Radical feminist Catharine MacKinnon provided a legal framework for sexual harassment in her book Sexual Harassment of Working Women (1979). She explored the case of Carmita Wood -- the case in which the term "sexual harassment" first emerged. Wood had resigned from a position she had worked hard to attain at Cornell University because of incessant sexual attention of a male official away from whom the University refused to let her transfer. Wood was also denied unemployment benefits because the University claimed her resignation was for personal reasons. The term "sexual harassment" was invented for the claim she filed against Cornell.
MacKinnon argued that sexual harassment was a form of discrimination against women in employment. In doing so, she appealed to a long-standing goal of more moderate liberal feminists who generally sought to reform male society rather than to overthrow it. Namely, they wanted to improve the working conditions and salaries of women in the market place. MacKinnon offered an innovative method to reach that goal: litigation. Thus, sexual harassment became part of the liberal feminist agenda as well and, so, gained considerable momentum.
Legal precedent and legal mechanisms for implementing the sexual harassment agenda of liberal and radical feminists already existed. On January 31, 1970, the feminist group Women's Equity Action League had filed a class-action complaint with the Department of Labor against all universities and colleges in the United States. The complaint accused academia of sexually discriminating against female employees. In the next few years, through a concerted campaign, hundreds of similar complaints were filed against specific schools alleging that they discriminated against women through everything from their admission practices for students to the lower salaries paid to female professors.
The new charge of sexual discrimination had legal teeth because of two measures. The first was the Civil Rights Act of 1964. Section 703(a) of Title VII of the Act states that it is "an unlawful employment practice" for an employer to discriminate in hiring, firing or in applying the conditions of employment because of "race, color, religion, sex, or national origin." Although universities and colleges were excluded, the Act provided precedent. In 1972, Title IX of the Education Amendments Act required educational institutions to outlaw sexual discrimination if they wished to receive federal funding. The Department of Education included "verbal...conduct of a sexual nature" within its definition of what constituted sexual discrimination.
The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, was expanded in 1979. By 1980, EEOC guidelines defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" when the accepting the attention is a condition of employment or is used to make employment decisions or creates a hostile environment. In 1984, the EEOC amended its sexual harassment guidelines and placed the burden of blame squarely on the employer, who was responsible (and liable) for any act of sexual harassment within his business.
With all the "guidance" offered by lawsuits, feminist theorists, government agencies, and privately drafted policies, a question about sexual harassment still remains: what is it?
Toward a Definition
One problem in defining sexual harassment is that the term is used differently in the workplace than it is in academia.
Harassment in the workplace is generally defined in one of two ways: (1) a quid pro quo, by which sexual favors are directly traded for professional gain or against a threat of professional loss; and (2) "a hostile working environment in which women are threatened and disempowered."
Quid pro quo is a fairly well understood form of sexual harassment: the woman (or man) renders sexual favors in return for keeping a job or for other employment benefit.
It is the subtle form of sexual harassment, "a hostile working environment," that causes the most confusion. What is a hostile working environment? The term was coined in the 1970s by Catharine MacKinnon, who did not provide a clear -- that is, a non-subjective -- definition.
The concept became part of American society in 1986 when the U.S. Supreme Court ruled in Meritor Savings Bank v. Vinson that sexual harassment existed when the conduct of an employer or co-worker has "the purpose or effect of unreasonably interfering with an individuals' work performance or creating an intimidating, hostile, or offensive working environment."
This ruling embedded subjective standards into sexual harassment in at least two ways. First, the word "purpose or effect" meant that the alleged harasser need not have intended any harm. Nevertheless, the alleged victim could sue under Title VII on the basis of the effect of an action. Second, words like "intimidating" and "offensive" invite subjective and widely varying interpretations. Further court rulings tended to encourage subjective interpretation.
For example, in Ellison v. Brady (1991) the U.S. Court of Appeals for the Ninth Circuit rejected the "reasonable person" standard in evaluating sexual harassment. By that standard, the court would have evaluated whether a behavior was offensive or not from the point of view of the average sensible human being. Instead, the court found that "a sex-blind reasonable person standard" tended to be "male-biased" and did not take sufficiently into account "the experiences of women." Thus, the court adopted "a reasonable woman" standard," by which women's subjective assessment of men's behavior became the guideline for what was deemed offensive and sexually harassing. The EEOC explicitly adopted the reasonable woman standard as well. Thus, a hostile working environment has been found to include jokes, unsolicited compliments, and any other purely verbal conduct that makes a co-worker feel uncomfortable.
As an issue, sexual harassment in academia has evolved in a different manner than in the work place and it has been defined in a more restrictive manner. In essence, it focused more upon the position of authority that a professor had with regard to a female student. One of the early and most frequently cited definitions comes from the researcher F.J. Tilly in his Sexual Harassment: A Report on the Sexual Harassment of Students (1980). Tilly deemed sexual harassment in academia to be "the use of authority to emphasize the sexuality or sexual identity of a student in a manner which prevents or impairs the student's full enjoyment of educational benefits, climate, or opportunities."
Tilly identified five types of sexual harassment, including general sexual comments; inappropriate sexual advances, which occur without sanction; sexual advances, which have the promise of rewards; sexual advances, which hold the threat of punishment; and, sexual assaults.
Universities across the nation have instituted some version of this definition and they have usually gone several steps farther. For example, in September 1989, Harvard University -- to whom many other schools look as a role model -- issued a guideline that removed any connection between behavior and intent. It said that sexual harassment could occur even when the transgressor acted with goodwill and no intent to harm. In the section entitled, 'Sexism in the Classroom', the Harvard guideline cautioned against innocent remarks without sexual content that might be taken the wrong way. It stated, "Alienating messages may be subtle and even unintentional, but they nevertheless tend to compromise the learning experience of both sexes...For example...calling only upon women in a class on topics such as marriage and the family..." Thus, sexual harassment has come to include the pattern of how a professor asks questions, the standard reading material he assigns, his interpretation of classic works and many other seemingly benign behaviors.
The more restrictive definition within academia probably reflects two factors. First, there is a more intimate connection between universities and the federal government than exists in the private work place. Academia and private industry must both comply with the Civil Rights Act of 1991 that opened the door for both compensatory and punitive damages for sexual harassment cases. But most universities, unlike most work places, are financially dependent on the federal government. Thus, academia complies with additional measures such as the Campus Sexual Assault Victims' Bill of Rights (1992) through which administrations, in order to maintain federal funding, were required to follow up diligently on reported offenses and to do so in a manner that protected the complainant.
Compliance with this and other federal requirements has led to policies that favor the accuser. Probably the most extreme version of such a policy was the one put into practice by Columbia University in fall 2000. The policy flatly denied due process to the accused. For example, the accused could not face his accuser or cross-examine witnesses at his hearing since the policy stated, "the student does not necessarily have the right to be present to hear other witnesses." Nor was he allowed to have an attorney present. (In the wake of national outrage over these and other violations of due process, the policy has been considerably softened.)
The second reason that academia has adopted a stricter code on sexual harassment is the prominence of radical or gender feminist ideology within its halls.
In Sexual Harassment: Confrontations and Decisions (1992), radical feminist Nancy Tuana contends that even innocent academic meetings can be coercive because of the power differential between a professor and student. Tuana calls this harassment an "implicit unintended threat, [with] no intention to harm." Thus, in academia, the mere presence of authority can function as harassment regardless of the actions or intentions of the authority figure.
The broadening of the definition of sexual harassment within universities continues to this day. For example, earlier this year, Sandra Banack won a sexual harassment suit brought against Cal State University at Fullerton. No sexual touching or language was alleged: no one lost a job or salary. Rather, the university was found guilty of reprimanding Banack about a possible trespass upon private property and violation of a permit from the Department of Fish and Game during a class field trip. The reprimand was judged to have been both unfounded and directed at Banack because she is a woman. Thus, the reprimand constituted sexual harassment.
Contra Sexual Harassment Policies
Even those who champion First Amendment protection of free speech rarely object to the de facto State regulation of sexual expression within private industry. One reason is undoubtedly because the work place -- and laissez-faire capitalism in general -- has been thoroughly and effectively vilified by modern liberalism. People who would never tolerate the regulation of sexual attitudes in the home, on the street, or in the media rarely blink at imposing draconian speech codes on private industry. And, so, a place at which many people spend most of their day, the work place, has become an area in which government controls the attitudes expressed.
It is only in academia that the impact of sexual harassment policies on freedom of speech is treated as a credible concern because universities still retain the mystique of being halls of knowledge where truth is pursued.
In her book Who Stole Feminism?: How Women Have Betrayed Women (1994), Christina Hoff Sommers detailed the disastrous affects such policies can have on academic freedom. She described a situation at a university in Minnesota in which four female students accused all the tenured staff of the Scandinavian studies department (five men and one women) of sexual harassment. The students filed formal charges. The accusations included: the professors harassed the students by not giving them higher grades; one professor greeted a student in an unfriendly manner; another offered a 'patriarchal' interpretation of Isaak Dinesen's work; one did not read a novel that the student had recommended.
The students' demands for remedy included the denial of merit pay for not less than five years; monthly sexual harassment workshops for at least 12 months. In the end, all charges were dropped, without explanation.
The iconoclastic feminist Daphne Patai, in her book Heterophobia: Sexual Harassment of the Future of Feminism (1998), chronicled other casualties of sexual harassment, including Professor Ramdas Lamb. Teaching religion at the University of Hawaii at Manoa, Lamb was reportedly a very affable, popular, and accessible man who gave of his time freely to students. (Ironically, this sort of professor is most vulnerable to sexual harassment charges.) As part of a course on contemporary social issues, Lamb assigned an article from a textbook which dealt with rape. A discussion ensued in class among the students about false rape allegations. During the back-and-forth, several female students insisted that "women never lie" and became distressed when Lamb encouraged a hearing for all sides.
A three-and-a-half year battle followed. Even though Lamb was so pro-feminist that he referred to God as "she," three female students claimed that he had created a hostile environment for women. Months later, one of the students, Michelle Gretzinger, added the charge of rape to her complaint. The additional accusation was proven untrue when it was demonstrated that some of the specific dates of attack she provided were not feasible.
Patai quotes Lamb, "I used to love to teach. Not any more. I used to love to interact with students and stimulate them to think critically. Not any more. I used to believe that university campuses promoted free speech and the truth. Not any more. I used to believe students when they would tell me things. Not any more."
The threat of sexual harassment complaints has chilled free speech and inquiry on campuses across the nation.
Even without addressing freedom of speech, it is clear that sexual harassment policies have damaged the work place as well. Among the less visible costs are: women have acquired the status of victims who require protection from a paternalistic State; women are losing mentors who are unwilling to risk complaints; women are being viewed as "the enemy" by male co-workers who do not associate with them more than is necessary.
The most visible cost to both the workplace and academia, however, is the financial burden imposed by the Sexual Harassment Industry or SHI, as Patai has dubbed it. The SHI consists of writers, professors, sensitivity or diversity trainers, consultants, scholars, lawyers, psychologists, bureaucrats such as the EEOC, expert witnesses, and all other professionals who profit from the issue of sexual harassment. For example, Patai describes how her school, the University of Massachusetts at Amherst paid $1,250 to $1,800 per day per trainer for a course on sexual harassment prevention. The university paid an additional $10,000 for expenses such as travel, hotels and meals. The was merely one course in a far larger sexual harassment program at the university.
Lawyers are among those who receive huge benefits from sexual harassment complaints. In the Cal State Fullerton case previously mentioned, the lawyer for the complainant received $236,804 in fees as part of the court settlement: his client received only $75,000 in damages. And, of course, the university required legal services of its own.
The SHI has a vested interest in expanding both the definition and the application of sexual harassment. The idea of sexual harassment as an overwhelming, all-pervasive problem has been constructed in order to convince people that trivial behavior -- such as telling tasteless jokes -- should be legally actionable.
Patai illustrates one way that sexual harassment is made to appear pervasive. She describes a passage in the influential Sexual Harassment on Campus: a Guide for Administrators, Faculty, and Students (1997), by Sandler and Shoop. (Bernice Sandler is arguably the foremost figure in the SHI.) The opening chapter states, "About two percent of undergraduate women experience the most severe type of sexual harassment -- direct or indirect threats of bribes for unwanted sexual activity from faculty or staff. For graduate women, the incidence for sexual harassment increases; between 30% to 40% report they have experienced some form of sexual harassment from faculty or administrators." Patai points to the "easy transition" from severe sexual harassment to "some form" of harassment -- "some form" being undefined. Thus, behavior that may be as innocuous as a thoughtless comment may be placed under the same heading as a sexual assault, and both made actionable as the same behavior.
Thus, Sexual Harassment on Campus, includes the following behaviors: sexual bantering; humor about females or sex; laughing at or not taking seriously someone who talks of experiencing sexual harassment; leering or ogling such as in what was called "elevator eyes" and attempted or actual sexual assault. Ogling is conflated with a physical attack. By converting the trivial into the legally actionable, the SHI guarantees that the flow of money into its pockets continues.
It also expands the control that feminism exerts over society.
Conclusion
One of the greatest flaws in the current treatment of sexual harassment is the inability of existing laws and policies to distinguish between assault and trivial behavior. For example, a 1993 brochure issued by the Personnel Services of the Southern Illinois University at Carbondale declared, "Sexual harassment can be as subtle as a look or as blatant as rape."
Ellen Frankel Paul, a Professor at Bowling Green State University, makes a key distinction in her essay "Bared Buttocks and Federal Cases." She writes, "Outrageous acts -- sexual harassment per se -- must be legally redressable. Lesser but not trivial offenses...should be considered moral lapses for which the offending party receives opprobrium, disciplinary warnings, or penalties, depending of the setting and the severity."
Sexual harassment policies became a part of our culture because they addressed a "wrong" that many women experienced without being able to name. Because the remedy was translated so quickly into legal terms, the private sector has never had the opportunity to address the "wrong" in any other terms. As long as "the law" and feminist theory are the arbiters of what expression should be permitted between the sexes, the issue of sexual harassment will continue to create conflict and stifle the freedoms upon which healthy sexuality depends.