Desire or Dominance?: Sexual Harassment’s Legal Maze

It seems so long ago, but it was only in the fall that the New York Times ran an explosive piece on the sexual exploits of film producer Harvey Weinstein. The Times reported serious accusations, from multiple sources, of sexual abuses spanning several decades. The public was rightly shocked, and in the days and weeks after that October article, the indignation spilled over into a grassroots movement, #MeToo, which engaged millions in a nationwide hunt for sexual predators. Several high profile men were implicated, including Olympic gymnastics-team physician Larry Nassar, actor Kevin Spacey, news anchor Matt Lauer, and New York Attorney General Eric Schneiderman.

More shocking even than the offenses themselves was the fact that they had in some cases continued for years, even when perpetrators were very much in the public eye. These weren’t the sorts of predators who lived in basements, covering walls with photos of would-be victims. They were the sorts of people one would expect to see on the social circuit, or wheeling luggage through the lounges of high-end hotels. Their lengthy history of abuse surely implied quiet complicity on the part of people around them who should have noticed and been willing to object.

The #MeToo movement had an effect reminiscent of Kitty Genovese’s murder in New York City in 1964. It threw the nation into a paroxysm of soul-searching and self-doubt. What kind of society had we made for ourselves, where such turpitude could flourish right under our noses? Why were victims so afraid to come forward and ask for help? A confessional mood fell over the nation, and for the better part of a year, thousands of women have been stepping forward with stories of bosses or coworkers who pinched or groped them, called them crude names, or even exposed themselves in office settings.

The Previous Cycles

It felt like a pivotal moment. But America has seen such moments before, when prominent cases gave rise to public consternation, further accusations, and demands for serious reform. Carmita Wood’s sexual-harassment lawsuit against Cornell University in 1975 inspired “speak-outs,” think pieces, and cries for change. In 1986, hopes were raised after the Supreme Court’s ruling in favor of Mechelle Vinson, which established that employers could be sued for creating a “hostile work environment” through an extended pattern of harassment. Anita Hill’s lawsuit against Clarence Thomas six years after that brought feminists together once again, in yet another show of womanly solidarity. That was followed, once again, by a renewed zeal and reminders of the importance of supporting victims, followed, in turn, by a nationwide wave of harassment allegations.

It’s not hard to find patterns here. When a case grabs the headlines, women who feel sexually harassed or exploited in their workplace are more likely to come forward to tell their stories. Then come the soul-searching, the messaging campaigns urging us to believe the victims, and then the counter-pressure warning us to be wary of witch hunts. As in previous episodes, #MeToo has reminded us that a significant number of women feel uncomfortable or harassed at work. If there is anything really novel about it, it’s mainly the implication that even after so much time and so many aggressive reform efforts, this problem still has not gone away. Almost 40 years after Carmita Woods, sexual harassment continues to be a live issue in America, despite numerous attempts to address it in law and in company policy.

Hard-Left feminists predictably seize on these episodes as an opportunity to reenergize their sympathizers, assiduously working to liberate women from the oppressive grip of the patriarchy. More skeptical citizens may find themselves contemplating a slightly different set of questions: How bad is the harassment problem really, and why do these incidents recur? Are working women really being exploited in large numbers, or might the majority of the harassment complaints arise from less serious cases of rudeness or indiscretion? What other cultural factors might be feeding into the anxiety and sense of grievance surrounding #MeToo? Perhaps most importantly: Are there better ways to address these problems that we haven’t yet tried?

Problems with the Discrimination Framework

In this essay, I will argue that that sexual harassment continues to be a problem in part because our framework for addressing it is inadequate.

Sexual attraction, by its nature, involves a type of “discrimination,” which in its broadest meaning denotes choice. We aren’t sexually attracted to everyone; sex, age, physical appearance, and other personal characteristics all typically enter into the equation. Ordinarily, we don’t consider that type of discrimination to be unjust. Discrimination becomes unjust when distinctions are drawn inappropriately, as for instance when a highly accomplished employee is denied a promotion that other, equally qualified employees have all received, simply in light of his religion or ethnicity.

A distinction is being treated as relevant when it really should not be, and therein lies the injustice.

For decades, we have classified sexual harassment (in law, but also to a great extent in culture and company policy) as a species of unjust discrimination, which needs to be stopped insofar as it infringes on our society’s commitment to equal opportunities in employment. This was the paradigm promoted by Second Wave feminists, which (as I will soon explain) provided the theoretical backbone for sexual harassment legislation in the U.S. Congress.

Sexual harassment might, in some instances, stem from a kind of sexism that could reasonably be classified as unjust discrimination. Certainly harassment could hurt a working woman’s career (especially if she were forced to choose between her integrity and her job). It’s also reasonable to suppose that men will feel more at liberty to harass women if they have sexist or degrading views of the female sex. Does this really get us to the heart of the problem, though?

When a man harasses or exploits a woman sexually, he is not drawing inappropriate distinctions. He is drawing appropriate distinctions, but responding to them in an inappropriate way. Our laws and policies haven’t given us adequate tools for managing real differences between the sexes prudently, and this, I will contend, is a significant reason why sexual harassment has continued to be a pervasive problem.

The Legal History

Whenever sexual harassment cases spill over from the office into a court of law, we turn to a body of legislation that was constructed over the past half-century, with a particularly significant series of legal developments occurring through the 1980s and 1990s. In 1980, the Equal Employment Opportunity Commission ruled that sexual harassment was a form of discrimination that fell under Title VII of the Civil Rights Act. The Supreme Court affirmed this in 1986 with Meritor Savings Bank v. Vinson. In 1991, a reauthorization of the Civil Rights Act specified, among other things, that harassment victims were entitled to punitive and/or compensatory damages. The Violence Against Women Act of 1994 limited the extent to which unflattering biographical information could be used to discredit plaintiffs in sexual harassment cases. In 1998, two more Supreme Court rulings made clear that employers could in some instances be held liable for sexual harassment perpetrated by their employees.

All of these changes, broadly speaking, were enacted under the umbrella of “equal opportunity.” When sexual misconduct meets labor law in the context of a civil court, the question at hand is: Was the plaintiff a victim of unjust discrimination? Particularly in the wake of the Civil Rights movement, this was the prevailing paradigm for dealing with labor concerns raised by particular (ostensibly disadvantaged) groups.

Addressing harassment in this way may seem odd, and it was certainly controversial at the time. There was considerable legal debate in the 1970s over the question of what really qualified as “discrimination on the basis of sex.” It’s a difficult issue, for two main reasons.

First, sex is almost never the only relevant detail in a given case. For example, if an employer fired a woman right after she revealed that she was pregnant, her sex would not be the only relevant factor. At the same time, it’s not a problem a man would ever have.

Second, there might be times when it’s fair and reasonable to take group membership into account. For example, if a cross-dressing man were fired from his job at a concierge desk, it would be clear that his employer was drawing distinctions on the basis of sex. But one might argue that it’s reasonable to do that, given a service professional’s obligation to make a certain kind of impression on patrons. This does look like a kind of discrimination, but it isn’t clearly unjust.

Many of these debates centered around questions of sex and normativity. What behaviors could reasonably be seen as normative for a particular sex, and which sex-specific circumstances (like pregnancy) should be protected? Sexual harassment, in contrast, involved more than one person’s behavior, and nearly everyone agreed that it was bad, even if it was also true that not all bad behavior should be addressed in a court of law. Given that anti-discrimination labor reforms were among the hot legal topics of the day, feminists saw an opportunity to win stronger protections for women in oppressive work situations. They just needed to make the case that harassment was indeed a form of discrimination that could properly be regulated under the Civil Rights Act. University of Michigan law professor Catherine MacKinnon and journalist Lin Farley were among those who dedicated great energy to this question in the 1970s, and MacKinnon’s Sexual Harassment of Working Women (1979) was a landmark work in this genre.

For MacKinnon, explaining harassment in these terms was not difficult; indeed, it was perfectly intuitive. In her eyes, harassment was indeed a form of discrimination; it was of a piece with the systemic efforts of a patriarchal hierarchy to keep women in a disadvantaged social position. Men in positions of authority felt free to harass women because they felt entitled to use and subordinate women. Reinforcing male superiority was the real point. As MacKinnon put it,

Sexual assault as experienced during sexual harassment seems less than an ordinary act of sexual desire directed toward the wrong person than an expression of dominance laced with impersonal contempt, the habit of getting what one wants, and the perception (usually accurate) that the situation can be safely exploited in this way—all expressed sexually. It is dominance eroticized.

With this argument, MacKinnon moved sexual attraction to the back burner and put power relations foremost. If we suppose that a man who gropes a female colleague in an elevator is demonstrating a lack of impulse-control, his actions, while reprehensible, don’t clearly qualify as discrimination. But if his behavior reflects and reinforces an established pattern of male dominance, that does start to look like discrimination, which can be regulated accordingly under Title VII.

Sex is so fundamental to human interactions, though, that it’s unrealistic to expect that it could be bracketed entirely.

This argument ultimately won the day. Courts in the 1980s and 1990s became increasingly willing to view sexual harassment as a form of unjust discrimination. Correspondingly, courts became less willing to dismiss cases of discrimination as representing a fair or reasonable discernment of difference. The central goal was apparently achieved: Women in exploitative situations had legal recourse.

Meanwhile . . .  as feminists were celebrating their victories over the patriarchy, Weinstein was inviting young women to his hotel room so he could expose himself to them.

Public Feminist, Private Creep

The events of the past year have clarified this at least: It’s perfectly possible for a man to be a card-carrying feminist and also an exploitative jerk. Weinstein (a great friend of Hillary Clinton’s) marched in women’s rights parades and helped to endow a university chair in honor of Gloria Steinem. Former New York Attorney General Schneiderman was fully supportive of the feminist political agenda—and in fact showed tremendous interest in bringing Weinstein to justice. Support for legal abortion was a commonplace among credibly accused men.

This irony should trouble believers in MacKinnon’s theory about sexual harassment as “dominance eroticized.” Why is it so easy for a man to spend his days helping to bury the patriarchy, and his nights abusing women? Quite possibly, these men’s political views were opportunistic and insincere; but it’s still telling that hard-Left feminists seemed unable to distinguish a true ally from a sexual predator. If, as MacKinnon argued, harassment is deeply connected to a pattern of patriarchal oppression, we wouldn’t expect to see such serious abuses from multiple men who were able to integrate smoothly into feminist social circles and even activist organizations.

That might lead us to consider another possibility. What if the Second Wave feminists (mid-century reformers who lobbied for a broader range of opportunities and protections for women beyond the right to vote) were simply wrong to subsume harassment under their larger theory of systemic injustice? Perhaps sexual misbehavior really is more properly seen as an inappropriate expression of sexual desire, not as “dominance eroticized.” If that were the case, then harassment would still involve an act of discrimination, but the discrimination wouldn’t be the problem per se. It’s not wrong to be attracted exclusively to the opposite sex. What matters is how one acts on that feeling of attraction. It’s perfectly possible for a man to view women in general as social equals, but still behave badly toward specific women.

Second Wave feminism has always had a blind spot when it comes to sexual difference needing to be acknowledged and managed in some circumstances, as opposed to eliminating it altogether. The Second Wave feminists famously found it difficult to draw principled distinctions between marriage and obviously exploitative sexual relationships such as prostitution. All were condemned as arrangements by which women exchanged sexual favors for material support. (As Second Wave activist Andrea Dworkin once explained, “Marriage as an institution developed from rape as a practice.”)

By a similar token, their zeal to eliminate sexism may have blinded them to natural and perennial truths about negative relationships between men and women. These can and will arise in virtually any social climate, no matter how much is done to afford equal status to the sexes.

Perhaps the overreaching was understandable given feminist zeal to enhance professional opportunities for women. It does seem appropriate to pursue gender equality in the workplace, where we generally want to downplay the relevance of sexual difference. We typically don’t want men’s work and women’s to be evaluated by separate, sex-linked standards. Nor do companies, to look at it from their perspective, have much interest in encouraging their employees to regard one another as eligible romantic prospects. Employers have reason—just as do feminists or anyone appalled by what Weinstein and the rest did—to want to unsex the workforce.

Sex Distinctions in Healthy Romance

Sex is so fundamental to human interactions, though, that it’s unrealistic to expect that it could be bracketed entirely. Sexual tension will remain a possible complication in office dynamics, especially given the complex nature of work in our time. We can’t all expect to interact with colleagues in the safety of well-lighted cubicles. People often have occasion to travel with colleagues, or to coordinate efforts with them at odd hours under emotionally stressful circumstances. Sometimes it is necessary to keep work-related secrets between colleagues that can’t be shared with family members. Work colleagues may depend on one another in risky or even life-threatening circumstances.

Insofar as men and women now work side by side in most professions, there are many possible ways in which sexual tension may put people in awkward or even degrading situations. Unfortunately, some people (usually men) are going to deliberately use this to press their advantage; but even a person of honorable intentions could inadvertently cause discomfort to others just by failing to handle an awkward scenario with tact and consideration.

It’s also worth noting that work-related romance isn’t always a problem. Old movies are filled with romantic tales of powerful men who fall in love with their female employees, court them honorably, and eventually marry them. Recall Captain Georg von Trapp in The Sound of Music. He engages in a kind of sex discrimination when he falls for Maria Rainer, his children’s nanny. Should we view von Trapp as just a slightly-more-monogamous Weinstein? Obviously, that would be absurd. Old musicals aren’t necessarily a good guide to real life, but statistics suggest that this one may really be. About 16 percent of Americans say they met their spouse at work, which isn’t particularly surprising given the centrality of work to the lives of many young people.

The Search for Realistic Reforms

If we acknowledge that sexual attraction is an ineliminable, and sometimes even desirable, aspect of work culture, we’ll also need to accept that abuses are and will be a possibility. We cannot simply eliminate them through an ever-more-ardent commitment to “equal employment.” Instead of viewing everything through the lens of unjust discrimination, we should be open to considering more pragmatic strategies that might reduce the risks. Some religious organizations have “open door” policies, specifying that an office door should be left open when a man and a woman are meeting together. Some companies, such as Facebook, are now experimenting with “ask once” policies, which specify that an employee may ask a coworker out on a date, but if rejected, may not repeat the offer. Vice President Mike Pence generated heated controversy a year ago when his personal rules of workplace propriety (especially including an unwillingness to dine alone with women) were broadly publicized.

All of these strategies could be criticized on various grounds. They might not be effective, and they might disadvantage employees of one or the other sex. In the interests of fairness, we should look for reasonable ways to minimize those harms, ensuring (for instance) that both sexes have significant opportunities to network, to enjoy the benefits of mentorship, or to take professionally advantageous business trips. We shouldn’t trivialize women’s concern that policies ostensibly created for the sake of propriety (like the “Pence rules”) could work to their professional disadvantage. That’s certainly possible. But if we truly wish to protect women from sexual abuse (and also protect men from abuse and from false accusations), a certain amount of pragmatic thinking will surely be necessary.

The #MeToo movement has forced us to reflect on how little has changed across several decades of attempted reform. Will we be seeing yet another #MeToo 10 or 15 years hence? If we wish to avoid that, we should look for solutions that are less ideological, and more realistic.