, and on the legal level actually, different cases. Taken as one, the sexual harassment of working women presents a closed system of social predation in which powerlessness builds powerlessness. Feelings are a material reality of it. Working women are defined, and survive by defining themselves, as sexually accessible and economically exploitable. Because they are economically vulnerable, they are sexually exposed; because they must be sexually accessible, they are always economically at risk. In this perspective, sexual harassment is less "epidemic" than endemic.
Sexual harassment, I have argued, is sex discrimination within two approaches: one seeing its role in women's inequality, the other seeing it as arbitrary differentiation. Having sharply contrasted the two conceptual approaches, I should explain how the two arguments can be true at the same time. One approach proceeds from an examination of the social substance of sexual inequality. In this analysis, the sexuality of women and men cannot be treated as the same. This comes perilously close to an admission, fatal for the other approach, that with regard to sexuality women and men cannot be "similarly situated" so cannot be compared, so no discrimination because of sex can result.
To the extent that women and men are not similarly situated sexually, the reason is pervasive social inequality. It is not biological difference or personal choice. Moreover, it is questionable that people should be required to be similarly situated before they can be found to be unequally treated, since due to systematic inequality, people often are not in similar situations. Further, that women's and men's sexuality are not substantively the same does not mean that their treatment is not comparable. It has never been thought that simply because people are black, their situation is so noncomparable with that of whites that it is impossible to tell whether blacks are compatively disadvantaged. Yet it is widely recognized that the content of the social meaning of being black is very different from that of being white, such that black and white skin color cannot be treated as if they are the same. As with skin privilege, so also sex privilege. Both genders possess sexuality. Women and men can, then, be compared with regard to the underlying variable: sexuality in the context of employment. Both sexes can be sexually harassed. When women's sexuality is treated differently from men's sexuality, similarly situated women
and men will have been differentially treated, to women's comparative disadvantage, and that is sex discrimination.
The argument that sexual harassment is arbitrarily based on sex is that men are not placed in comparable positions to women when they are comparably circumstanced. The inequality argument is that under current social conditions, no man would be in the same position as a woman, even if he were in identical circumstances. The question which divides the approaches is: if both sexes were equally sexually harassed, would the treatment of the two be different, so equal, or would it be different, so unequal? Is it reasonable to compare the sexual harassment of women with the sexual harassment of men? Logically, biologically, and presuming equality between the sexes, it is, which is all the comparability required. In this society, it is not, because of that social inequality which discrimination law exists to eliminate.
The analysis of sexual harassment presented here has social implications for an understanding of women's work as integral to her social status. Sexual harassment at work critically undercuts women's potential for work equality as a means to social equality. Beyond survival, employment outside the home may offer women some promise of developing a range of capacities for which the nurturing, cleaning, and servant role of housework and child care provide little outlet. A job, no matter how menial, offers the potential for independence from the nuclear family, which makes women dependent upon men for life necessities. The marketplace promises limits with its impersonality. A woman may even be hired to be a man's individual servant, but he is supposed to own only her services, not herself. Even if the substance of the work is identical to that performed in the home, she is paid in a medium she can control in exchange.
Sexual harassment breaks the marketplace nexus. When a woman is seen as a provocative anomaly in the workplace, her sexuality is a condition of her subsistence, its delivery part of the definition of her productive activity. The woman's financial dependence on a man-- this time her employer in place of her husband--is again sealed on a sexual basis. Gender and sexuality become inseparable as the dynamics of the home and marketplace converge. Sexual harassment on the job undercuts a woman's autonomy outside the home by sexualizing her role in exactly the same way as within the family:
sexual imposition combined with a definition of her work in terms of tasks which serve the man, sanctioned by her practical inability to create the material conditions of life on her own.
This relationship between women's sexuality and her material survival is stunningly evoked in the statement by Roberta Victor, a prostitute:
[My first trick] wasn't traumatic because my training had been how to be a hustler anyway. I learned it from the society around me, just as a woman. We're taught how to hustle, how to attract, hold a man, and give sexual favors in return…. It's a market place transaction…. the most important thing in life is the way men feel about you…. It's not too far removed from what most American women do--which is to put on a big smile and act…. What I did was no different from what ninety-nine per cent of American women are taught to do. I took the money from under the lamp instead of in Arpege. What would I do with 150 bottles of Arpege a week?1
Sexual harassment at work expresses the truth of these connections. If anatomy is not destiny as a biological matter, it can certainly appear all-inclusive as a social matter. Women learn early to be afraid that men will not be attracted to them, for they will then have no future; they also learn early to be afraid that men will be attracted to them, for they may then also have no future.
Americans are accustomed to thinking of themselves as freely choosing rather than as determined by social imperatives. Personality or character is defined largely in terms of this opposition. Becoming a person is thought to involve overcoming social determinants, forces which are impediments to individual choice, hence individual self. Women have little choice but to become "women" in the sense of having to become those persons who will then freely choose women's roles. Equally important, and pulling toward change, they struggle against this condition. Once having determined to equalize economic opportunities by sex, the law's role is not to try to overthrow these constructs but to support women who wish to resist the sexualization of their economic insecurity.
Sexual harassment has been analyzed throughout, with shifting emphasis, as the reciprocal enforcement of two inequalities: the sexual and the economic. The way the sexual subordination of women interacts with other forms of social power men have can now be more precisely delineated. Economic power is to sexual harassment as physical
force is to rape. Recent examinations of rape, focusing upon attempts to understand what is wrong with it, provide an instructive parallel to the role of economic coercion in sexual harassment.
Rape has recently been conceptualized as a crime of violence, not sex. Sexual harrassment, so conceptualized, would be an abuse of hierarchical economic (or institutional) authority, not sexuality. According to this analysis, rape is an act of violence, an assault like any other, not an expression of socially organized sexuality. The first to state this interpretation, Susan Griffin defined rape as "an act of aggression in which the victim is denied her self-determination. It is an act of violence."2 Susan Brownmiller applied and developed this analysis. Against Our Will examines rape under conditions of coercion, with coercion defined in other than sexual terms. Rape is systematically examined in the context of riots, wars, pogroms, and revolutions; rape by police, of children by parents, rape in prison, and rape as an expression of racism are analyzed.3 Lorenne Clark and Debra Lewis, similarly, see the injury of rape to lie in the denial of the victim's physical autonomy. In their interpretation of the rape victim's perspective, "the fact that this assault was directed against her sexual organs is--at least at the time--irrelevant."4 Carolyn Shafer and Marilyn Frye argue that what is wrong with rape is that it is "the ultimate disrespect … the exercise of the power of consent over another person."5 Susan Peterson submits that "rape is first and foremost a crime of violence against the body, and only secondarily (though importantly) a sex crime."6
Driving a wedge between sexuality and power is the point of these interpretations. Rape is an abuse of physical force, not an expression of male sexuality. The power that makes rape effective, as well as injurious, derives from some other source--guns, strength, race, age, the state. Power is considered inappropriately displaced onto the sexual rather than being, in any sense, a part of sexuality. Rape is an expression of physical force that just happens to be acted out in sex, not an expression of male sexuality acted out a little more forcefully than usual. Power is ultimately reducible to physical force,7 however mediated through social institutions, and sex is something, anything, else. Dominance can take sexual forms, but it does not have sexual sources. Particularly for Brownmiller, although rape is seen as wide-spread, it is rarified. It is not analyzed in normal circumstances, in everyday life, in ordinary relationships. The radical distinction between
rape and intercourse--rape is violence, intercourse is sexuality-- is both the most basic and the least examined premise of the approach.8
The motive for this bifurcation is not difficult to understand. A major obstacle to prohibiting rape effectively is that it has been seen as a natural expression of male sexual desires for women's bodies. Accused rapists are often found not guilty, or women's complaints considered unfounded, because the incident is seen in this light, as not extraordinary enough. A great many incidents women consider rape are, in effect, considered "normal" by the legal system.9 As one accused rapist put it, he hadn't used "any more force than is usual for males during the preliminaries."10 Taking rape from the realm of "the sexual," placing it in the realm of "the violent," allows one to be against it without raising any questions about the extent to which the institution of heterosexuality has defined force as a normal part of "the preliminaries."
This literature shares a starting point with the system it criticizes: both attempt (equally implicitly) to distinguish sexual abuses from sexuality which must be healthy, eternal, and natural, from that which must be normal and allowed in order to justify punishing some acts as abuses of it. But is ordinary sexuality, under conditions of gender inequality, to be presumed healthy? What if inequality is built into the social conceptions of male and female sexuality, of masculinity and femininity, of sexiness and heterosexual attractiveness? Incidents of sexual harassment suggest that male sexual desire itself may be aroused by female vulnerability. Much of what seems to make subordinate women so sexually irresistible is that they are so defenseless. Men feel they can take advantage, so they want to, so they do. Examination of sexual harassment, precisely because the episodes appear commonplace, forces one to confront the fact that sexual intercourse normally occurs between economic (as well as physical) unequals. In this context, the apparent legal requirement that violations of women's sexuality appear out of the ordinary before they will be punished helps prevent women from defining the ordinary conditions of their own consent.
If power is shaped outside the sexual sphere, rape, conceptualized as an abuse of such power, need have nothing specifically to do with the condition of women, with gender, or with sexism. So understood, neither does sexual harassment, although both can be considered wrong because of the inappropriate (arbitrary) conflation of power
from one sphere with advantage in another. But if socially defined sexuality, its pattern of initiative and acquiescence, is understood to express sex inequality, the cases that consider rape "normal," are, in a backward way, correct. The problem is that the appearance of rape as similar to normal heterosexual encounters is not seen as an indictment of normal heterosexual encounters, but as a reason the behavior should be allowed. But if rape is very like normal intercourse, it is, further, no mystery that convictions are so difficult. If most men do similar things all the time, on what grounds should this individual man be sent to jail? Similarly with sexual harassment: if unwanted sex imposed by a man upon a woman who is in no position to refuse only expresses the usual situation in unusually vivid terms, on what grounds should it be illegal?
At this point, the law of discrimination has a distinctive contribution to make. Sex discrimination law can keep sexual violation of women in full view of the social setting within which it occurs. This social context has defined as normal a structural situation in which women can be and are systematically subordinated to men sexually and in other ways. Sexual harassment at work connects the jobs most women do--in which a major part of their work is to be there for men--with the structure of sexual relations--in which their role is also to be there for men--with the denigrated economic status women as a gender occupy throughout the society. Women's place at work and in sexual relations can be seen as socially constructed, not naturally given; public and structural, not private and individual; separate and subordinate and not equal. Discrimination law exists to remedy such disparities. If sexual harassment expresses the pervasive reality of normal relations between the sexes, and if these relations express unequal social power, then the feelings and practices that emerge are not reasons that the practices should be allowed. They support and evidence the discrimination. Violations that would not be seen as criminal because they are anything but unusual may, in this context, be seen as discriminatory for precisely the same reason.
Analysis of sexuality must not be severed and abstracted from analysis of gender. What the current interpretations of rape fail to grasp (indeed, seem to avoid most strenuously as they approach) is the argument most conducive to conceiving sexual harassment as sex discrimination: a crime of sex is a crime of power. Sexual harassment (and rape) have everything to do with sexuality.11 Gender is a power
division and sexuality is one sphere of its expression. One thing wrong with sexual harassment (and with rape) is that it eroticizes women's subordination.12 It acts out and deepens the powerlessness of women as a gender, as women.13 If sexuality is set apart from gender, it will be a law unto itself.
Setting sexuality within an analysis of gender is a task sex discrimination law is peculiarly well suited to perform. The two approaches to sex discrimination, taken together, can encompass the social meaning of women's sexuality without institutionalizing it as an emblem of women's inferiority. Together, they guarantee an equality that begins to comprehend womanhood as distinct and fully human. The distinctive contribution of differences doctrine to this synthesis is that, because the sexes can be reversed in theory, sexual victimization is not exclusively identified (even in its prohibition) with women as a biological group. Inequality theory, by making a substantive critique, insures that sex discrimination doctrine is not debased by becoming enmeshed in the abstractions of neutral principles. Differences doctrine alone could allow female sexuality to be considered unique to women, male sexuality unique to men. This would be to accept as inevitable, or as the correct legal point of reference, the current social meaning of gender. Men have long been dominant to women, while being just as different from women as women are from men. Differences doctrine presumes a symmetry of power between the sexes, when women have been subordinate as well as distinct. Women want to be equal and different, too.
1. Sexism is by no means unique to American culture. This discussion, for purposes of application to American law, focuses upon its forms in this culture.
2. Houseworkers (paid and unpaid) are excluded from this discussion of working women not because I think they do not work, nor because they do not suffer from sexual harassment. Most are not covered by Title VII's limitation to workplaces with fifteen or more employees. For one review of quantitative studies which discuss the contribution of unpaid housework to the Gross National Product, see Juanita Kreps, Sex in the Marketplace: American Women at Work (Baltimore: Johns Hopkins University Press, 1971), chap. 2.
3. "Sexual Harassment on the Job: Questions and Answers" (Ithaca, N.Y.: Working Women United Institute, 1975 [mimeograph]).
4. Lin Farley, testimony given before the Commission on Human Rights of the City of New York, Hearings on Women in Blue-Collar, Service and Clerical Occupations, "Special Disadvantages of Women in Male-Dominated Work Settings," April 21, 1975 (mimeograph). The data are based upon the study reported at chap. 3, infra, note 5.
5. Barnes v. Costle, 13 F.E.P. Cases 123 (D.D.C. 1974), rev'd, 561 F.2d 983 (D.C. Cir, 1977); Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976), sub nom. Williams v. Bell, Nos. 76-1833, 76-1994 (D.C. Cir. September 19, 1978) (slip opinion); Corne v. Bausch & Lomb, 390 F. Supp. 161 (D. Ariz. 1975), vacated and remanded, 562 F.2d 55 (9th Cir. 1977); Miller v. Bank of America, 418 F. Supp. 233 (N.D. Cal. 1976), appeal docketed, No. 76-3344 (9th Cir. 1976); Tomkins v. Public Service Electric & Gas Co., 422 F. Supp. 553 (D.N.J. 1976), rev'd, 568 F.2d 1044 (3rd Cir. 1977); Garber v. Saxon Business Products, Inc., 552 F.2d 1032 (4th Cir. 1977); Munford V. James T. Barnes & Co., 441 F. Supp. 459 (E.D. Mich. 1977); Elliott v. Emery Air Freight, No. C-C-75-76 (W.D.N.C. June 21, 1977); Heelan v. Johns-Manville Corp., 451 F. Supp. 1382 (D. Colo. 1978). A case of sexual harassment brought as a contract action is Monge v. Beebe Rubber. 316 A.2d 549 (N.H. 1974). Three unreported actions for unemployment
compensation are based upon allegations of sexual harassment. In re Nancy J. Fillhouer, App. No. 75-5225, California Unemployment Insurance Appeals Board (July 25, 1975); In re Carmita Wood, App. No. 207, 958, New York State Department of Labor, Unemployment Insurance Appeals Board (October 6, 1975); Cathy Hamilton v. Appleton Electric Co., E.R.D. Case 7301025, State of Wisconsin Department of Industry, Labor and Human Relations (October 1, 1976). In education, see Alexander v. Yale, 459 F. Supp. 1 (D. Conn. 1977), supplemented, June 30, 1978.
6. Ann Hill, "Protective Labor Legislation for Women: Its Origin and Effect" (unpublished paper, Yale Law School, 1970); Ann Hill, "Protection of Women Workers and the Courts: A Legal Case History" (unpublished paper prepared for the Conference on Protective Legislation and Women's Employment, Smith College, Northampton, Massachusetts, November 3-5, 1977); Ronnie Steinberg Ratner, "The Paradox of Protection: Changes in Hours Legislation in the United States" (unpublished paper, prepared for the same conference.)
7. The Supreme Court has held that disability insurance plans that do not cover pregnancy or pregnancy-related disabilities in employment are not illegal sex discrimination. Geduldig v. Aiello, 417 U.S. 484 (1974) (state plans, under the Fourteenth Amendment); Gilbert v. General Electric, 429 U.S. 125 (1976) (private plans, under Title VII). In October 1978, the House of Representatives agreed to the conference report on S. 995, a bill to amend Title VII to prohibit discrimination on the basis of pregnancy as sex discrimination. Congressional Record Daily Digest, vol. 124, no. 168, part V, October 14, 1978, D 1574 (Congressional Record at H13494-H13496). Congress (with the approval of the President) can thus modify the result of Gilbert, but it cannot so directly alter the reasoning on the meaning of sex discrimination which produced it. (The Congressional action also leaves the Geduldig result standing).
8. Georg Simmel, Philosophische Kultur (Leipzig: Werner Klinkhardt, 1911), quoted in Lewis A. Coser, "Georg Simmel's Neglected Contributions to the Sociology of Women," Signs: Journal of Women in Culture and Society, vol. 2, no. 4 (Summer 1977), at 872, 873.
9. Professor Fiss, in a recent article, develops a similar distinction in his examination of equal protection cases on race. Owen Fiss, "Groups and the Equal Protection Clause," 5 Philosophy and Public Affairs 108 (1976). His article provided labels for the two theories and advanced and clarified them. The two theories, as I develop them, differ from his in several respects. Most obvious is that he does not directly consider whether women could be a "disadvantaged" group. The essential purpose of his theory is to justify affirmative action for blacks in higher education. The outside requirements for a group to be "disadvantaged" are not clear, especially where the criteria of biology and mutability are involved. At one point, apparently stating reasons that qualify the case for some groups to be considered disadvantaged groups,
he states that "some...socially disadvantaged groups can be defined in terms of characteristics that do not have biological roots and that are not immutable; the Clause might protect certain language groups and aliens." This clouds whether it is biology and immutability that qualify blacks as disadvantaged (and would also qualify women), or whether, as he more generally seems to think, blacks are disadvantaged because of their social characteristics. He continues, "the court may even develop variable standards of protection...it may tolerate disadvantaging practices that would not be tolerated if the group was a 'pure' specially disadvantaged group. Jews or women may be entitled to some protection" (155) (citations omitted). Treatment of the poor, a group that is, after all, totally socially created, is grudging to the point of exclusion. However strategic this may have been--in order to promote affirmative action for blacks, it is necessary to convince courts that they are not opening the door to redress of all inequalities--it does not bode well for women. His interpretation of equal protection disadvantagement would allow a legislative judgement that "the plight of the poor may be bad but, so the legislator or administrator should be allowed to say, not as bad as that of the blacks" (162). Given that the majority of blacks are poor, this recognizes as disadvantagement only that poverty which is attributable to racial, as distinct from economic, causes, a difficult distinction to make. Since poverty is not seen to be completely all-pervasive, cultural, disabling, maintained by false consciousness, and as difficult to change as the meaning of being black, it seems unlikely that women would fare well under this interpretation.
10. 429 U.S. 125 (1976).
11. City of Los Angeles, Department of Water and Power, et al. v. Manhart, et al., 98 S.Ct. 1370 (1978).
12. Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, Section 703 (a)(1) and (2), codified at 42 U.S.C. Section 2000 e (2) (a) (1) and (2). (Hereinafter, "Title VII" refers to this quoted section, unless specifically noted otherwise.) Section (b) applies the quoted section to employment agencies, (c) to labor organizations, and (d) to training programs. Section (e) provides for an exception under which sex may be shown a bona fide occupational qualification; Section (h) excepts bona fide seniority and merit systems; Section (j) prohibits "preferential treatment" based upon existing numerical or percentage imbalance.
13. United States Constitution, Amendment XIV.
1. Women's labor force participation has been increasing dramatically and continuously since 1940 both in rate and in numbers. In 1975, 35 million women participated in the labor force, representing 39.3 percent of all workers,
45 percent of all women. In March 1940, 25.4 percent of workers were women, 28.9 percent of all women; in 1960, 33.3 percent and 37.4 percent, respectively. Women's Bureau, 1975 Handbook on Women Workers (hereinafter, 1975 Handbook), Bulletin 297, U.S. Department of Labor, Employment Standards Division (1975), table 2, at 11. See also Valerie Kincade Oppenheimer, "The Female Labor Force in the United States: Demographic and Economic Factors Governing its Growth and Changing Composition" (Berkeley, California: Institute of International Studies, University of California, 1970), and Lise Vogel, "Women Workers: Some Basic Statistics" (Boston: New England Free Press, 1971).
2. Lapidus uses these analytic dimensions. Gail Warshofsky Lapidus, "Occupational Segregation and Public Policy: A Comparative Analysis of American and Soviet Patterns," Signs: Journal of Women in Culture and Society, vol. 1, no. 3, part 2 (Spring 1976), at 120.
3. In a good review of recent studies of women's labor force participation, Elizabeth M. Almquist concludes: "The major recommendations, then, are that research should become less generalized and more specific, less concerned with outcomes and more concerned with the process of status attainment, less attentive to the decisions women make and more attentive to the decisions employers make, less abstract in orientation and more focused on the day-to-day transactions between workers and boss." "Women in the Labor Force," Signs: Journal of Women in Culture and Society, vol. 2, no. 4 (Summer 1977), at 854. Research on sexual harassment meets all these requirements.
4. U.S. Census, 1960 Occupational Characteristics, quoted and discussed at table 5.1 by Harriet Zellner, "Determinants of Occupational Segregation," in Cynthia Lloyd, ed., Sex, Discrimination and the Division of Labor (New York: Columbia University Press, 1975), at 126.
5. Barbara B. Bergmann and Irma Adelman, "The 1973 Report of the President's Council of Economic Advisors: The Economic Role of Women," American Economic Review, vo. 68 (September 1973), at 510: See also Statistical Abstract of the United States, 1971, "Employed Persons, by Major Occupation and Sex: 1950-1971," at 222.
6. These calculations are based upon data in 1975 Handbook, at 84 and 86. For a sensitive analysis of these dimensions of working women's lives, see Nancy Seifer, "Absent from the Majority: Working Class Women in America" (New York: Institute of Human Relations, National Project on Ethnic America of the American Jewish Committee, 1973). See also Nancy Seifer, Nobody Speaks for Me! Self-Portraits of American Working Class Women (New York: Simon and Schuster, 1976), for oral histories on the subjects discussed statistically in this chapter.
7. 1975 Handbook, at 86-87.
8. 1975 Handbook, table 36 (Manpower Report of the President, April 1974), at 84. As shown in this table, 15.6 percent of workign women are in a
"professional, technical" category. Depending upon its precise parameters, given the miniscule representation of women in the professions and the lack of congruence in status between professionals and particularly lower level technicals, this category seems inapt. The vast majority of these women are probably lower level technical workers, with more in common with clericals, service workers, and factory workers than with women professionals.
9. 1975 Handbook, at 89-91, table 38, "Employed Persons in Selected Occupations by Sex, 1973 Annual Averages."
10. Janice N. Hedges, "Women Workers and Manpower Demands in the 1970's," Monthly Labor Review 93 (June 1970), at 19.
11. 1975 Handbook, at 91-92.
12. Seifer (1973), supra, note 6, at 29.
13. Georgina Smith, "Help Wanted--Female: A Study of Demand and Supply in a Local Job Market" (1964), quoted in Babcock, Freedman, Norton, and Ross, Sex Discrimination and the Law: Cases and Remedies (Boston: Little, Brown, 1975), at 209. See Babcock et al. for supportive materials on "sex stereotypes that make sex discrimination acceptable," at 208 ff.
14. Harry Braverman, Labor and Monopoly Capital: The Degradation of Work in the Twentieth Century (New York and London: Monthly Review Press, 1974), especially at 293-358; Margery Davies, "Woman's Place is at the Typewriter: The Feminization of the Clerical Labor Force," Radical America, vol. 8, no. 4 (July-August 1974).
15. Seifer (1973), supra, note 6 at 31-32; see also 1975 Handbook, at 64 ff.
16. See C. Wright Mills, White Collar (New York: Oxford University Press, 1956), at 192-193.
17. Andrea Dworkin, "Phallic Imperialism: Why Economic Recovery Will Not Work For Us," Ms., vol. V, no. 6 (December 1976), at 104. For data, see Ester Boserup, Woman's Role in Economic Development (New York: St. Martin's Press, 1970).
18. Data from 1975 Handbook, at 97. Rosabeth M. Kanter, Men and Women of the Corporation (New York: Basic Books, 1977), at 17, draws a similar conclusion.
19. 1975 Handbook, at 94-96.
20. 1975 Handbook, at 115. For further empirical documentation of the existence, depth, and dimensions of sex segregation, see Bergmann and Adelman, supra, note 5, at 509-514; Francine D. Blau, "Pay Differentials and Differences in the Distribution of Employment of Male and Female Office Workers," (Ph.D. diss., Harvard University, 1975); Francine Blau Weiskoff, "'Women's Place' in the Labor Market," American Economic Review 62 (May 1972), at 161-166; John E. Buckley, "Pay Differences Between Men and Women in the Same Job," Monthly Labor Review 94 (November 1971), at 36-39; Edward Gross, "Plus ça change...? The Sexual Structure of Occupations Over Time," Social Problems 16 (Fall 1968), at 198-208; Oppenheimer,
supra, note 1; Elizabeth Waldman and Beverly J. McEaddy, "Where Women Work--An Analysis by Industry and Occupation," Monthly Labor Review 97 (May 1974), at 3-14; and Francine Blau and Carol L. Jusenius, "Economists' Approaches to Sex Segregation in the Labor Market: An Appraisal," Signs: Journal of Women in Culture and Society, vol. 1, no. 3, part 2 (Spring 1976), at 181-199. See generally the entire volume of Signs: Journal of Women in Culture and Society, devoted to "The Implications of Occupational Segregation," based on a conference on occupational segregation held at Northampton, Massachusetts, May 21-23, 1973, vol. 1, no. 3, part 2 (Spring 1976 Supplement).
21. Women's Bureau, U.S. Department of Labor, Employment Standards Administration, "Women with Low Incomes" (November 1977) (hereinafter, Women's Bureau, 1977), at 1.
22. U.S. Department of Commerce, Bureau of the Census, Current Population Reports, P-60, No. 101 (1974), issued January 1976.
23. U.S. Department of Commerce, Bureau of the Census, "Money Income of Families and Persons in the U.S.," Current Population Reports, 1957-1975. U.S. Department of Labor, Bureau of Labor Statistics, Handbook of Labor Statistics, 1975. One man's experience attempting to apply for such a "woman's job" illustrates the reality behind these data: "Galvan Pool and Sauna needs a 'Gal Friday,' and you can type, file, and transcribe from a dictaphone. The woman on the phone apologizes, 'We're only offering $95 a week, so we only want a woman.'" Rik Myslewski, "But can he type?" Sister: Connecticut's Feminist Publication, vol. V, no. 10 (New Haven, November 1976), at 10.
24. Women's Bureau, U.S. Department of Labor, Employment Standards Administration, "The Earnings Gap Between Women and Men" (1976), at 2-3.
25. Women's Bureau, 1977, at 5.
26. Six recent econometric studies reviewed by Bergmann and Adelman, supra, note 5. Larry Suter and Herman Miller, in "Income Differences Between Men and Career Women," demonstrate that women receive smaller increments of income for equal increases in educational level and occupational status. In Joan Huber, ed., Changing Women in a Changing Society (Chicago: University of Chicago Press, 1973), at 21-22. The Carnegie Commission on Higher Education reveals a similar pattern, concluding that women faculty members earn an average of $1,500-$2,000 per year less than men in comparable positions with comparable qualifications. Opportunities for Women in Higher Education (New York: Carnegie Commission, 1973). See also Myra Strober, "Lower Pay for Women: A Case of Economic Discrimination," Industrial Relations Il (May 1972), at 279-84.
27. 1975 Handbook, at 2. Congress noted the "profound economic discrimination
against women workers" at H. Rep. No. 238, 92d Cong., 1st Sess., reprinted in  U.S. Code Cong. & Ad. News 2137, et seq.
28. "The median earnings of white men employed year-round full-time is $7,369, of Negro men $4,777, of white women $4,279, of Negro women $3,194. Women with some college education both white and Negro earn less than Negro men with 8 years of education. Women head 1,732,000 impoverished families, Negro males head 820,000. One-quarter of all families headed by white women are in poverty. More than half of all headed by Negro women are in poverty. Less than a quarter of those headed by Negro males are in poverty. Seven percent of those headed by white males are in poverty." This was in 1970. "A Matter of Simple Justice, The Report of the President's Task Force on Women's Rights and Responsibilities," U.S. Government Printing Office (April 1970), at 18. See also Robert Stein, "The Economic Status of Families Headed by Women," Monthly Labor Review 93 (December 1970), at 7. The figures had changed little by 1972. See Women's Bureau, U.S. Department of Labor, Employment Standards Administration, "Facts About Women Heads of Households and Heads of Families" (April 1973), at 8, and 1975 Handbook, at 141-142. Data for 1976 can be found in Women's Bureau, "Women with Low Incomes" (November 1977).
29. Women's Bureau, 1977, at 1.
30. Id., at 5.
31. 1975 Handbook, at 124.
32. 1975 Handbook, at 19-21.
33. Women's Bureau, 1977, at 6.
34. Id., at 8.
35. 1975 Handbook, at 21.
36. Women's Bureau, 1977, at 6.
37. All data from Edna E. Raphael, "Working Women and their Membership in Unions," Monthly Labor Review (May 1974); see especially table 3, "Union Membership of Private Wage and Salary Workers, by occupation of longest job, industry and sex, 1970." (The author attributes her data to the Bureau of Labor Statistics.)
38. See Janice Madden, The Economics of Sex Discrimination (Lexington, Mass.: Health, 1973), chap. 2.
39. Barbara Bergmann, "Economics of Women's Liberation," Challenge, vol. 16 (May/June 1973), at 14.
40. Mary Stevenson, "Women's Wages and Job Segregation," Politics and Society, vol. 4, no. 1 (Fall 1973), at 93.
41. Barbara Deckard and Howard Sherman, "Monopoly Power and Sex Discrimination," Politics and Society, vol. 4, no. 4 (1974), at 477.
42. A review of the growing empirical literature in this field is provided by
Andrew I. Kohen, Women and the Economy: A Bibliography and a Review of the Literature in Sex Differentiation in the Labor Market (Columbus, Ohio: Center for Human Resource Research, Ohio State University, 1975).
43. For a specific review of theoretical approaches to sex segregation, see Francine D. Blau and Carol L. Jusenius, supra, note 20, at 181-199.
44. Paul Brest, Processes of Constitutional Decisionmaking: Cases and Materials (Boston: Little, Brown, 1975), at 489.
45. Owen Fiss, "Groups and the Equal Protection Clause," 5 Philosophy and Public Affairs 108, 117 (1976). Neither Professor Fiss nor Brest considers whether it would violate equal protection of whites, if the black students wanted, for reasons of racial solidarity, to hold their own graduation, or to sit together at a regular graduation, or even to sit on the opposite side of the stage from whites.
46. The data on sex segregation in the labor force presented earlier documents this; the following commentators analyze it. Margery Davies, supra, note 14, at 22-23; Braverman, supra, note 14, at 326-348; Jean Tepperman, "60 Words a Minute and What DO You Get? Clerical Workers Today" (Somerville, Mass.: New England Free Press, n.d. [approx. 1976]); Jean Tepperman, Not Servants, Not Machines: Office Workers Speak Out (Boston: Beacon Press, 1976).
47. 83 percent of all "waiters, waitresses, and helpers" are female. All data for 1973 from 1975 Handbook, at 89-91.
48. Talcott Parsons and Robert F. Bales, Family, Socialization and Interactive Processes (Glencoe, Ill.: Free Press, 1956), at 313.
49. Paddy Quick, "Women's Work," The Review of Radical Political Economics (issue on the political economy of women), vol. 14, no. 3 (July 1972), at 17.
50. Thorstein Veblen, The Theory of the Leisure Class (New York: Viking Press, 1964), at 51.
51. Lynn O'Conner Gardner, "Strategic View of the Labor Force: Who Can Take Power," The Second Page (San Francisco, April 1972), at 27.
52. Bernard M. Bass, Judith Krusell, and Ralph A. Alexander, "Male Managers' Attitudes Toward Working Women," American Behavioral Scientist, vol. 15, no. 2 (November-December 1971), at 221-236, 228, 232.
53. Kanter, supra, note 18, at 73.
54. Id., at 86 and at 78, respectively.
55. Kanter, supra, note 18, at 234, 235.
56. Sylvia Federici, "Wages Against Housework" (Bristol, England: Falling Wall Press, 1976), at 28.
57. Paddy Quick, supra, note 49, at 17.
58. Lynn O'Conner Gardner supra, note 51, at 27.
59. Sheila Rowbotham, Woman's Consciousness, Man's World (London: Penguin, 1973), at 90.
60. Kanter, supra, note 18, at 107. Kanter does not customarily question whether the first person reports of her subjects are right or wrong, particularly without further evidence adduced.
61. Mary Kathleen Benet, The Secretarial Ghetto (New York: McGraw-Hill, 1972), at 2-3.
62. W.I.T.C.H. (Women Incensed at Telephone Company Harassment), "AT&T Switchboard" (New York mimeograph, n.d.).
63. David Gurupert, "Women's Liberation Has All But Bypassed the Katy Gibbs Chain," Wall Street Journal March 15, 1974, quoted in Kanter, supra, note 18, at 76.
64. Herbert Marcuse, One-Dimensional Man: Studies in the Ideology of Advanced Industrial Society (Boston: Beacon Press, 1967), at 74-75.
65. David Riesman, The Lonely Crowd: A Study of the Changing American Character (New Haven: Yale University Press, 1950), at 154.
66. "On the Job Oppression of Working Women: A Collection of Articles" (Boston: New England Free Press, n.d.).
67. Susan Rautenberg, "Serving Food: $elling $miles," City Star (New York), repr. in Women: A Journal of Liberation, vol. 4, no. 2 (Spring 1975), at 4.
68. Susan Madar, quoted by Enid Nemy, "Women Begin to Speak Out against Sexual Harassment at Work," in John H. Gagnon, ed., Human Sexuality in Today's World (Boston: Little, Brown, 1977), at 243. The relationship between employment opportunities and the need to "look a certain way" is further commented upon, with its implications for sexual harassment, at 1 Sister Courage 9 (October 1975), and "An Ugly Story: Homely People Need Not Apply," Chomp: Boston's Food and Dining Magazine (September 1976), at 13.
69. Working Women United Institute, "Speak-Out on Sexual Harassment" (Ithaca: N.Y., May 4, 1975 [typescript]), at 35.
70. In 1952 Helen Hacker observed similarities between black people as a group and women as a group. (Presumably, black women are doubly burdened.) In particular, the deferential manner in blacks corresponds to this flattering manner in women, together with careful study of points at which the dominant group is susceptible to influence, as a survival strategy. Helen Mayer Hacker, "Women as a Minority Group," Social Forces 30 (October 1951), at 61, reprinted in many places, including in part by Leo Kanowitz, Sex Roles in Law and Society: Cases and Materials (Albuquerque: University of New Mexico Press, 1973), at 1-9.
71. Ntozake Shange, for colored girls who have considered suicide when the rainbow is enuf (New York: Macmillan, Inc., 1977), at 39.
1. Claire Safran, Redbook Magazine (November 1976), at 149 (hereinafter, Redbook. That respondents were self-selected is this study's most serious
drawback. Its questions are perceptively designed to elicit impressionistic data. (The questionnaire was published in the January 1976 issue.) When the results are interpreted with these characteristics in mind, the study is highly valuable. Scholars who look down upon such popular journalistic forays into policy research (especially by "women's magazines") should ask themselves why Redbook noticed sexual harassment before they did.
2. Much of the information in this chapter is based upon discussions with ten women who shared their experiences of sexual harassment with me from five to twenty or more hours apiece. In addition, I have studied lengthy first person written accounts by five other women. Several women reported the situation and feelings of other women who were being sexually harassed by the same man they were discussing with me. Where permission has been sought and obtained, some of this material will be quoted or referenced throughout. Where quotations in this chapter are unattributed, or statements of fact (such as the racial characteristics of victims and perpetrators) or feelings (such as caring about the man involved) are not otherwise footnoted, they are derived from one or several women from my own research.
Finally, although the context was education rather than employment, much of my grasp of sexual harassment as an experience is owed to the extensive investigation conducted at Yale from 1976 to 1978 by the plaintiffs and the Yale Undergraduate Women's Caucus Grievance Committee in connection with Alexander v. Yale, 459 F. Supp. 1 (D. Conn. 1977). In this research, incidents involving at least half a dozen faculty members or administrators and a total of about fifty women were systematically uncovered and pursued, to the extent the victims were willing.
3. Sex on the job has not gone entirely unnoticed; it is only sexual harassment conceived as such that has been ignored. Two examples illustrated. One study entitled "Rape at Work" reports rapes of women on their jobs by hospital or prison inmates, students or clients; employers, superiors, or co-workers are not mentioned. Carroll M. Brodsky, "Rape at Work," in Marcia J. Walker and Stanley L. Brodsky, eds., Sexual Assault, the Victim and the Rapist (Lexington, Mass.: D.C. Health & Company, 1976), at 35-52. This study is useful, however, for observing dynamics of on-the-job rape that are also true for sexual harassment, whether it includes rape or not. Rape at work was experienced as worse than at other places because it had been seen as a safe place, where the woman did not have to be constantly on guard (at 43-44). And the site of the assault is difficult to avoid (at 44). In another study of "occupations and sex," the examination is divided between jobs "where the occupation involves sex"--cab driving, vice squad duty, and gynecology--and jobs "where the occupation is sex"--stripteasing and prostitution. James M. Henslin, Studies in the Sociology of Sex (New York: Appleton-Century-Crofts, 1971). This defines as the universe for study the rarified extremes of the
convergence of sexuality with work to the neglect of the common experience of thousands of women. See, however, Carroll M. Brodsky, The Harassed Worker (Lexington, Mass., Heath, 1976), at 27-28 for a useful if brief discussion.
4. Recent attempts to understand women's experience from women's point of view have produced upheavals in standard conceptions in many academic disciplines. One clear example is in the field of history. See Gerda Lerner, The Female Experience: An American Documentary (Indianapolis: Bobbs-Merrill, 1977), especially the introduction; Joan Kelly-Gadol, "The Social Relation of the Sexes: Methodological Implications of Women's History," Signs: Journal of Women in Culture and Society, vol. 2, no. 4 (1976), at 809-824; Hilda Smith, "Feminism and the Methodology of Women's History," in Berenice A. Carroll, ed., Liberating Women's History (Chicago: University of Illinois Press, 1976), at 369-384.
5. References to this survey come from three sources. One is my own interpretation of a simple collation of the marginals from the sruvey, generously provided by Working Women United Institute (hereinafter, WWUI). The total is 145 women, because 5 women both attended the speak-out and worked in Binghamton. Whenever possible, I will refer to the published article which reports some of the data and provides some analysis. Dierdre Silverman, "Sexual Harassment: Working Women's Dilemma," Quest: A Feminist Quarterly, vol. III, no. 3 (1976-1977), at 15-24 (hereinafter, Silverman). Finally, Lin Farley's testimony before the Commission on Human Rights of the City of New York, Hearings on Women in Blue-Collar, Service and Clerical Occupations, "Special Disadvantages of Women in Male-Dominated Work Settings" (April 21, 1975) (mimeograph) refers to the same study.
6. United Nations Ad Hoc Group on Equal Rights for Women, Report on the Questionnaire xxxvi, Report on file at the New York University Law Review, reported in Note, 51 New York U. L. Rev. 148, 149, n.6.
7. Letter of December 8, 1976, from Marie Shear, public information officer of the division, to Lynn Wehrli, copy in author's file.
8. Redbook, at 217, 219.
9. Nancy Seifer, "Absent from the Majority: Working Class Women in America" (New York: Institute of Human Relations, National Project on Ethnic America of the American Jewish Committee, 1973), at 11.
10. 1975 Handbook, at 28.
11. Redbook, at 217. The only study I have found that sheds further light upon the statistical prevalence of sexual harassment of women is Diana E. H. Russell's 1978 pretest interviews of ninety-two women randomly selected from San Francisco households. The general purpose of the study was to investigate sexual assault and rape. Her question #46a was: "Some people
have experienced unwanted sexual advances by someone who had authority over them such as a doctor, teacher, employer, minister, or therapist. Did you ever have any kind of unwanted sexual experience with someone who had authority over you?" Responses to this question were 16.9 percent yes, 83.1 percent no. From an examination of the rest of the marginals, it seems possible that these results are low. The more specific and detailed the questions became, the higher the affirmative responses tended to be. A woman who was sexually harassed by more than one authority figure would be counted only once. The percentage of affirmative responses to this question is about the same as to the question about sexual experiences with close relatives, but lower than to those about rape. Several questions were asked about rape. Perhaps more questions on authority figures would have increased the prevalence figures. Since the sampling was done by households, the incidence of sexual harassment might not be as high as it would be in subsamples, for instance, of employed women only. Nevertheless, nearly one-fifth of all women is a lot of women. The most startling result of the pretest is that thirty-four respondents reported a total of sixty-five incidents of rape and attempted rape in the course of their lives, with a pair or group assault counted as one attack. This means that approximately one-third of all women have been raped, or experienced an attempted rape. The preliminary analysis of the full sample of 935 interviews will be available April 1, 1979. Information from Diana E. H. Russell, "The Prevalence of Rape and Sexual Assault," Summary Progress Report, March 31, 1978; Appendix IV: Edited Interview Schedule with Marginals. This research was sponsored by the National Institute of Mental Health and funded through the Center for the Prevention and Control of Rape.
12. Redbook, at 217; Silverman, at 18.
13. Working Women United Institute (now at 593 Park Ave., New York, N.Y. 10021) seems to have been the first to use these words as anything approaching a term of art, at first in connection with the case of Carmita Wood in October, 1975 (infra, note 61). The concept was also used and developed by the Alliance Against Sexual Coercion (P.O. Box 1, Cambridge, Mass. 02139), for example in their "Position Paper #1" (September 1976) and appears in Carroll Brodsky, The Harassed Worker (Lexington, Mass.: Heath, 1976), at 27-28.
14. Sheila Rowbotham, Women's Consciousness, Man's World (London: Penguin, 1973), at 29-30.
15. Adrienne Rich, The Dream of a Common Language, Poems 1974-1977 (New York: W. W. Norton & Co., 1978), "Cartographies of Silence," at 17.
16. This statement is supported by every study to date and by my own research. These dimensions of sexual harassment were further documented at a speak-out by Women Office Workers, 600 Lexington Avenue, New York,
N.Y., in October 1975. Accounts of the event, and WOW's complaint to the Human Rights Commission, can be found in Majority Report, November 1-15, 1975; Paula Bernstein, "Sexual Harassment on the Job," Harper's Bazaar (August 1976); New York Daily News, April 22, 1976; New York Post, April 22, 1976.
18. Silverman, at 18.
19. The information from the Redbook study in this paragraph is at 217, 249.
21. Redbook, at 217.
22. The use of pornographic videotapes is reported in "2 Phone Executives Called Promiscuous--Witnesses Tell of Sex in Offices as Trial on Wrongful Death Nears End in Texas," New York Times, September 3, 1977. The legal action is for the wrongful death of the man who committed suicide on being accused of a fact pattern seeming to amount to sexual harassment of many women employees.
23. Redbook, at 149.
24. Silverman, at 18; Redbook, at 217, 219.
25. WWUI, in May 1974, the median weekly earning for women working full time was $124.00. 1975 Handbook, at 126.
26. The quotations are Ms. Munford's allegations from the Joint Pre-Trial Statement in her case, at 7 and 8, respectively. The decision in the case is Munford v. James T. Barnes & Co., 441 F. Supp. 459 (E.D. Mich. 1977). In addition to Munford, the plaintiffs in Alexander (Price), Barnes, and Miller (see chap. 1, supra, note 5) are black women charging sexual harassment by white men. (Diane Williams is a black woman charging sexual harassment by a black man.)
27. First Amended Complaint for Outrageous Conduct and Slander; Law Action for Unpaid Wages; Demand for Jury Trial, Count IX, Fuller v. Williams, No. A7703-04001 (Ore. Cir. Ct. 1977).
28. See the discussion of vertical stratification in chap. 2.
29. See the discussion of sex roles and sexuality, in chap. 5.
30. Working Women United Institute, "Speak-Out on Sexual Harassment," Ithaca, N.Y., May 4, 1975 (typescript), at 15.
31. Id., at 30.
32. Peggy A. Jackson, quoted in Jane Seaberry, "They Don't Swing to Sex on the Beat," Washington Post, October 13, 1975.
33. Monge v. Beebe Rubber, 316 A.2d 549, 560 (N.H. 1974).
34. Redbook, at 149.
35. See discussion in chap. 6, beginning p. 167. The reference is to the classic formulation by Herbert Magruder of the position that a man should
not be liable in tort for emotional harm resulting from his sexual advances. Magruder, "Mental and Emotional Disturbance in Law of Torts," 49 Harv. L. Rev. 1033, 1055 (1936).
36. Tomkins v. Public Service Electric & Gas Co., 442 F. Supp. 553 (D.N.J. 1976), rev'd, 568 F.2d 1044 (3d Cir. 1977).
37. Transcript of administrative hearing 171, 174, quoted in Brief for Appellant at 18-20.
38. Alexander v. Yale, 459 F. Supp. 1 (D. Conn. 1977).
39. My own research and, for example: "her new supervisor asked her to lunch to discuss a promotion. Over the meal, in a nearby hotel, he said that he wanted to go to bed with her that afternoon and that it was the only way they could have a working relationship." Ann Crittenden, "Women Tell of Sexual Harassment," New York Times, October 25, 1977.
40. Leslie Phillips, "For women, sexual harassment is an occupational hazard," Boston Globe, September 9, 1977.
41. Tomkins, supra, note 36 illustrates these consequences.
42. Monge v. Beebe Rubber, 316 A.2d 549 (N.H. 1974).
43. Barnes v. Train, 13 FEP Cases 123 (D.D.C. 1974), rev'd sub nom. Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977). On this motion the allegations of fact are provisionally considered as if they were true.
44. Williams v. Saxbe, 413 F. Supp. 654, 655-6 (D.D.C. 1976). Order denying motion to dismiss and motion for summary judgement by Judge Richey.
45. Clerk's Record, quoted in Brief for Appellant, at 39.
46. Id., at 80.
47. Elliott v. Emery Air Freight, No. C-C-75-76, slip opinion, at 2 (W.D.N.C. June 21, 1977).
48. Investigative Report, No. 8, 1972, quoted in Brief of Appellee, at 4.
49. Quoted in Enid Nemy, New York Times News Service, Newark Star News, August 24, 1975. This is identical to the fact pattern in Munford v. James T. Barnes & Co., 441 F. Supp. 459 (E. D. Mich. 1977).
50. Redbook, at 217. A recent complaint filed in the Alaska federal district court alleged that the woman was rejected for the position of equal employment officer with a pipeline contractor because she refused sexual relations with the employer's senior management official. Rinkel v. Associated Pipeline Contractors, Inc., 16 E.P.D. 1P#8331 (D. Alaska 1977). See also Kerri Weisel, "Title VII: Legal Protection Against Sexual Harassment," 53 Washington Law Review 123 (1977), at 124.
51. Constantina Safilios-Rothschild, Women and Social Policy (Englewood Cliffs: Prentice-Hall, 1974), at 66.
52. The legal import of this and other possible complications for sexual harassment as a cause of action is discussed in chap. 6.
53. Rothschild, supra, note 51, at 66.
54. Loc. cit.
55. See Rosabeth M. Kanter, Men and Women of the Corporation (New York: Basic Books, 1977), at 233-236. Gloria Steinem has suggested that "sexual harassment might be called the taming of the shrew syndrome." "Women Tell of Sexual Harassment," New York Times, October 25, 1977. This may be true for women who are perceived as powerful, but my investigations suggest that as many, if not more, women are sexually harassed whom the perpetrators perceive as powerless.
56. Brief for Appellants, at 17, Corne v. Bausch & Lomb, 562 F.2d 55 (9th Cir. 1977).
57. Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894 (1938). Discharge is revenge for what was termed "the superior's failure to alienate the affections of the employee's wife" was held to impose no employer liability under a contract of employment. Here, the contract expressly provided that the employee would not be terminated as long as his services were satisfactory. The supervisor had reported that the plaintiff's services were unsatisfactory in revenge for the employee's wife refusal of the supervisor's sexual advances. The discharge, although found malicious and improper and based on a false report of unsatisfactory performance, was held within the employer's right under the contracts.
58. NLRB v. Apico Inns of california, 512 F.2d 1171, 1173 (9th Cir. 1975).
59. In re Nancy J. Fillhouer, No. SJ-5963, California Unemployment Insurance Appeals Board (May 12, 1975) (Referee), rev'd, Appeals Board Decision No. 7505225 (July 2, 1975).
60. This and prior statement are contained in the statement by the referee of allegations of claimant, Decision of the Referee, at 1.
61. In re Carmita Wood, App.No. 207.958, New York State Department of Labor, Unemployment Insurance Division Appeal Board (October 6, 1975).
62. Brief for Claimant-Appellant, at 1.
63. Id., at 2; Affidavit of Carmita Wood, at 3.
64. Affidavit of Carmita Wood, at 3.
65. Fuller v. Williames, No. A7703-04001 (Ore. Cir. Ct. 1977).
66. Shulamith Firestone, "On the Oppression of Working Women: A Collection of Articles" (Boston: New England Free Press, n.d.).
67. An unnamed woman quoted in Nemy, supra, note 49.
68. Id. (This is a different woman from that quoted in the foregoing quotation.)
69. Silverman, at 18, 19.
70. Redbook, at 149; WWUI; all my own cases.
71. Rowbotham, supra, note 14, at 90.
72. Lynn Wehrli, "Sexual Harassment at the Workplace: A Feminist Analysis and Strategy for Social Change" (M.A. thesis, Massachusetts Institute of Technology, December 1976).
73. Silverman, at 19.
74. All my cases and all the studies comment upon a need to be polite during the incident, or to exit politely.
75. WWUI; Silverman, at 19.
76. Statement by [Mr. X], Lab. of Nuclear Studies, Transcript at 37, In re Carmita Wood, Case No. 75-92437, New York State Department of Labor, Unemployment Insurance Division (Referee).
77. RedBook, at 219; all my cases mentioned this fear as substantial, even paralyzing.
78. Bill Korbel, quoted in Lin Farley, "Sexual harassment," New York Sunday News, August 15, 1976, at 12.
79. One Yale graduate student observed: "A student making a major complaint would expose herself in a way that's more harmful than harassment. The complaint could have a much more profound effect on your future and the focus of your education than the instance of harassment." Quoted by Alice Dembner, "A Case of Sex Discrimination," Yale Gradute-Professional, vol. 7, no. 14 (March 6, 1978), at 7. See also "Sexual Harassment: A Hidden Issue" (Project on the Status and Education of Women, Association of American Colleges, 1818 R. Street, N.W., Washington, D.C. 20009, June 1978), at 3: and Donna Benson, "The Sexualization of Student-Teacher Relationships" (unpublished paper: Berkeley, California, 1977).
80. Lin Farley, quoted by Enid Nemy,
note 49; see also Farley's testimony, supra, note 5.
81. Redbook, at 219.
82. Gates v. Brockway Glass Co., Inc., 93 L.R.R.M. 2367 (C.D. Cal. 1976).
83. Id., at 2367. See also the account by Morris Stone, "Blacklash in the Workplace," New York Times, June 11, 1978, Business Section, p.3.
84. Michele Noah, "Sexaul Harassment on the job," Sister Courage (Boston, May 1978), at 9.
85. Loc. cit.
86. Transcript, Permanent Commission on the Staus of Women, Public Hearing, New Haven, Connecticut, January 22, 1975. A study of the role of sex in the life of the cab driver suggests a similar attitude. James M. Henslin, Studies in the Sociology of Sex (New York: Appleton-Century-Crofts, 1971).
87. Transcript of hearing, In re Carmita Wood, Case No. 75-92437, New York State Department of Labor, Unemployment Insurance Division, at 19, 37.
88. Brief for Claimant-Appellant, In re Carmita Wood, App.No. 207.958, New York State Department of Labor, Unemployment Insurance Division Appeal Board (October 6, 1975), at 19.
89. Eleanor L. Zuckerman, "Masculinity and the Changing Woman," in Zuckerman, ed., Women and Men: Roles, Attitudes and Power Relationships (New York: Radcliffe Club of New York, ca. 1975), at 65.
90. Lin Farley, testimony, supra, note 5, at 65.
91. Transcript, Permanent Commission on the Staus of Women, supra, note 86, at 5.
92. Lin Farley, testimony, supra, note 5, at 3.
93. One example is provided in a recent news article which reported a strike by eight waitresses against sexual harassment by the management at a restaurant in Madison, Wisconsin: "Ellen Eberle, a waitress at Dos Banditos said that sexual harassment by the management was a constant problem. 'Pete says he never touches 'his girls' but it's not true. He's touched me a number of times and I didn't like it and I've told him so. It's perverted and it makes me sick. He's very blatant about it and he makes gross jokes.' The strike was called after the owners and management refused to listen to the grievances; the waitress went back to work after a settlement that they described as a "complete victory," Off Our Backs, vol. VIII, no. 5 (May 1978), at 10.
94. Kanter, supra, note 55, at 88.
95. See discussion at 156-58, infra.
96. For commentary on this point written by men, see Jack Litewka, "The Socialized Penis," and other articles in For Men Against Sexism, Jon Snodgrass, ed. (Albion, Cal.: Times Change Press, 1977), at 16-35.
1. Quoted in Studs Terkel, Working (New York: Avon, 1974), at 58, 59, 61.
2. Susan Griffin, "Rape: The All-American Crime," in Mary Vetterling-Braggin, Frederick A. Elliston, an Jane English, eds., Feminism and Philosophy (Totowa, New Jersey: Littlefield, Adams & Co., 1977), at 331.
3. Susan Brownmiller, Against Our Will: Men, Women and Rape (New York: Bantam Books, Inc., 1976.
4. Lorenne M. G. Clark and Debra J. Lewis, Rape: The Price of Coercive Sexuality (Toronto, Canada: The Women's Press, 1977), at 167.
5. Carolyn M. Shafer and Marilyn Frye, "Rape and Respect," in Vetterling-Braggin, supra, note 2, at 340.
6. Susan Rae Peterson, "Coercion and Rape: The State as a Male Protection Racket, " in Vetterling-Braggin, supra, note 2, at 364.
7. This is especially apparent throughout Brownmiller, supra, note 3; see, for example, 283 and 436.
8. This position presumes that the standard definition of consent is meaningful. Brownmiller is particularly illustrative. Never is it asked whether, under conditions of male supremacy, the notion of consent has any real meaning for women. At most, Brownmiller refers to factors of "authority" that disable a woman from witholding consent (as in "dating rape," supra, note 2, at 284). Consent is not scrutinized to see whether it is a structural fiction to legitimize the real coercion built into the normal social definitions of heterosexual intercourse. Since rape is ultimately unwanted intercourse--this is what the presence of physical force is there to prove--is that not the whole issue? Without it, the presumed split between rape and normal sexual behavior supports the very system of existing law and ideology that the book purports to challenge. If consent is not normally given but taken; it makes no sense to define rape as different in kind. To do so sets women up to fail in accusations of rape when they cannot prove that this situation appears different from most heterosexual encounters. Brownmiller's posture on this crucial issue may, in addition, account for the acceptance of Against Our Will. It allows the reader to be suitably horrified at rape--in this the book makes a major contribution--without ever questioning his own potential complicity. Rape is defined in terms far removed from the everyday experience of most readers. They need never confront whether women have a chance, structually speaking and as a normal matter, even to consider whether they want to have sex or not.
9. The discussion of this point is especially clear in Clark and Lewis, supra, note 4, at 144 and 150.
10. Clark and Lewis, supra, note 4, at 94.
11. Psychodynamic parallels between victims of incest, of sexual harassment, and rape suggest that intimate violation of women by men should be considered a unified set of events, especially where women's collaboration in their own sexual violation is coerced by other forms of social power wielded by men. "Having been frequently obliged to exchange sexual services for protection and care," one clinical study of incest concludes, "women are in a position to understand the harmful effects of introducing sex into a relationship where there is a vast inequality of power." Judith Herman and Lisa Hirschman, "Father-Daughter Incest," Signs: Journal of Women in Culture and Society, vol. 2, no. 4 (Summer 1977), at 735-756. In incest, as in sexual harassment, the overwhelming predominance of instances involve a male perpetrator and female victim, id., at 736. Behavior ranges in coerciveness from "the affectionate through the seductive to the overtly sexual, " id., at 742. Secrecy is used in both the coerce a sense of complicity, producing guilt at the thought of exposure. Beating and rape often accompany refusal to participate. Characteristics are constant across classes. Victims tend to "tune out" the whole thing or pretend that nothing is happening, id., at 474, and identify with the aggressor. Professionals deny the existence of the phenomenon, blaming the victim for seductiveness. Perpetrator, doctor, psychotherapist, and judge alike deny that any real harm has been done to the victim. Given these striking similarities, the differences also bear comment. Incest is often in the context of a caring relationship; it is the sexual aspect that is forced. It is unclear if the sex would be experienced as a form of love were it not thought of as wrong. In rape, by contrast, the sex would be considered all right were it not for the force. Sexual harassment at work may be thought of as a kind of cross between the two. The sex itself is not strictly prohibited as between these parties; often there is a caring relation, at least a bond of a sort; but the sex is not wanted, is often forced, although often the consent is forced, as in incest. Also like incest, sexual harassment may for a time give the woman a sense of her value or a recognition as a person that the relationship otherwise lacks, even as she feels used and degraded.
12. Some other writers' work can be read as tending in this direction. See Diana E. H. Russell, The Politics of Rape (New York: Stein & Day, 1975); Andrea Medea and Kathleen Thompson, Against Rape (New York: Farrar Straus & Giroux, 1974), and, to some extent, Pamela Foa, "What's Wrong with Rape," in Vetterling-Braggin, supra, note 2, at 347-359.
13. Shafer and Frye reveal more than they realize (or pursue) when they observe, "rape is a man's act, whether it is a male or a female man and whether it is a man relatively permanently or relatively temporarily; and
being raped is a woman's experience, whether it is a female or a male woman and whether it is a woman relatively permanently or relatively temporarily…" supra, note 5, at 334. This is the social gender argument in pure form. Given the ways sex roles have defined sexuality and distributed control over material life, sexual harassment could be argued, within the inequality perspective, to be an act of the male gender, whether done by a biological male or female. Being sexually subjected could be argued to be a woman's experience, whether the victim is a woman or a man.
back to top