and generalizations;” “uncovering implicit bias in neutral legal standards;” and “placing high value on women’s experience.”30
Part of the struggle for gender-based justice involves contextual reasoning—providing evidence from the lives of real women. As campaigns against rape and domestic violence have demonstrated, women’s collective experience with abuses based on male power can also shape the laws against sexual ←11 | 12→harassment. The current #MeToo and Time’s Up movements are ongoing examples of the strength of sharing incidents. Likewise, consciousness raising, which is also manifested in the contemporary movements, provides support to individuals and reveals the power of numbers across regions and social classes.
Because it is a manifestation of power and domination in the workplace, sexual harassment is not only a matter of individual injury but a form of group-based discrimination that reinforces women’s subordinate status. Not all women are affected in the same way by male power, but no women are unaffected by it. Not all women are the same, but “all are treated as women under male supremacy.”31 Thus seeing sexual harassment as simply the bad behavior of individuals obscures its roots in the identification of women as a group who have been and who remain marginalized. As Carrie Baker states, sexual harassment as a system of social control, male dominance, and patriarchy does not consist of isolated acts but is “consistent, systematic, and pervasive.”32 Sexual inequality plus material inequality add up to cumulative injuries that affect women as a group.33 Women may be injured one by one but the discrimination that occurs is not based on individual qualities. Just as racial discrimination grows out of assumptions about African-Americans or Hispanics as a group, sexual harassment emerges from assumptions about women as a group. The absence of treatment based on individual qualities, MacKinnon contends, is the essence of discrimination. She sees much of sexual harassment “enforced by unconscious, heedless, patronizing, well-intentioned, or profit-motivated acts.” But such behaviors are “no less denigrating, damaging, or sex-specific for their lack of invidious sex-based motivation.”34 Unwelcome sex talk or unwelcome sex acts (the mainstays of sexual harassment) exclude, segregate, subordinate, dehumanize, violate the human dignity of their targets, and deny them equality of opportunity.35 As Dorothy Roberts argues, such harms are collective. They affect the status of all women in the workplace, in the labor market, and in society. They constitute a social harm and a social injury. Why? Because other women will see themselves as potential targets. Because sexual harassment helps maintain women in subordinate positions and because it disrespects women as a group and treats them as inferiors.36 If sexual harassment claims can be viewed not as allegations by mere individuals but by individuals who are members of a group (women), the parties are not just “bad men and virtuous women but dominating men and subordinated women.” The activity is not just bad behavior but part of a “social system of gendered group-based inequality that produces injuries of second class citizenship.”37 Thus the laws prohibiting sexual harassment are ←12 | 13→not simply restrictions on personal conduct. They are elements in the structure of anti-discrimination law designed to facilitate the promise of equality in the workplace and in the larger social context.
MacKinnon developed the argument that sexual harassment is a violation of Title VII of the Civil Rights Act of 1964 that prohibits discrimination in the terms and conditions of employment on the basis of sex. She based this claim on the reasoning that discrimination is really about dominance and subordination and that sexual harassment imposes such inequality. She wrote that “conditioning economic survival on sexual submission is as invidious a practice of discrimination as any other. Its effect on the equal treatment of individuals at work without regard to sex is as destructive as any other.” The discrimination was a fact whether the harassment took the form of demanding sexual favors in exchange for job consideration (quid pro quo) or when the atmosphere in the workplace was permeated with sexual denigration (hostile environment).38 Achieving sex equality through law has required “unconventional and unprecedented approaches and arguments.”39 Sexual harassment law is an example of this unconventional and unprecedented thinking. It is, in fact, the first legal wrong actually defined by the victims, women. Rejecting the theory that sexual harassment was individual behavior with psychological and biological roots, the women who created the legal definition saw it as a manifestation of asymmetrical power and cultural stereotypes. Feminist legal thinkers exposed the idea that the sexual objectification, which is a basic element of sexual harassment, is a central dynamic of gender inequality, that it is systematic and harmful, and therefore illegal. Although a male harasser might argue that no harm occurs if none is meant, the victim of harassment would see things differently. Feminists were the first legal theorists to regard women’s point of view as serious and definitive and to interpret anti-discrimination law accordingly.40
As later chapters of this book will discuss, it was a struggle to get legal remedies for sexual harassment accepted by the courts. Just as with rape cases, men often did not agree that they had done something wrong. Women were complaining about activity that was not really different from regular male behavior—some men just happened to get caught.41 But with rape and sexual assault, women were dealing with laws that had been made by men and that men had been able to interpret for centuries. With sexual harassment, for the first time, women wrote the definition of the injury.
Congress has never legislated specifically against sexual harassment or described terms of liability by employers. It has been the courts that have ←13 | 14→articulated the laws against sexual harassment. Judges have been the ones to distinguish between boorish personal behavior and discrimination, to consider power imbalances not just individual malfeasance.42 Thus women and their advocates arguing in courts have been responsible for transforming a “moral foible into a legal injury to equality rights.” The issue of sexual harassment now involves human rights, equality claims, and sanctions by the state. No longer is it—nor should it be—a private matter. Courts should be asking “Is this unequal treatment?” not “Is this bad?”43 But there is a danger if the meaning of sexual harassment is left in the hands of courts. As MacKinnon warns, women must “keep control over our own outrage and the definition of our own injuries and never allow the courts to tell us what constitutes our oppression.”44
However, women have not always been the ones to decide what constitutes their oppression. As the later chapter on the Supreme Court’s rulings will show, the justices have not necessarily agreed with feminist legal analysts about responsibility for sexual harassment, although they have found it to be a violation of the Civil Rights Act. Nor has Congress believed in the truthfulness of women who claim to be victims of sexual harassment, as the case of Anita Hill demonstrated most vividly. Members of Congress have been casual and inconsistent in disciplining their own colleagues who engage in harassing behavior. Other patriarchal institutions such as universities and the military have also been erratic in their responses to harassment. But there is a case to be made that the issues resonate differently now. Some have argued that inspired by the election of Donald Trump—someone who could brag about sexual assault and still win the presidency—women have insisted through
