Vol. 16 No.5 (May, 2006), pp.336-340

CONFRONTING SEXUAL HARASSMENT: THE LAW AND POLITICS OF EVERYDAY LIFE, by Anna-Maria Marshall. Burlington, VT: Ashgate Publishing Co, 2005. 200pp. Hardback. $89.95/£55.00. ISBN: 0754625206.

Reviewed by Susan M. Behuniak, Department of Political Science, Le Moyne College. Email: behuniak [at] lemoyne.edu.

It has been nearly 30 years since unwanted sexual attention at work was first labeled as “sexual harassment” and federal courts first recognized this conduct as a form of sex discrimination prohibited under Title VII. Since then, the law has gotten even tougher:  the definition of sexual harassment has expanded from quid pro quo to include the creation of a hostile work environment; the behavior of same-sex harassment has been included within the prohibitions; employers have been warned that they must adopt grievance procedures; and employers have been held liable for offending conduct even when they claimed to have not been aware of it.

Stern pronouncements all, and still…

In this book Anna-Maria Marshall documents what most working women know—that sexual harassing behaviors have not in fact disappeared. It is this gap between what she calls the “law on the books” and the “law in action” that is the subject of this study. She quotes Joanna Grossman (2003) who summarizes the problem succinctly: “[A] near-perfect state of rule compliance can peaceably co-exist with an uncomfortably high level of harassment” (p.55).

So, how to explain this discrepancy between rules and practices? What, indeed, has gone wrong? In addressing this gap between law and everyday life, Marshall employs the legal consciousness framework suggested by Patricia Ewick and Susan S. Silbey (1998). The end result is a book that makes dual reinforcing points. The first point is a convincing explanation as to why sexual harassment rules have not had the desired effect of ending these behaviors, and the second point is to demonstrate the utility of the legal consciousness framework as a methodology for studies on law and society.

CONFRONTING SEXUAL HARASSMENT is divided into seven chapters. The first three chapters set the theoretical context in which the later chapters place Marshall’s original research. Chapter 1 establishes the method that she uses to study sexual harassment—a bottom up approach to law and social change that takes as its starting point the experiences of those the law is designed to benefit. Here, she draws from two strands of law and society methods:  legal mobilization and legal consciousness. The former usually employs data gleaned from surveys, while the latter asks individuals how they deal with conflicts in their lives and the extent to which they draw on the law to help them resolve them. Following the stages suggested by Felstiner, Abel, and Sarat (1980), the legal mobilization [*336] approach investigates how people name the harmful experience, assign blame, and make claims for redress. In contrast, the legal consciousness approach draws on narrative accounts to capture the frames that people use in understanding the conflict and under what circumstances they then invoke the law, thereby giving meaning to legal rules.

Marshall’s strategy to avoid the limitations of each method, and to study law while also de-centering it, is to synthesize the two methods: the data she draws from narratives are compared to the data from a survey. More specifically, in-depth interviews were conducted with 25 women to collect individual accounts of sexual harassment, and approximately 350 female subjects answered the survey. Her choice of population—that of female members of the administrative staff at one particular university (that she refers to as The University)—will surely raise eyebrows. Why women only? Why at a university? And why no faculty or students? The first question is the least problematic one, because, since it is still women who are the overwhelming victims of harassing behaviors, it makes sense to focus on them. But it does strike me as odd to focus on women in a university setting and to exclude from the study the very people who make The University a unique setting—faculty and students. Marshall is aware of how her choices might limit the generalizability of her study, but does not offer a convincing explanation as to why she chose this particular setting to examine the experiences of working women.

Chapter 2 continues the set-up of the study but from a different direction. Here, Marshall traces the legal environment of sexual harassment, from the pioneering works of Lin Farley (1978) and Catharine MacKinnon (1979), to the judicial expansion of the term from meaning quid pro quo conduct to include the hostile work environment complaint. Marshall points out that it was the judiciary’s emphasis on employer liability that resulted in the near universal response of the promulgation of grievance procedures. Yet, as Marshall foreshadows here, the main objective of these policies seemed to be how to protect the employers rather than how to protect the women – a fact not lost on the women at The University who were skeptical as to the purpose of their own policy.

The third chapter takes a step back from the legal focus to explore the various ways that sexual harassment is understood as an injustice. Although sexual harassment was first defined by the feminist movement as an abuse of power and has since been legally defined as a form of sex discrimination, sexual harassment is still a contested concept. For example, Marshall notes that Feminists for Free Expression have criticized the expansion of sexual harassment to include any form of sexualized behavior in the workplace, while other scholars have argued that practices that come from a male culture in the workplace may not be discriminatory but just business as usual (i.e., boys being boys).  Although these perspectives pressure women to rethink whether they are being overly sensitive or too willing to embrace victimhood, [*338] Marshall argues that it is the management frame of sexual harassment that is particularly undermining. From the perspective of human resources, sexual harassment is bad for business and is therefore “a problem for employers rather than women” (p.80). The effectiveness in protecting the employer therefore becomes the gauge for a sound policy. Marshall observes that oddly enough, all three frames (feminist, critics of feminists, and human resources) agree that women should confront their harassers, and if that fails to stop the behavior, then complaints should be filed under the grievance policy.

How, then, did women in the workplace of The University view the harm of sexual harassment, when did they name it as such, and what did they do about it? The next three chapters explore these questions by drawing on Marshall’s interview and survey data. She concludes that it is politics that shape the perception of harm, and law that influences when women label offensive behavior as sexual harassment.

The process that women use to evaluate their experiences is the subject of Chapter 4. Here, Marshall demonstrates the fruitfulness of her innovative methodology. She states that “The perception of injury is a stage in the development of a dispute where oppositional consciousness and legal consciousness may intersect, but it is also a stage that has been overlooked in the legal consciousness literature” (p.89). Indeed, her findings support previous studies that conclude that sexual harassment is still commonplace. The women interviewed and surveyed indicated that while the more intrusive behaviors such as those involving physical contact were considered harmful, they differed in their evaluations of other sexualized conduct, thereby departing from the feminist frames. Marshall concludes that the perception of harm should not be taken for granted by researchers: “While [the women] draw on their personal feelings in making this evaluation, they draw on general frames obtained in the political and cultural debates on equality and sexual freedom for women that problematize everyday life” (p.118).

Chapter 5 makes the oft-overlooked point that sexual harassment cannot be confronted if it is not named. Marshall reminds the readers of the priviso from HARRIS v. FORKLIFT SYSTEMS, INC. (1993): “If the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” The problem is, however, that women do not rely on EEOC or court definitions but turn instead to other sources for guidance, such as brochures from their employers, training programs, and the mass media. Therefore, some of the women at The University considerably narrowed the legal definition by excluding behaviors that made them uncomfortable and by excusing the harassers as just “dirty old men.” For these women, then, sexual harassment does not remain a legal abstraction; instead, they actively defined and applied their understanding to the behaviors they encountered, thereby “creating the legality of sexual [*339] harassment in the workplace” (p.140). Marshall’s contribution here is in offering concrete evidence that law is not created by judges and policymakers alone, but shaped at ground level by the anticipated beneficiaries who are influenced by their own everyday realities and individual understandings.

In Chapter 6, Marshall brings to the forefront a depressing point: “[A]fter 30 years of efforts to regulate sexual harassment in the US, many women are essentially on their own when confronting sexual harassment at work” (p.141). She explains that courts have “entrusted the protection of these rights to employers” who have their own institutional interests (p.141). And so it is that a legal right to work in an environment free of discrimination has morphed into a legal right to complain. Knowing this, many women decide to either confront the behavior on their own or to “lump it,”—that is, put up with it or escape from it by transferring or quitting.

In the final chapter, the author reiterates the point that the problem of sexual harassment is usually studied from the viewpoint of elites – policymakers and employers – and rarely from the perspective of working women. Marshall’s contribution to the field is that she provides a voice for those who should be the beneficiaries of the law—the harassed. Therefore, her method succeeds in supporting the point that measuring the social changes expected to follow from changes in the law needs to be done not only from the view at the top but also from the vantage point of the ground up.

In following the dictates of sound qualitative and quantitative research, Marshall is very careful to allow the data to speak for themselves and to stay within the confines of her study as she draws her conclusions. However, having served for years on the sexual harassment board at my college, Marshall’s points resonate with me beyond what she explicitly states. For instance, her data also debunk several myths that persist in shaping the debate about this issue:  that women are quick to cry harassment; that policies are skewed toward the rights of victims; and that feminist ideology exaggerates and fuels the complaints. She also provides a convincing answer to one of the frustrating questions of sexual harassment board members: why don’t those who are harassed reach out to trigger the policy? While she does not say it outright, the main problem seems to be that employers are complicit; they are more interested in avoiding a lawsuit (filed by either the accused or the accuser) than they are in eradicating this form of sex discrimination in the workplace.

This is an important point that needs to be more boldly stated because it may be tempting for some readers to conclude from Marshall’s data that women are at fault for failing to name sexual harassment, blame the harassers, and claim their rights under Title VII. Marshall does not in fact argue this, but to ensure against misunderstanding the implications of the data, I would have had her conclude with a more expansive final chapter to argue the need to alter the working and legal cultures in order to enable women to exercise their rights. [*340] Yet, hers is not intended as a prescriptive work; her goal was to uncover the reasons for the gaps between legal promises and everyday realities. This she clearly accomplishes. It is therefore left to those of us in the field to use this knowledge to confront sexual harassment in everyday life more effectively.

REFERENCES:

Ewing, Patricia, and Susan S. Silbey. 1998. THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago: The University of Chicago Press.

Farley, Lin. 1978. SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF WOMEN ON THE JOB. New York: McGraw-Hill.

Felstiner, William L.F., Richard L. Abel, and Austin Sarat. 1980-81. “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . .” 15 LAW & SOCIETY REVIEW 631-55.

Grossman, Joanna L. 2003. “The Culture of Compliance: The Final Triumph of Form Over Substance in Sexual Harassment Law.” 26 HARVARD WOMEN’S LAW JOURNAL 3-76.

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

CASE REFERENCES:

HARRIS v. FORKLIFT SYSTEMS, INC., 510 U.S. 17 (1993).

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© Copyright 2006 by the author, Susan M. Behuniak.