Vol. 14 No. 7 (July 2004), pp.558-562                                                                                                                 

DIRECTIONS IN SEXUAL HARASSMENT LAW, by Catharine A. MacKinnon and Reva B. Siegel (eds.).  New Haven: Yale University Press, 2003.  752pp.  Cloth.  $50.00.  ISBN: 0-300-09800-6.

Reviewed by Kathleen S. Sullivan, Department of Political Science, Ohio University.  Email: sullivak@ohio.edu

It has been 25 years since the publication of Catharine MacKinnon’s SEXUAL HARASSMENT OF WORKING WOMEN.  Coinciding with the anniversary, Mackinnon and Reva Siegel have edited DIRECTIONS IN SEXUAL HARASSMENT LAW, drawn from a 1998 Yale Law School symposium.  The volume’s forty contributors address the gains made since the publication of MacKinnon’s seminal book, ongoing challenges, and future directions.

Siegel introduces the volume with background on the feminist activism of the 1970s and the process by which federal courts came to recognize sexual harassment as sex discrimination.  In a broader historical perspective that includes the nineteenth century she demonstrates that sexual harassment has been a long-held practice in the United States and that women’s rights activists have continually campaigned against it.  History also indicates that sexual harassment practices have been fairly stable.  Today the classic model of harassment is joined by new forms, and definitions of sex discrimination remain indeterminate.  Such elusiveness, she points out, is a source of power, allowing the law to adapt to changed circumstances. 

Part I, “Contexts,” includes some of the more practical contributions to the volume.  Andrea Dworkin reminds her audience of the real injuries and consequences experienced by targets of sexual harassment.  Anne Simon offers her experience in representing the plaintiffs in ALEXANDER v. YALE UNIVERSITY, an early sexual harassment case that relied on Title IX.  It led not so much to legal doctrine as to the institutionalization of grievance procedures in universities.  Pamela Price, however, laments that many schools do not have grievance procedures in place and that the Supreme Court dealt a “mortal blow” to Title IX in its GEBSER decision.  Gerald Torres provides another sense of context in offering an ecological model of justice, a model from critical race theory that remains suspicious of the abstraction of the subject and conceptions of justice in the law.  He finds in MacKinnon’s feminism a shared project of calling formal equality into question, drawing attention to social inequalities, and retaining a focus on structural collective problems.

Part II addresses “Unwelcomeness,” a reference to the “unwelcome sexual advances” included in EEOC guidelines on sexual harassment.  Difficulties in defining and demonstrating that sexual advances in the workplace were unwelcome is the recurring concern in this part, as is a social context in which backlash is part of the context. [*559]

Carol Sanger considers the definition of consent in light of the reactionary complaints that sexual harassment doctrine has “spoiled” camaraderie and consensual sex in workplace relations.  Kathryn Abrams recalls Jeffery Toobin’s 1998 NEW YORKER article, which found sexual harassment doctrine to be misguided, as one of many skeptical and reductive accounts of sexual harassment emerging in the popular press. 

Whether a sexual advance is unwelcome is determined by the target’s subjective reception.  It would seem that this is an advance for feminist jurisprudence, as it takes into account a woman’s voice and experience.  Abrams notes, however, that it invites undue scrutiny of actions of the target.  Louise Fitzgerald points out that, despite the opportunity to invite her subjective experience, the standards by which her reception is assessed are external and objective.  Demonstrating that one found sexual advances to be unwelcome is complicated by the coping behaviors which some women may adopt in the workplace.  Jane Larson denotes the target who “goes along to get along”—i.e., who goes along with the jokes or insults in order to cast herself as a companionable employee (p.131).  She may be able to retain her job, but she may then have difficulty convincing a court that the behavior was unwelcome.  Robin West raises the stakes by providing a theory of the harm of sexual harassment.

The mounting tension in Part II gives way to new considerations of identity and power in Part III, “Same-Sex Harassment.”  After the ONCALE decision, which recognized a hostile environment made by men for a fellow male employee, feminists have had occasion to rethink their initial focus on women.   William Eskridge points out that the term “sex” in Title VII of the Civil Rights Act of 1964 and in the Supreme Court test, “because of sex,” is sufficiently vague so that it might refer to sex as biological dimorphism, or sex as gender, or sex as sexuality.  Katherine Franke likewise encourages a shift in focus away from women in explaining that what’s wrong with sexual harassment is not that it is a practice used to dominate women, or that the conduct is sexual. Rather, it is a practice by which members of society can police gender norms and punish those who deviate.

With a ready recognition of same-sex harassment established, Janet Halley complicates the development by distinguishing between a gay-identity approach and a queer approach.  The former is not dissimilar to a feminist approach in its reliance on identity.  The queer approach refuses to recognize fixity to the male-female model or to a gay-straight model of identity.  Drawing upon a queer theory of power, she views sexual harassment law as a misguided form of sex regulation and instead sees the presence of sex in the workplace as an opportunity to exploit and to rearrange “conventional associations of the feminine with subordination and the masculine with power” (p.196).  Mark Spindleman and Christopher Kendall respond to Halley’s argument with a defense of both the gay-identity approach and underlying theories of radical feminism, invoking the real injuries suffered by targets of sexual harassment. 

Who bears responsibility for the injuries of sexual harassment is the topic of Part IV, [*560] “Accountability,” which considers whether and how individuals and their employers can be held liable.  In her 1979 book, MacKinnon rejected tort law to address sexual harassment in the workplace because it is too individualized; it constructs sexual harassment as one individual behaving badly rather than acknowledging the social context that gives rise to the many forms of structural power and privilege enjoyed by the sexual harasser.  The essays in this section further reflect on the role of torts in current sexual harassment law, and the findings are mixed.  Ann Scales sees little advantage in using tort law to establish liability.  Judith Resnik suggests alternative means to rendering institutions liable, such as collective worker organization or insurance.  David Oppenheimer, however, turns to tort law’s doctrine of vicarious liability:  The principal who is responsible for his agent would thus be responsible for harassment and would suppress sexual harassment out of enlightened self-interest.  In this strategy, the status of tort law comes into play with individual rational calculation.  Another resource can be found in the reasonable person standard which, as Robert Post points out in a later essay, draws upon social norms and constructs them simultaneously.

“Speech” is a relatively new direction examined in Part V.  When sexual harassment was initially recognized, its implications for freedom of speech were not raised.  That changed with ROBINSON v. JACKSONVILLE SHIPYARDS, in which pictures of nude women were found to create a hostile environment.  The ACLU got involved, and so began the discussion of whether sexual harassment policies are a form of speech suppression.  Frederick Schauer provides this background and comes out on the side of sexual harassment policies, citing the narrowness of First Amendment protections as its strength.  Dorothy Roberts and Robert Post defend sexual harassment in the face of first amendment claims by drawing upon other values—Roberts, the collective injury experienced by those who are not even the primary target of harassment, and Post, by invoking the value of democracy to ensure a social space of autonomy.

Kingsley Browne offers the civil libertarian position and argues that sexual harassment policies pose “too high a cost” on protections of speech.  Jack Balkin, on the other hand, sees sexual harassment doctrine as consistent with existing rules of free speech doctrine.  An additional account of the Canadian experience from Janine Benedet completes the diversity of approaches, but there remains room for even more directions.  The debates about power that emerged with same-sex harassment can come into play here.   Free speech issues promise to expand in the future, with the possibility of contributing to free speech theory as well as to sexual harassment literature.

Part IV, “Extensions,” begins with two essays on race.  This is intended to inform questions of racial justice (p.28), but, as Tanya Kateri Hernandez’s essay conveys, sexual harassment itself is racialized.  Understandings of sexual harassment would therefore benefit from studies that meet at the intersection of race and sex.  Adrienne Davis provides such a study by identifying slavery as institutionalized sexual harassment, a novel idea that has great purchase in [*561] locating intersectionality in American history.  With neither law nor authority available as recourse in the face of harassment and sexual assault, female slaves would resist and find a community supporting them in their efforts.  Such accounts of the history of sexual harassment aid in constructing an even richer narrative of sexual harassment in the United States, positioning race as central to the story of sexual harassment, rather than as an extension.

Other essays in this section deal with related issues—employment termination policies in Europe, the Violence Against Women Act, and battered women’s shelters—in extending the contributions of sexual harassment theory to other areas of women and law.

The final section, “Transnational Perspectives,” follows the trajectory of sexual harassment law outside of the United States, in Israel, Germany, France, Japan, India, and as an international human rights issue.   Although the concept has been “spreading across the globe,” as Abigail Saguy points out, “closer examination reveals that the concept and law of sexual harassment is actually transformed in its transnational translations” (p.614). The transnational perspective elucidates the cultural dimensions of sexual harassment law and, furthermore, of legal systems.

Catharine MacKinnon concludes the volume with an afterword in which she points to the changes that sexual harassment law has wrought.  In short, “sexual politics went public”  (p.673).  She anticipates that the next 25 years could see sexual harassment law become trivialized as puritanical sexual panic, or it could be made even more meaningful.

The depth of subject matter and debate of this collection reflect a vitality that promises to guide future directions of sexual harassment law and theory.  The richness and open-endedness of the issues in this volume make it ideal for a class in women and law or feminist jurisprudence (if supplemented with the MacKinnon text and relevant cases).   But why marginalize it?  A course in jurisprudence or law and politics could draw upon these essays to illustrate litigation strategies, meanings of consent, the individual and society in law, freedom of speech doctrine, and international law.  These essays attest to feminism’s role in utilizing the legal system but also to its ability to expose the tensions and premises of law. 

REFERENCES:

MacKinnon, Catharine A.  1979.  SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION. New Haven: Yale University Press, 1979.

Toobin, Jeffrey.  1998. “The Trouble with Sex,” NEW YORKER, February 9, 1998, p.48.

CASE REFERENCES:

ALEXANDER v. YALE UNIVERSITY, 459 F. Supp. 1 (D. Conn. 1977); aff’d 631 F 2d 178 (2d Cir. 1980).

GEBSER v. LAGO VISTA INDEPENDENT SCHOOL, 524 U.S. 274 (1998). [*562]

ONCALE v. SUNDOWNER OFFSHORE SERVICES, 523 U.S. 75 (1998).

ROBINSON v. JACKSONVILLE SHIPYARDS, INC., 760 F. Supp. 1486 (1991).

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Copyright 2004 by the author, Kathleen S. Sullivan.