Friday, December 08, 2017

The Other Kind of Sexual Harassment

by Sherry F. Colb

In my column this week, I discuss what I take to be at least one reason for the longstanding reluctance (by men and women) to believe women who say they have been raped or sexually harassed by seemingly normal, ordinary men. The reason has to do with the disturbing implications of acknowledging that such conduct has occurred. Disbelief in individual cases then functions as a form of denial across the board. In this post, I want to talk about a type of sexual harassment that has not been on the national radar lately but that is nonetheless a significant impediment to women's equality and to their sense of safety and wellbeing in the workplace.

If one is paying any attention at all to the news these days, one has noticed the tidal wave of sexual harassment (and sexual assault) complaints against public figures. Though the number of complainants (as well as the number of accused perpetrators) is disturbing, it also (one hopes) signals a change in how people perceive such conduct. Victims need no longer feel ashamed and thus unable to speak out about what has befallen them through no fault of their own, and potential perpetrators might feel deterred from their planned behavior by the prospect of being held accountable. They can no longer rely on silence to shield them from any consequences. At least some of the people accused (with at least one notable exception occupying the White House) have faced serious repercussions for sexually predatory conduct that in some cases included sexual assault.

In reading about most of the sexual harassment stories in the news, one could easily come to the conclusion that sexual harassment necessarily includes an element of sexual desire or arousal. Some men were accused of forcibly kissing women, others of groping women without consent, and still others of exposing themselves or masturbating in front of women. And the victims were not all women. But what most share in common is a predator's having sought to gratify his sexual appetites by preying on either an adult or a child who showed no reciprocal interest or desire (or who affirmatively showed a lack thereof).

These examples of sexual harassment are worthy of condemnation and punishment. They do not, however, exhaust the types of sexual harassment that people experience, in the workplace or otherwise. To qualify as a sexual harasser, a person need not either experience or manifest any sexual desire or arousal for his victim or for anyone else. Sexual harassment can consist of creating a hostile environment in which the victim is expected to function, where the hostility is connected to the victim's being male or female (or non-binary).

Some examples should provide a ready illustration. Imagine that a woman goes to work at an office shared by many other employees. Imagine further that after the woman is hired, unknown co-workers secretly begin to post insulting messages about the woman in her cubicle, messages like "go home, bitch" and "a woman's place is in the home" or even something that targets her for a combination of her gender and her age, such as "you're too old for this place" and "get lost grandma," where an older man could expect to avoid similar messaging. In Price Waterhouse v. Hopkins, the U.S. Supreme Court held that an employment decision (not to promote a woman to partnership) could violate the law prohibiting sex discrimination in employment where an express reason for the the decision was a woman's failure to conform to the sex role stereotype (of wearing makeup and jewelry, among other things). It is thus actionable sexual harassment to mistreat a woman at work, even if sexual desire played no part in the mistreatment and even if it is precisely a woman's lack of "femininity" that triggers the abuse rather than the unadorned fact of the woman's sex.

It is useful to understand these types of conduct as sexual harassment, because such an understanding sheds light on what makes the "sexual" types of sexual harassment along with rape more than simply civil or criminal misbehavior but woman-hating and discriminatory behavior as well. I recall once having a conversation with someone who claimed that rape was just another crime, like murder and aggravated assault, rather than a woman-hating crime. He simply failed to "get" the fact that the violence of rape is as traumatic and harmful as it is because it (and the possibility of it) makes women scared to leave their houses in a way that men outside of a prison environment need not be scared. It is an extreme form of gender-specific bullying.

Some people have argued that rape is not about sex but about violence, and that is plainly false. Men who commit rape are generally sexually aroused, and they most often consider their actions to be sexual in nature. But it is certainly not only about sex. It is also and always about violence too and, more precisely, about violence against a woman (or a nonconforming man) directed against her because she is a woman. It is a way of telling her that although she may believe she is a valuable individual with a right to autonomy and bodily integrity, she is actually an object to be sexually used by a man who feels like using her, regardless of her own wishes.

It is critical for us to understand the connectedness of all forms of misconduct undertaken on the basis of sex. All of it represents a form of sex-driven bullying, whether sexual desire plays a role in it or not. And we can perhaps hope that all of it will stop happening at the rate that it currently does and/or will be called out when it happens for the detestable wrongdoing that it is.


Shag from Brookline said...

On an earlier thread at this Blog I queried whether the failure to timely ratify the Equal Rights Amendment (ERA) may have contributed to continuing sexual harassment/assault. Neither the poster (not Prof. Colb) nor any commenters took the bait. I made a similar query at another legal blog. Silence there as well. While the 19th A ratified in 1920 granted women the right to vote, it did not address other areas of equality with men. Here's a link:

to a history of what happened to the ERA. While some federal and state statutes have addressed certain rights for women, that's not the same as an amendment to the Constitution, just as the 13th A was necessary following Lincoln's Emancipation Proclamation. The ratification of ERA might not have resulted in eliminating sexual harassment/assault, but it might have helped diminish such. Equal pay and other workplace issues involving women might have followed by statute, reducing the power of men in the workplace over women that has contributed to sexual harassment/assault.

David Ricardo said...

I am wondering if it might be useful to talk about these issues in terms of 'gender discrimination/assault' to differentiate a hostile environment/assault on a person that is independent of an act of a sexual nature. Clearly there are hostile acts perpertrated against both women and men in the workplace and other areas which are not motivated by a sexual desire but instead by a discriminatory animus based on gender and/or gender orientation.

Thus the example of the hostile workplace described by Ms. Colb above could be said to be gender driven while actions that derive from a peverse sexual attitude that contain an element of sexual assault would be said to be driven by some sexual motivation (of course the incident could be both gender and sexual assault.) In each situation the individual should be protected by the force of law, but they are different in nature and probably need to be addressed with separate standards and remedies.

Joe said...

"Some people have argued that rape is not about sex but about violence, and that is plainly false"

I appreciate this -- it's an argument I have found open to some confusion, since sexual gratification specifically is a factor while violence comes in various forms. Considering both is important.

The various types of sexual harassment also leads me to think that there is no one size fix all solution here. If someone wrote a crude comment, e.g., it very well can be harassment. But, resignation from a public position for doing even a bad act there in 2010 doesn't mean in 2018 the person necessarily should be fired from a radio station or whatever, let's say.

We see this in crime overall -- there are lots of crimes, but a one size fits all zero tolerance policy with very strict punishments often is the best way, even for the victims in the long run.