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How the history of sexual harassment law paves our direction

A brief history

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 Dignity At Work 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.

 

Roots in slavery

Siegel defines sexual harassment as unwanted sexual relations imposed by superiors on subordinates at work. The practice has US roots in slavery; African-American women had no protections under law before the abolition of slavery in 1865.

Closer to freedom on a spectrum of control and freedom, free women working in domestic service, manufacturing, and clerical positions also often faced sexual advances by men in their workplaces — ranging from assault to unwanted advances.

Public sentiment since the antislavery movement went in one of two directions:

  1. 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.)
  2. 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.

Takeaway for the Dignity At Work Act:
Stereotypes and weak laws are tools to keep those who write the rules in power, but our social rules can change when a group of people begin to speak up.


Questions on dependence on men, even the practice of marriage

Women’s susceptibility to sexual coercion was the norm rather than exception due to socioeconomic conditions. Limitations to lower wage jobs left women dependent on men for economic support and setup a condition for sexual compliance, in and out of marriage. For that reason, some called marriage “legalized prostitution.”

Domestic servant Hester Vaughn brought major attention to the issue from such outspoken feminist leaders as Susan B. Anthony. In the aftermath of the Civil War, Vaughn was impregnated by her employer, found several days later with her dead infant by her side, found guilty of infanticide, and sentenced to death.

The situation brought rise to questioning gendered injustices that cumulatively sealed Vaughn’s fate:

  • Gender and class restrictions that drove Vaughn to domestic service
  • Economic dependency that created sexual vulnerability

The courts put Vaughn, men, and society on trial, leading to a larger political movement around women’s exclusion from jury service and suffrage.

Takeaway for the Dignity At Work Act:
We must look at how race, gender, and class influence our access to opportunity and our economic freedom.


The failure of rape law that increased collective action

Clearly the high threshold of rape law failed to protect women from sexual predation, leading to an escalated focus on law reform AND collective action in the early 1900s. A 1908 case fueled this collective action; two workers took a saloon-keeper to court who fired a barmaid he impregnated. When they lost the case, these workers organized other workers to provide community support. 

It became this fusion of labor and feminist agendas to fight against the economic and social inferiority of women. Men treated women not according to the merit of their work but rather as a sex, without the right to exist beyond their service to men. 

Takeaway for the Dignity At Work 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.

   

Sexual harassment as sex discrimination 

It wasn’t until the 1970s that lawyers and activists mounted a social movement against the practice of sexual harassment, leading to legislators recognizing for the first time women’s right to work free of unwanted sexual advances.

The re-characterization of sexual harassment as sex discrimination was key to the social movement. While Title VII of the Civil Rights Act of 1964 made discrimination legally actionable, there was a need to persuade legislators that sexual harassment is “discrimination on the basis of sex” and that there’s a subordination of women to men influenced by sexual relations and economic dependency. (Men required women to exchange sexual services for economic survival in both marriage and the market, which institutionalized this setup and put women’s sex role over their merits as workers. In fact, work relationships paralleled home relationships with division of gender roles and women’s economic dependency on men.)

So sexual harassment is a tool for subordination to reinforce the social hierarchy and inequality: patriarchy, dominance, entitlement, and exploitation. 

The question became: how can you tell sexual harassment happened because one is a woman? The answer: a man in her position would not be or was not so treated. Employers were not to treat women employees differently than they would treat male employees. 

Takeaway for the Dignity At Work Act:
We can re-characterize status-blind mistreatment as legal discrimination.

  

Courts’ response

At first, courts positioned sexual harassment, and even sexual assault, as a personal matter having nothing to do with discrimination or work. They believed sexual harassment was natural and inevitable and dismissed the issue on these grounds:

  1. The system did not include power differentials based on sex.
  2. 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.)

Of course these grounds simply weakened the law and preserved traditional gender roles in the workplace and in society.

Courts questioned Congress’ intentions and decided their sex-plus approach would protect businesses’ ability to do business (with exceptions). 

In one early case, a judge decided that coerced sexual relations at work play a role in the perpetuation of gender inequality and a hostile environment claim. Sex-plus disappeared after this early case.

But federal courts still use sex-plus in some ways. Employers may refuse to hire based on men seeming feminine or women seeming masculine. 

This approach loses the historical and social context, mis-recognizing behavior and harm by removing the point that sexual harassment, as any form of discrimination, is abuse of power and a reinforcement of the social hierarchy. Courts often focused on a literal interpretation of the law versus the social backdrop against which it was created. With both race discrimination law and sex discrimination law, we focus on the physiological identity, not the sociological identity. While the courts progressed by considering sexual harassment to be a form of sex discrimination, they don’t tie in other social circumstances (hierarchical position or economic situation, for example), the behavior itself, or the types of harm inflicted. The law failed to explain the basic context of the historical power dynamic minimizing women: men coerce economically dependent women into sex to reinforce social hierarchies in both marriage and the market that cumulatively made reasonable and natural a world in which women were on the bottom and men on the top. The law failed to explicitly call for those with privilege to give up some of it so women could have dignity.

Takeaway for the Dignity At Work 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.


The evolution of sexual harassment: threats to the good ol’ boys clubs

Since women did not want sexual advances, social change required switching the narrative from desire to power, or an abuse of greater economic authority and resources to secure sexual access to women that men wouldn’t have without that power. That threat to power expanded beyond sexual advances when in the 1970s, women began to slowly break into traditionally male industries. 

Men used varied tactics to make women feel unwelcome enough to be kept down (institutional subordination or sexualizing hierarchy) or leave (institutional exclusion or gendermarking roles) with forms of work that were traditionally gendered male:

  • 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.

Supreme Court’s first two sexual harassment decisions set the example for lower courts:

  • 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.

Harassment became a tool for “occupational segregation,” or the exclusion of women in the absence of the legal authority to fire them for the violation of gendered work spaces or roles. The goal: restore the gendered order of work. Courts often fail to recognize this economically leveraged harassing conduct that is nonsexual as a communication of outsider status. It’s gender-role policing.

In 1998, in Oncale v. Sundowner Offshore Services, the Supreme Court recognized that sexual harassment need not be heterosexual cases or even motivated by sexual desire when they applied Title VII to harassment at work between members of the same sex. In Oncale, a group of men on an oil platform in the Gulf of Mexico harassed a male coworker: threats of rape and mock-performances of it.

So employees are tasked with proving that conduct was both sexual in part AND discrimination because of sex. The Oncale case shows the difference between “desire” and “hostility” — though both aim to restore the gender-traditional order in which men’s power over women is secure.

Takeaway for the Dignity At Work 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 Dignity At Work Act addresses these questions.

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