Throughout 2017, revelations of alleged sexual harassment perpetrated by Harvey Weinstein, Matt Lauer, Charlie Rose, Mark Halperin, Glenn Thrush, and what seems like countless others have exposed what many women already knew: Men with power use it to intimidate women, boost or derail those women’s careers, and satisfy their own enormous egos.
But lost in the titillating stories of naked old men like Rose prancing around under open bathrobes in front of 30-somethings and door locks that can be triggered from an office desk is the full definition of sexual harassment. When sexual harassment occurs in the workplace, it’s not just demeaning. It is a form of discrimination that is outlawed by the 1964 Civil Rights Act. This is the same law that protects—or is supposed to protect—minorities of all kinds from being treated unfairly and unequally.
Sexual harassment is, like paying lower wages and blocking career advancement, a way to perpetuate economic inequality, no different from discrimination on the basis of race, religion, color, or national origin. It is the product of a mindset among those in power that women are less valuable than men, that they are mainly valued for their physical attributes, their ability to produce children and not their accomplishments at work.
It is a way for powerful men—and sometimes women—to bully women into understanding that their thoughts, intellect, analytical abilities, and workplace accomplishments are not valued and, that, instead, women can only advance by giving in to the needs and whims of the men in charge. And it comes in many forms, from the subtle comment about your legs when you’re trying to present a new idea, to jokes about hand jobs, to, as Matt Lauer allegedly did, locking you in the office and demanding sex. It is ultimately about a pervasive lack of respect.
It’s not sex, it’s discrimination
The legal theory of sexual harassment as workplace discrimination was developed in the 1970s by Catharine MacKinnon, a Yale-educated lawyer, who wrote the seminal Sexual Harassment of Working Women, which argued for the first time that sexual harassment at work was a form of discrimination. It came in two varieties: quid pro quo, in which women are forced to exchange sexual compliance for a work opportunity, and “hostile environment,” in which harassment is a persistent aspect of work life. It was not until the 1986 Supreme Court ruling in Meritor Savings Bank v. Vinson that the latter form of harassment was outlawed as a form of discrimination.
But proving a hostile environment is very difficult, and courts have struggled with it ever since. Under the law, harassment has to be “pervasive” or “severe” to rise to the level of discrimination. Proving such squishy ideas is extremely difficult and many women fail. In a 2007 Nova Law Review article, MacKinnon, now 71, pointed out that none of the conduct described below was deemed actionable by the courts:
supervisor stroking a plaintiff’s leg on one occasion, grabbing her buttocks on a separate occasion, telling her he found her attractive, twice asking her out on dates;
calling a subordinate a “dumb blonde,” placing “I love you signs” in the work area, asking her for dates, putting his hand on her shoulder and attempting to kiss her;
making inappropriate sexual remarks, kissing the plaintiff repeatedly, touching the plaintiff and chasing her around a forest reserve;
employee attempting to kiss plaintiff, making lewd remarks about her appearance, following her around the office, giving unsolicited neck rubs, hand holding;
supervisor asking plaintiff about her interest in a romantic relationship, for a kiss, staring at her, and following her around;
supervisor touching plaintiff’s breast and hair, kicking her in the buttocks, and making lewd remarks directed specifically at her
It’s no wonder, then, that Donald Trump and his lawyers deny many of the allegations against him, few of which rise to the level needed to show harassment. To win in Meritor, the plaintiff, a black woman named Mechelle Vinson (paywall), had to allege that two and a half years of forced systematic sex, including rape, by her supervisor was a requirement to keep her job. The supervisor denied her allegations, saying any sex between them was consensual because, most times, she did not resist.
Thus, many of the women now coming forward aren’t suing anyone. Most instead resort to a kind of employee/employer blackmail, holding up the employer, or the perpetrator, for a settlement that, in return for a bit of money, requires them to shut up about the abuse and also leave their jobs. An entire infrastructure of employment lawyers has sprung up to specialize in such negotiations. The amount of money won—except perhaps for the $32 million one woman reportedly got from Fox News’ Bill O’Reilly—does not compensate for a lifetime of lost career opportunity and earnings. And it does nothing for the ability of women as a group to advance in the workplace; it just covers up the problem.
Many companies have so far responded by treating the symptom, not the cause. NBC, whose News president Andy Lack was instrumental in the acceleration of 75-year-old Charlie Rose’s career while running Bloomberg Television with David Rhodes, now head of CBS News, reacted to the revelations about Lauer, not by promoting and boosting pay of its female employees, but by policing romantic relationships in the office.
According to Page Six, NBC has issued guidelines on, among other things, hugging: “If you wish to hug a colleague, you have to do a quick hug, then an immediate release, and step away to avoid body contact.” This smacks of dated thinking from the 1980s; it does nothing to address inequality in the workplace.
A November story in Barron’s (paywall) is equally enlightening of corporate America’s plan to put a Band-Aid on the problem. According to a search of 67,500 corporate filings by Sentieo, a financial research organization, at Barron’s request, only 166 10-K filings mentioned sexual harassment as a risk factor, when Sentieo searched for the terms “gender,” “harassment,” and “discrimination.” A survey of 600 mostly female board members last August showed that 77% of boards had not discussed sexually inappropriate behavior and only 8% had talked about the risks of a company culture that encourages drinking and partying at work.
“Institutions are often reluctant to take responsibility and are often absolved of liability—particularly when they can say that they were oblivious to what was going on, which is astonishing. See no evil, hear no evil, incur no liability. This encourages not knowing what is happening in one’s own shop,” wrote McKinnon in her 2007 article.
After more than four decades of activism, American women are still paid 80% that of men, only 5.2% of CEOs of S&P 500 companies are women, and women hold only 20% of board seats. If companies truly want to eliminate sexual harassment they need to stop treating women as foreign objects. The cause of sexual harassment isn’t poor policing of social norms, it’s the lack of regard for female capability.
Back to #MeToo
So far, the current movement, as expressed in the media, is focused on uncovering still more revelations of inappropriate behavior. A Reuters poll published on Dec. 27 suggests there isn’t a consensus among Americans on what they believe constitutes sexual harassment. While 41% of adults said it’s when someone tells you “dirty jokes,” 44% said that doesn’t qualify. Similarly, while 44% of adults said that nonconsensual hugging was sexual harassment, 40% said it was not.
Most disturbingly, according to Reuters, only 83% of millennials, or adults born after 1982, said sending someone porn without consent was sexual harassment, compared with 90% of those born between 1965 and 1981, and 94% of baby boomers (born 1946-1964.) Yet porn in the workplace is often regarded by courts as evidence of sexual harassment.
The New York Times tried to get its arms around the issue by polling men about the kinds of stuff they do at work, like telling sexual jokes or continuing to ask someone on dates, and found a third of men had done some variation of such activity. Such attempts to try to define behavior just muddles the issue.
MacKinnon, who did not respond to request for an interview with Quartz, put it this way during a Dec. 1 panel discussion in Mumbai when she was asked about corporate best practices to combat sexual harassment:
”It’s called equality,” she said. “Put more women in positions of authority and power, advance women according to their actual ability. Treat them like they are real. Every place that I go, there are men around. They act like women aren’t real, me included. Everything you say, sort of bounces off them and goes past them, while they are thinking about something else … And what that ends up meaning is that men get a lot of latitude in terms of assumptions of their competence … women aren’t given the benefit of those assumptions.”
Poll after poll, story after story, survey after survey, has shown that women are disadvantaged in the workplace. Sexual harassment is just a symptom. Until women get an equal voice and equal treatment in pay, career opportunity, and advancement, very little is likely to change.
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