We know that sexual harassment law has advanced workers’ rights, especially for women.
But what has it done — and not done — to move the needle for women? How is it enabling those writing the rules to keep themselves in power to cling onto the status quo?
Let’s look to Yale Law School’s Reva B. Siegel’s short history of sexual harassment from her 2003 book Directions in Sexual Harassment Law to get a sense of what work was like before the Supreme Court interpreted Title VII of the Civil Rights Act of 1964 to include sexual harassment as discrimination based on sex in the late 1980s. With each step, we’ll look at how the history gives us insights for the need for general workplace anti-abuse legislation, the Workplace Psychological Safety Act. Workplace abuse has a discriminatory impact on women, non-white workers, and low-wage workers.
The History of Sexual Harassment
The Supreme Court’s interpretation of sexual harassment as discrimination based on sex marked the first time women could fight a centuries-old practice through law.
- Some blamed women themselves because they were stereotyped as promiscuous by nature. (Rape was punishable by law for free women, but the definition of rape required consistent physical resistance to not be considered consensual. So most free women had little reason to expect consequences for offenders and only consequences for themselves for speaking up, including damage to reputation and prospects for marriage. Common law eventually helped, but only in terms of inflicting damage on a man’s property. So a man could sue another man who raped his slave or an employer who impregnated his daughter.)
- Others condemned men for sexually abusing the women who worked for them with slavery, particularly in the abolitionist press, and domestic service. Household service and degradation to women become synonymous. Some considered factories in the garment industry and meat-packing industry to operate on “wage slavery,” exhausting labor and restricting freedom and leaving women on the verge of starvation and dependent on the whim of men. The sexual injury of women meant their devaluation and objectification as servants to men. But changes in the law meant an economic loss to men.
- Gender and class restrictions that drove Vaughn to domestic service
- Economic dependency that created sexual vulnerability
Takeaway for the Workplace Psychological Safety Act: We must look at how race, gender, and class influence our access to opportunity and our economic freedom.
Takeaway for the Workplace Psychological Safety Act: As rape law was inadequate to protect women from sexual coercion, antidiscrimination law is inadequate to protect women , non-white workers, and low-wage workers.
Takeaway for the Workplace Psychological Safety Act: We can re-characterize status-blind mistreatment as legal discrimination.
- The system did not include power differentials based on sex.
- Discrimination required sorting all employees into two sex groups before determining discrimination on the basis of sex. If advances were refused, then sex is not the sole ground of distinction. There is additional criterion in selection. (This reasoning extended to pregnancy discrimination. Plaintiffs would have to show the practice affected all members of their group, not just their additional criterion, or “sex-plus,” group. Examples of sex-plus: AND denied sexual advances or AND pregnancy.)
Takeaway for the Workplace Psychological Safety Act: General abuse of power has a discriminatory impact on non-privileged groups (women, non-white workers, and low-wage workers). White men continue to hold the majority of power positions in the US workforce nearly 60 years after Title VII of the Civil Rights Act of 1964.
- Sexual attention and anecdotes
- Non-sexual insults, gossip, and jokes to denigrate, hurt, embarrass, show contempt for unfeminine or deviant behavior, put women in their place, punish women for invading their territory, exclude from women their boys’ club, deprive of authority, or undermine women’s competence.
- 1986: Meritor Savings Bank v. Vinson. The classic sexual harassment scenario involving gendered work roles. A bank teller complained that shortly after she was hired, her supervisor invited her out to dinner and then “suggested that they go to a motel to have sexual relations”; after resisting, she surrendered. The Supreme Court affirmed that sexual harassment involving a hostile work environment is actionable under Title VII.
- 1993: Harris v. Forklift Systems. The “new” sexual harassment scenario involving non-gendered work role conventions. A higher-up of a company that rented equipment to construction companies continually made a woman manager the target of such comments as, “You’re a woman. What do you know?,” “We need a man as the rental manager,” and called her “a dumb ass woman.” “In front of others, he suggested that the two of them ‘go to the Holiday Inn to negotiate [Harris’ ] raise.’ … Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket …. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up …. He made sexual innuendos about Harris’ and other women’s clothing.” The behavior is humiliation tactics to address his own anxiety about a threat to his male authority. The Supreme Court decided that Title VII workplace-harassment suits need not prove psychological injury.
Takeaway for the Workplace Psychological Safety Act: The courts have already decided that a hostile work environment and the absence of psychological injury should be actionable, but only within the realm of sexual harassment. Yet anyone who does not fit the while male norm is subject to abuse of power at work, and we need to address these inequalities.
We must do more to address the system men designed to control women. We must consider the larger social power dynamics and look at how behavior, not intent, serves to remind women of their proper place in matters of work and sex: at the bottom.
The sex angle and harassment angle cannot be separated, and we must focus on the impact to the work environment with attention to context in our social history.
Our current approach to sexual harassment still leaves us with these questions:
- When supervisors, including women supervisors, engage in harassing behaviors that are non-sexual but still perpetuate toxic masculinity, why should targets not have legal recourse if the harms are the same as with illegal discrimination?
- Why should intent matter when the impact is damaging according to a reasonable person?
The Workplace Psychological Safety Act addresses these questions.