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September|October 2003
The Practitioner By Benjamin Smith
The Real Harm By Gabrielle S. Friedman
Standard bearer By Fred Strebeigh
A Bigger Tent By Katharine Mieszkowski
Profiling's Gender Gap By Daniel Brook
Coming Out to America By Tyler Maroney
The Love Charm A Story By Eugene Volokh
Ex Offender By Robert J.
In Defense Of Prostitution By Heidi Fleiss as told to Nadya Labi
My Gay Divorce By Laurie Essig

The Real Harm

Sexual harassment law should fight discrimination, not regulate desire.

By Gabrielle S. Friedman

BACK IN THE 1970S, CAREER WOMEN KNEW HOW TO MANAGE WORK AND SEXUALITY. You kept the two spheres as separate as possible to make clear what your job was about: your ability to do the work. Women entered traditionally male fields during the decade in far greater numbers than before. June Cleaver, the fantasy stay-at-home mom of Leave It to Beaver fame, gave way to Mary Richards of The Mary Tyler Moore Show, the iconic TV feminist who, we were assured, was "gonna make it after all" in the all-male enclave of the newsroom.

Mary was not about to use sex appeal to get ahead as a television news producer, or even, to let off steam, and she certainly wasn't looking for romance at work. As viewers we may have enjoyed the good-humored tension between Mary and Lou Grant and the secret, chaste crush Murray had on his attractive coworker. But as a good '70s feminist, Mary either ignored the undercurrent or kept it in check.

But Mary Richards's TV progeny—the working women on programs like ER, Boston Public, The Practice, and NYPD Blue—have an entirely different take on sex in the workplace. Popular culture at the turn of the millennium reflects a world where sexual expression is often a routine part of the workday, from dirty jokes to discussions of one's personal life to aggressive flirting to romance. That seems to be what we expect.

Yet sexual harassment law and the workplace policies it has produced often no longer align with those expectations. Harassment law was championed by feminists (notably the legal scholar Catharine A. MacKinnon), who urged the courts to treat unwanted sexual advances toward women in the workplace as a violation of Title VII of the 1964 Civil Rights Act, the section of the statute that prohibits discrimination on the basis of sex. Today, most women still want a supervisor who demands a sexual favor to be punished, and they remain concerned about unequal pay and barriers to employment. But sexual harassment law has also led many companies to adopt broad antiharassment policies banning a range of behavior far beyond what a court would conclude reasonably constituted sexual harassment. The human resources industry drafted these draconian policies in the wake of the 1998 Supreme Court decision Burlington Industries v. Ellerth, which suggested that broadly prohibiting sexual harassment would help protect companies from liability. In an overabundance of caution, employers interpreted the decision to mean that it was safest to ban all forms of sexual expression.

When these no-sex-at-work policies are mentioned on TV dramas, they're usually described as a tool that management deploys to curtail worker freedom rather than to guarantee equality. The message that popular culture sends is that real feminists don't need this kind of "protection." As today's career women abandon Mary Richards's legacy of treating the workplace as a sex-free zone, a few legal academics are thinking about how to address sexual harassment without encouraging employers to ban sexual expression altogether.

Many scholars dismiss workplace policies as unworthy of study because they're "not real law." But in "The Sanitized Workplace," an article in the June issue of the Yale Law Journal that is the basis for a forthcoming book, Professor Vicki Schultz of Yale Law School takes these policies, and employees' everyday experiences of them, as seriously as she takes judicial doctrine and jury verdicts. Drawing on sociology and organizational psychology as well as legal theory and court decisions, Schultz explains why the law of sexual harassment that we have is not the sort of law that many workers would prefer. She argues that sexual harassment law has produced a lot of the wrong kind of litigation. While antiharassment policies may help limit employer liability, they do not effectively counter the problem they are really supposed to solve—harassment that discriminates against women.

Libertarian commentators have long wanted to rein in sexual harassment law, charging that the courts have no business micromanaging social interactions among adults at work. But it is surprising that a scholar with Schultz's feminist credentials advocates a complete overhaul. Schultz has devoted her career to practicing and teaching employment discrimination law, as a litigator in the Civil Rights Division of the Justice Department and then as a law professor. Unlike libertarians who argue that sexual harassment law is no longer necessary, Schultz doesn't want to get rid of the doctrine. She wants to radically reshape it.

Schultz agrees with libertarians that sanitizing the workplace—banishing anything that smacks of sex or intimacy—is wrong because it stifles a broad range of speech and expression. But she is more concerned about what sexual harassment law misses: the "real harm" of structural inequities, like segregated job markets, that keep women out of higher-paying employment. As Schultz puts it, "Companies can feel good about punishing individual employees for sexual offenses while doing little or nothing to address the overarching dynamics of harassment and discrimination that preserve gender hierarchy at work."

Schultz offers a striking proposal: Sexual harassment law should prod employers into hiring women at all levels of the company ladder instead of trying to drive sex out of the workplace. Sociological studies (and common sense) tell us that if men and women are present in roughly equal numbers, and both hold supervisory positions, workplace harassment is less likely to be a problem. So, according to Schultz's theory, when men greatly outnumber women in the workplace, the law should make it easier for women to prove sexual harassment. If a company has an integrated workforce, it should make it easier for the company to show that the complained-of behavior isn't discriminatory. Schultz's strategy is to shift the doctrine's emphasis from sexualized speech or conduct to sex segregation.

SCHULTZ ARGUES THAT SEXUAL HARASSMENT LAW AS WE KNOW IT is at once too broad and too narrow. She terms the law's current misguided focus on speech and conduct with explicit overtones "the sexual model," because it only sees harassment occurring if the harasser desires sex with the target of his harassment. This focus on desire isn't required by the text of Title VII; it is simply the way the courts have come to interpret the statute. In one sense, the sexual model is too broad because it chills too much speech and activity. For example, employers warn their workers that they can cross the line by telling an off-color joke, complimenting a co-worker on her appearance, or asking a co-worker out for a drink. Schultz underscores her point with the much-publicized story about a Miller Brewing Company executive who won a $26.6 million judgment after being fired for repeating the "clitoris" line from a Seinfeld episode to a female employee (and then copying the dictionary definition of the word for her after she didn't get the joke). You can almost hear the libertarians cheering Schultz on.

At the same time, the sexual model's preoccupation with sex denies justice to women subjected to abusive and career-wrecking behavior that doesn't involve explicitly sexualized speech or conduct. Imagine a lone female worker on a shop floor surrounded by male co-workers who ridicule her, ostracize her, and then put a dead rat into her lunchbox as a "prank." In that context, the abuse could easily be part of a pattern intended to force the woman out of her job because her co-workers want to keep women off their shop floor. Schultz thinks the courts should recognize that kind of intimidating yet nonsexualized behavior as the sort of discrimination on the basis of sex that Title VII is meant to address. Yet if the courts don't think that a harasser wants to sleep with his target, chances are they won't see what he's doing as sexual harassment.

Another problem with the sexual model is whose desire we're talking about. Gay or black men, who have historically been suspected of being "oversexed," may be more likely to be accused of harassment if, for example, they squeeze a co-worker's shoulder. There's a corollary problem as well: Who will courts recognize as an object of the harasser's desire? Can a gay man be sexually harassed by a putatively straight man, or by a woman? Can a woman of questionable virtue (however that is construed) be a victim of sexual harassment? How about a waitress at Hooters?

Schultz also attacks the sexual model for assuming that sexuality on the job hurts women. Instead, she says, sexual expression can be liberating. She conceives of the workplace as "a realm alive with personal intimacy, sexual energy, and 'humanness' more broadly." Whatever the job, work anchors our identity. Many of us spend more time with our co-workers than with our family members, and our relationships with colleagues are often among the closest we have. To Schultz, sexuality is an aspect of our personalities that can't be shed at the office door. "Put simply," she writes, "work can be sexy."

The sanitized workplace is the logical and undesirable sequel to a desire-based model of sexual harassment law. Whom do we have to thank for draconian anti-harassment policies? Schultz points to two unusual suspects: radical feminism and efficiency theory.

RADICAL FEMINISTS, LED BY MACKINNON, are credited with putting sexual harassment on the legal map. In Sexual Harassment of Working Women, published in 1979, MacKinnon argued that sexual harassment comes in two forms: a "quid pro quo" offer (or threat) of sex and "a hostile workplace environment," meaning a workplace made intolerable by unwanted sexual expression. (MacKinnon is the co-editor, with Reva B. Siegel, of a new book called Directions in Sexual Harassment Law, due out in December.) Schultz gives MacKinnon her due as a pioneer, but faults radical feminism for hijacking sexual harassment law and equating expressions of sexuality at work with sexism. To put MacKinnon's position crudely, in a workplace where men have all the power, we must always suspect that women do not consent to sexual behavior. This idea has influenced the courts. Federal judges may not subscribe to radical feminism, but they have been ready to ride in like white knights to protect working damsels in distress since the feminists provided the theory.

Schultz draws a parallel between the radical feminists' agenda and that of managers trying to wring the most effort out of their workforce. Management theory's first lesson: Employees should work, not flirt! Radical feminists agree. Asked in an interview whether harassment law was stifling too much sexual expression, MacKinnon answered exactly as a good management theorist might: "Somebody ought to get worried about the fact that no work is getting done."

Schultz challenges the assumptions of both camps. She assures feminists that sexual expression at work can make women feel more powerful, not less. And she tells management theorists that making room for sexual expression can increase efficiency (and profits) by making employees feel comfortable and closer to each other. Schultz offers an unorthodox defense of love at the office, citing sociological research suggesting that "workplace romance may even increase productivity in some circumstances." Anyone who has stayed late at the office to hang out with a particularly attractive co-worker on the pretense of finishing an assignment knows what she's talking about.

Whether or not most employees agree that sex at work is liberating, the idea that they shouldn't be afraid to trade adult banter or have consensual relationships probably has some appeal. But Schultz's vision of sexual harassment law calls for change on a much more dramatic, perhaps utopian, scale. She wants the law to gender-engineer, so to speak, by rewarding companies that are most evenly balanced between male and female employees and by punishing companies that are segregated by sex.

From Schultz's point of view, this approach has important advantages. It would force the courts—and employers—to recognize that in certain contexts, a dead rat in a lunchbox can constitute discrimination as invidious as the unwanted come-on. It would also shift their attention to the sort of behavior that's meant to exclude women from traditionally male jobs.

Take pornography as an example: If the porn is part of a larger pattern of intimidating women in the workplace, then it should be treated as a symptom of discrimination. But to Schultz, a pinup poster on a locker room door or a naked body on a computer screen isn't necessarily harassing. She approvingly cites a study of a magazine where male and female editors worked together on sex advice columns and nude photo spreads. In an atmosphere full of widespread sexual banter, a man sometimes did or said something that a woman found "totally inappropriate." Schultz observes, however, that the offensive behavior "didn't threaten the women, because the women had the numbers and power within the organization to marginalize these men."

Schultz's ambitious solution raises a host of questions. Faced with real cases, how would judges decide which companies deserve the easier liability rule? How realistic is it to think that employees can "forge their own workplace cultures" by incorporating as much sexual expression as they think appropriate? Considering how often Americans change jobs, many offices may lack the stable cast of characters on which Schultz's ask-the-workers model is premised.

And Schultz's grassroots approach could mean accepting majority rule about what constitutes acceptable sexual expression. In an office dominated by religious conservatives, for example, should prudery and homophobia reign? We may be stuck with office policies dictated by human resource bureaucracies because it would simply be too chaotic to treat the workplace as a democracy.

Some feminists may be suspicious of the changes Schultz proposes as well. They value Title VII for expressing society's tough condemnation of sexual harassment. If the courts ease the liability rules for certain workplaces, as Schultz suggests they should, then that condemnation might be diluted. Some feminists may also worry that Schultz's emphasis on discrimination would make it difficult for the law to recognize a woman's harassment of another woman or a man's of another man. If the baseline question is whether harassing behavior keeps its targets out of good jobs based on their sex, is it harassment if a white, heterosexual female employee ostracizes, taunts, and places a dead rat in the lunchbox of a co-worker who is also white, straight, and female? Can Schultz's theory encompass those weird forms of male-on-male taunting that, on some gut level, we think must be sexual—like goosing, in which straight, macho blue-collar workers grab the testicles of the new fellow on the construction site?

Then there are the libertarian skeptics. By broadening the law's focus from sexually explicit speech or behavior, they would ask, what kind of etiquette code is Schultz inviting? While she argues that taking the emphasis off sex will let workers breathe more freely, it's possible that an even wider range of office interactions would become suspect.

LIKE SCHULTZ, ROSA EHRENREICH BROOKS, a law professor at the University of Virginia, thinks that courts are too preoccupied with desire and that their myopia subverts Title VII's goal of fighting discrimination. But Brooks goes beyond Schultz by proposing that the law should recognize and punish workplace harassment that is "humiliating, intimidating, tormenting, pressuring, or mocking"—even if it does not discriminate based on sex. Anyone ought to be able to bring a harassment claim for such bad behavior because everyone has a "general right to be free of severe dignitary harm in the workplace." Brooks is not talking about infrequent lapses of good manners. She would make employers responsible for patterns of abuse that occur repeatedly over a period of time, like excluding someone from workplace functions, publicly berating them, or otherwise singling them out for ridicule. In other words, she's worried about serious and persistent nastiness.

Brooks wants to keep and strengthen Title VII. But she sees a disconnect between what the law says is the harm of harassment—discrimination based on sex—and what victims feel is its harm—the sheer indignity of being treated in a fashion that diminishes your legitimacy as a co-worker and disrespects you. When someone is mistreated at work because of her sex, she may intellectually understand that she is experiencing discrimination, but on a gut level she's probably just plain insulted—and Title VII doesn't capture that sense of outrage.

Brooks thus proposes that we turn back to the common law of torts so beloved by the personal injury bar. Those torts include assault and battery (for unwanted touching), false imprisonment (for forcing someone to stay in a room and be subjected to offensive behavior), intentional infliction of emotional distress (for extreme and outrageous conduct that causes someone severe psychological distress), and defamation (for destroying someone's reputation). But in the common law, you usually have a case only against the person who harmed you. Brooks, by contrast, thinks that if the mistreatment is persistent enough to affect the victim's conditions of employment, a harassed worker should be able to hold his or her employer liable. "The changing social meaning of work," she writes, "should be deemed to create special duties for employers in protecting all workers from workplace harassment, sexual and nonsexual."

This dignitary model of workplace harassment is in place in Western Europe, where the courts rely on precisely the kinds of torts that Brooks envisions to regulate workplace interactions. On the continent, there is a popular theory of workplace harassment called "mobbing" or "bullying." It considers sexual harassment to be a subset of a wide range of abusive behavior that is harmful because it is demeaning.

Mobbing, known in Germany as "psychoterror at work," includes ostracizing someone from office activities, haranguing the person verbally, making repeated rude telephone calls or sending similar e-mails, spreading rumors, "accidentally" spilling hot coffee on him or her, and giving unwarranted negative job evaluations. The crucial point in a mobbing case is not to prove that the victim was discriminated against on the basis of sex—or anything else. It is to prove that the pattern of abuse denied the victim his or her right to a decent workplace. The victim's employer is considered responsible because of the long-standing continental tradition of imposing on employers a "duty of care," the obligation to provide a workplace where employees can labor with dignity. Brooks wants to bring the same duty into American law.

Mobbing is a fairly recent phenomenon in Europe. It originated not in law but in organizational psychology, which is concerned with the emotional distress caused by abusive environments. At the same time that mobbing theorists began popularizing the cause of dignity for all workers, European feminists were championing discrimination laws inspired by Title VII that specifically target the sexual harassment of women. Mobbing appears to have won out over antidiscrimination law on the continent. And that is not really surprising. Instead of dealing with abstractions like gender hierarchy or structural job market inequities, mobbing focuses on personality clashes. It appeals to our innate sense that there are certain things civilized people do not tolerate.

What implications does the rise of mobbing theory have for American feminists trying to develop a model of sexual harassment that doesn't just focus on sexual desire? Brooks might embrace mobbing law for making harassment claims widely available. Schultz, for her part, might value the mobbing concept for offering some guidance about how to recognize and document workplace abuse. For example, mobbing theorists recommend that workers who think they are being abused keep a diary over a six-month period to keep track of each insulting incident.

But there's a downside here as well, one to which Schultz would be particularly sensitive. Mobbing seems to have drowned out the law of sexual harassment in Europe, and in some ways it's astoundingly conservative in practice, seemingly helping to maintain traditional hierarchies. In Germany, anecdotal evidence suggests that men—many of them middle managers—are more likely than women to bring mobbing complaints to their firm's grievance resolution boards. (Because Europeans are less litigious than Americans, cases rarely go to court and are usually resolved in-house.)

If the United States moves in Europe's direction and turns sexual harassment law from a doctrine designed to prevent discrimination into a doctrine designed to prevent harms to dignity, we'll lose the law's clear, strong stance against discrimination based on sex. We could end up with antiharassment policies that are broader and more intrusive than the ones we have now. Americans are willing—as they should be—to tolerate a certain amount of rough-and-tumble in the workplace. We should only use the law to go after insulting behavior if that behavior also discriminates on the basis of sex.

Gabrielle S. Friedman is the author, with James Q. Whitman, of "The European Transformation of Harassment Law: Discrimination Versus Dignity," published in the Columbia Journal of European Law. She is currently clerking for a federal judge in Manhattan.

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