Wednesday, October 28, 2020

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 Abstract

Excerpted From: Trina Jones and Emma E. Wade, ME TOO? Race, Gender, and Ending Workplace Sexual Harassment, 27 Duke Journal of Gender Law & Policy 203 (2019-2020) (129 Footnotes) (Full Document)

Jones WadeOn October 5, 2017, the New York Times published an exposé that propelled the nation into what has become known as the Me Too era. The exposé detailed nearly three decades of predatory behavior by Harvey Weinstein, one of Hollywood's most influential producers, toward actresses, aspiring actresses, and female employees of the Weinstein Company. Weinstein's behavior was an “open secret” in Hollywood. Because of his power and influence, however, few had directly challenged it. The New York Times' article changed all of that. Following the Times' exposé, prominent Hollywood actresses like Ashley Judd and Gwyneth Paltrow began to speak out about their experiences with sexual harassment and assault. Notably, in a post on Facebook and Twitter, Alyssa Milano urged women to acknowledge on social media if they had been sexually harassed or assaulted. The public's feedback was overwhelming. Tens of thousands of women responded “me too,” with many sharing their personal stories of abuse. In so doing, these women bore witness to the ubiquitous nature of sexual harassment and sexual assault. Their responses made it possible for other women to speak up and made it impossible for the country to look the other way.

Although the terminology and legal claims are relatively new, sexual harassment and sexual assault are pervasive. Catharine MacKinnon, a renowned feminist and champion of women's rights, states in her path-breaking book, The Sexual Harassment of Working Women, that in the 1970s the term “sexual harassment” did not exist. Yet, in her discussions with working women at the time, MacKinnon notes that women shared countless stories of denigration and abuse in the workplace. As they entered previously male-dominated workspaces, men frequently conditioned women's employment opportunities on compliance with male sexual advances. Moreover, work environments were polluted with pornographic material, demeaning language, and other gender-based insults and ridicule. Empirical data from the 1970s are limited, as women worked to describe and to name what they were experiencing. Recent studies, however, estimate that anywhere from 25 to 80 percent of women in the United States experiencence workplace harassment in their lifetimes. Although men are subject to sexual harassment and sexual violence, women overwhelmingly remain its targets.

Women's responses to Milano's post put a human face to the statistical data. In addition, with high profile, powerful women pushing for change-- empires began to topple, or at least, to tilt. Media moguls like Harvey Weinstein and Bill Cosby were taken down. Journalists and businessmen like Bill O'Reilly, Matt Lauer, Charlie Rose, and Roger Ailes lost their jobs. Celebrity chefs, such as Mario Batali, tumbled. So too did notable politicians like U.S. Senator Al Franken, jurists like Roy Moore and Alex Kozinski, and entertainers like Garrison Keillor, Russell Simmons, and Louis C.K. As of October 2018--a mere year after Me Too went viral--at least 200 prominent businessmen had lost their jobs following public allegations of sexual harassment, and women replaced nearly half of these men.

The overwhelming social media response to Milano's post was not limited to the United States. Me Too has had a global ripple effect. In India. In sub-Saharan Africa. In South America. In southeast Asia. In each of these regions, and elsewhere, women have shared undeniably heartbreaking and raw personal accounts of their experiences.

While one applauds the attention that Me Too has brought to the issue of sexual harassment and sexual assault, some areas within the movement, and within the law, require additional consideration and analysis. This Essay examines three such areas: (1) the absence of an intersectional approach in both lay and legal discussions of sexual harassment and sexual assault; (2) the fact that some men are rebounding without evidence of redemption--and, more critically, that women who come forth still risk considerable backlash; and (3) the fact that U.S. law and lawmakers have been rather conservative in addressing sexual harassment. Analysis of these areas suggests that, while helpful, the social media momentum and greater awareness sparked by Me Too may be inadequate alone to end sexual harassment.

 

I. The Need for Intersectional Analyses

In the U.S. legal academy, Kimberlé Crenshaw and other Black feminist scholars have analyzed how discussions of gender tend to focus on White middle- class women, and how discussions of race tend to focus on Black men. This focus omits, and renders invisible, the experiences and voices of poor women and women of color.

Crenshaw notes that society tends to treat race and gender as separate, mutually exclusive categories of experience and analysis and that this separation puts our focus on privileged individuals within these categories. She writes:

[I]n race discrimination cases, discrimination tends to be viewed in terms of sex- or class-privileged Blacks; in sex discrimination cases, the focus is on race- and class-privileged women.

.... [T]his focus on otherwise-privileged group members creates a distorted analysis of racism and sexism because the operative conceptions of race and sex become grounded in experiences that actually represent only a subset of a much more complex phenomenon.

Crenshaw's insight is that race and gender are always interconnected and never exist as separately distinct, disaggregated identities. Professor Angela Harris adds to the analysis by pointing out that there is nothing “essential” about gender or race that causes all women to share the same experience of sexism and all people of color to share the same experience of racism. Because gender is always mediated by race, and race is always mediated by gender, there is no monolithic women's experience, just as there is no monolithic Black, Latinx, or Asian experience. The intersectionality and anti-essentialism critiques also extend to other status markers that situate people differently (e.g., class, gender identity, ability).

The trajectory of the Me Too movement illustrates the critical need for an intersectional approach. Importantly, Me Too did not begin in 2017, nor did it begin on Twitter or Facebook. The phrase Me Too was first coined in 2006 by Tarana Burke, a Black woman activist who had just 500 Twitter followers when the Times' article broke. In 2006, Burke was living and working in Alabama where she had just founded Just Be, Inc. The organization's goal was to empower and promote the general wellbeing of young girls of color. In her work with Just Be, Burke encountered a number of girls who, both knowingly and unknowingly, disclosed experiences of sexual violence not unlike her own. Burke set up a 'Me Too’ Myspace page to raise awareness of the issue and to establish a supportive community. This Myspace page was Me Too's first virtual home, and soon, Me Too became an organization. Thus, from its inception, Me Too was intended “to help survivors of sexual violence, particularly Black women and girls, and other young women of color from low wealth communities, find pathways to healing.”

Despite Burke's best efforts, the hashtag and the term did not go viral for over a decade. It was not until October 2017 when the Weinstein exposé broke and high-profile celebrities began to speak out about their experiences that the movement amassed widespread attention and support. While these celebrities ought to be admired for their courage, what we have learned is that wealthy celebrities and upper-middle-class White women are more likely than lower-income women and women of color to garner attention when they speak. Their concerns are taken more seriously, and they are more likely to be believed.

The voices of relatively privileged women thus tend to shape discussions of sexual harassment and sexual assault, even though such violations disproportionately affect more marginalized women. Data from the Equal Employment Opportunity Commission show that low-wage women in the food, retail, and health care industries filed the highest number of sexual harassment and assault charges between 2012 and 2016. These same data show that Black women are three times as likely as non-Hispanic White women to experience sexual harassment at work. While sexual harassment and assault occur in all workplaces and at all levels of employment, a heavy focus on high-profile celebrities obscures what happens in agricultural fields, in hotel rooms, in bars and restaurants, and in retail stores where workers often hold low-wage jobs, are often women of color, and often live paycheck to paycheck. Viewing sexual harassment and sexual assault through a narrow lens makes it harder to see how racism and classism render poor women and women of color especially vulnerable, yet simultaneously suspicious. As Emily Martin, President for Workplace Justice at the National Women's Law Center has noted, alleging sexual harassment is:

scary for anybody, but it's especially threatening if you don't have a financial cushion and your paycheck is the only thing standing between your family and homelessness ... [Moreover,] [o]ur willingness to believe victims of harassment and violence is not extended to all victims equally ... If you're poor, you may be found less credible when you tell your story.

Similarly, Professor Tanya Hernández, has argued that the harassment women of color face is “particularly debilitating” because it combines both sexist attitudes and racial stereotypes. For example, Hernández notes that “[w]omen of color are frequently depicted as sexually promiscuous, sexually available, and sexually voracious.” This 'continuing myth of promiscuity,” Hernández explains, shapes both the types of harassment women of color face as well as their likelihood of being believed.

Erasure of the activism and experiences of poor women and women of color is not merely part of the social discourse in the United States; it is also reflected in the ways in which U.S. law is taught and created. In other words, this erasure is embedded in our governing structures. To illustrate this point, consider Meritor Savings Bank, FSB v. Vinson, the first case in which the U.S. Supreme Court recognized sexual harassment as a form of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964.g

Meritor Savings Bank, FSB v. Vinson

In 1974, Mechelle Vinson began working for Meritor Savings Bank as a teller-trainee. Over the next four years, the bank promoted Vinson to teller, head teller, and assistant branch manager. Shortly after her probationary period ended, Vinson alleged that Sidney Taylor, who was an assistant vice-president of the bank and the manager of one of its branches, began to harass her. She testified that Taylor repeatedly demanded sexual favors, fondled her in front of other employees, exposed himself to her, and forcibly raped her on several occasions. Vinson initially refused Taylor's sexual demands but eventually complied because she feared losing her job. Vinson testified that she had sex with Taylor forty to fifty times over the course of her employment. Because Vinson was afraid of Taylor, she never reported his harassment to any of his supervisors and never attempted to use the bank's complaint procedures.

Taylor denied all of Vinson's allegations, contending that they were in response to a business-related dispute. The Bank also denied Vinson's allegations, asserting that “any sexual harassment by Taylor was unknown to the bank and engaged in without its consent or approval.”

In its groundbreaking opinion, the U.S. Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII, noting “[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminates' on the basis of sex.” Although the case reached the Court on a hostile environment theory, by adopting the EEOC's definition of harassment the Court endorsed both quid pro quo and hostile environment claims. Quid pro quo claims involve unwelcome employer demands for sexual favors in return for an employment benefit or to avoid an employment detriment. Hostile environment claims involve unwelcome conduct that is sufficiently severe or pervasive as to alter the terms or conditions of employment and create an abusive working environment.

In addition to recognizing sexual harassment as a form of prohibited sex discrimination, the Court in Meritor made at least three important doctrinal determinations favorable to plaintiffs. First, the Court rejected the Bank's argument that psychological or environmental harm is insufficient to state a claim and that a plaintiff must show “a tangible loss” of an “economic character.” In rejecting this contention, the Court noted that Title VII's language is not limited to economic or tangible harm. Rather, the Court found “[t]he phrase 'terms, conditions, or privileges of employment’ evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women’ in employment.”

Second, in determining whether certain behavior is actionable, the Court made clear that the standard is “unwelcomeness,” not “voluntariness.” The Court stated:

the fact that sex-related conduct was voluntary in the sense that the complainant was not forced to participate against her will is not a defense to a sexual harassment suit brought under Title VII ... The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome ....

Third, the Court held that a plaintiff's failure to use an employer's complaint mechanism is not fatal. The Court noted that leniency may be particularly appropriate when the employer's policies do not specify the type of behavior that is prohibited and do not provide a mechanism for a plaintiff to bypass her harasser when seeking redress.

In reaching these conclusions, the Court significantly advanced the ability of complainants to seek redress for workplace sexual harassment. Unfortunately, however, the Supreme Court omitted any reference in its analysis to Vinson's age, race, or economic class. Indeed, students often assume that Mechelle Vinson was an older, middle-class, White woman. She, however, was not. Both Vinson and Taylor were Black. Vinson was 19 when she met Taylor. She grew up poor and was a high school dropout with a general education diploma (“GED”)--a subsequently earned equivalent to a high school diploma. Prior to her employment at the bank, Vinson had worked in lower level, female-dominated jobs in the service industry. In contrast, Taylor was old enough to be Vinson's father. He had worked his way up the bank's hierarchy from janitor to assistant vice-president. He was a father of seven children, the deacon of his church, and was revered by the local community.

We suggest that inclusion of these facts would have more clearly exposed the power dynamics at play between Vinson and Taylor and in sexual harassment cases more generally. Their inclusion would have demonstrated the ways in which race, class, and age intersect to heighten the vulnerability of certain women, particularly young, poor, women of color. For example, Vinson's economic marginality and limited educational training likely created a sense of extreme excitement at being afforded a chance at upward mobility. This same economic marginality, however, meant that Vinson feared losing her job and therefore likely endured Taylor's unwanted sexual advances and assaults for years without utilizing the bank's complaint mechanisms. Similarly, revealing that Vinson was a teenager would have shown how age, combined with Vinson's lack of social stature, likely created a sense of horror, betrayal, and helplessness when Vinson became the target of someone she viewed as a father figure.

Race adds an additional layer of complexity. As noted earlier, stereotypes of Black women as loose, sexually promiscuous, and lacking in sexual morals are pervasive in the United States. Knowing it is likely that their allegations will be viewed with deep skepticism, that their characters will be attacked, and that their harassers will walk away relatively unscathed, Black women like Mechelle Vinson may be reticent to report harassing behavior. Further heightening their reluctance are the pressures of racial loyalty, which can include the expectation not to air the dirty laundry of sexism within the Black community, and the fear of being labeled a race traitor.

While the analysis thus far has focused primarily on the intersection of race, gender, and class, it also applies to other constitutive aspects of identity. For example, scholars have discussed the ways in which conversations around sexual orientation and gender identity often employ a white, heterosexist norm that renders invisible the experiences of people of color in LGBTQIA communities. Merely identifying with a nonheteronormative sexual orientation and/or gender identity heightens vulnerability to all forms of subordination, including sexual harassment and sexual assault. Race further compounds this vulnerability. For example, nearly half (47 percent) of the respondents in the 2015 U.S. Transgender Survey said that they had been sexually assaulted at some point in their lifetimes. Among those respondents who identified as Black or African American, more than half (53 percent) reported having been sexually assaulted at some point in their lifetimes. The figures for Latino/a; American Indian and Alaska Native; and Native Hawaiian, and Pacific Islander respondents were 48, 65, and 56 percent, respectively. Unfortunately, future outcomes for individuals with these intersectional identities look particularly bleak, given that U.S. anti-discrimination law to date offers very limited, and inconsistent, protection against discrimination on the basis of sexual orientation and gender identity.

In sum, to properly understand and remedy sexual harassment and sexual assault, issues of race, class, gender identity, and age, among other things, need to be in the foreground, not rendered invisible or ignored. A truly intersectional approach would reveal the larger context in which harassment occurs. It would also underscore that harassment and sexual assault are about power, not desire, and would expose how various status markers shape people's experiences in the workplace. Highlighting this power dynamic is critically important as harassers strategically target those whom they perceive as most vulnerable.

[. . .]

In conclusion, sexual harassment and assault are pervasive. Although Me Too has brought attention and renewed passion to these issues, there is still much work to be done. Women often encounter tremendous backlash when their allegations of harassment and sexual assault become public. Notably, many of the celebrities behind Me Too were middle- or upper-middle class and had some degree of racial and economic privilege. If these women found it difficult to share their experiences and to endure the resulting pushback, one can only imagine what it is like for poor, young women who may lack adequate educational training, family support, and resources. Women who are surviving on the margins and struggling to make ends meet are especially vulnerable, yet they are largely invisible in contemporary discussions of sexual harassment and sexual assault in the United States. This Essay has argued that advocates for change must see and give voice to these women. We must expose that harassment and sexual assault are about power, not desire, and show how race, class, age, and gender identity, among other things, shape women's experiences in the workplace. In addition, the law must not shy away from contextual analysis; rather judges and law makers should craft doctrine with sufficient flexibility to take into consideration the myriad circumstances in which sexual harassment and sexual assault occur. Indeed, they must do so if sexual harassment and assault are to be actually and appropriately remedied.  


Jerome M. Culp Professor of Law, Duke University School of Law.


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