criminology writing assignment

Can Sexual Harassment Be Salvaged? Author(s): M. J. Booker Source: Journal of Business Ethics, Vol. 17, No. 11 (Aug., 1998), pp. 1171-1177 Published by: Springer Stable URL: https://www.jstor.org/stable/25073948 Accessed: 22-10-2019 03:28 UTC

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Can Sexual Harassment Be Salvaged? M. J. Booker

ABSTRACT. Cases of sexual harassment have become increasingly common in the courts, but there is at present no coherent definition of just what sexual harassment is supposed to consist. The Equal Employment Opportunity Commission guidelines ultimately focus on issues of subjective victimization, a standard which is overly broad and prescriptively empty. In order to salvage the concept of sexual harassment, it is argued here that the element of unwelcomeness must be removed from it. Instead of

considering welcomeness, it is argued that sexual harassment can be given proscriptive clarity if it is delineated as gender harassment, coercive sexual harassment, and presumptive sexual harassment.

Concord [New Hampshire] has agreed to give its first female firefighter $511,000 to settle a sexual harassment and discrimination suit. [. . .] [Kate] Taylor testified that her co-workers called her "c?" to her face, planted a picture in her locker of two women having sex and told her that she couldn't do a man's job. She testified that a former fire lieutenant told her about sexual dream he had

about her and told her she might learn something if she joined the crew in watching a pornographic film about women firefighters.1 A few weeks ago, 6-year-old Jonathan Prevette

kissed a classmate on the cheek and received a one

day suspension from his principal in Lexington, N.C. While school officials at first termed the incident "sexual harassment," they later back tracked and called it "unwelcome touching."

Whatever it was called, the first-grader missed out on a day of school and an ice cream outing.2 Dan Wassong is chief executive of Del

Laboratories Inc., a Long Island-based cosmetics company. [. . .] Fifteen secretaries who worked at Del Laboratories told the EEOC that Wassong had used foul language, worked in his underwear in front of them, urinated with the restroom door open, asked them for oral sex or hit them. About

two dozen more women gave the EEOC infor mation about his behavior in the workplace. Del Laboratories last year agreed to pay $1.2 million to settle the case, without admitting wrongdoing by Wassong.3

Chris Robison, a graduate student in psy chology at the large University of Nebraska at Lincoln, is an assistant in that department. [. . .] Until recently, Robison had on his desk a photo graph of his wife, wearing a bikini. The picture was of modest size, five inches by seven inches. Sharing the office are two women who are also graduate students. They demanded that the picture be removed because it violated the university's sexual harassment policy in that it created a hostile work environment.4

What is sexual harassment? In practice, the term sexual harassment has become a classic

Wittgensteinian open concept. An open concept is one which consists of an overlapping group of features which share no necessary common factors. Open concepts lend themselves to shades of gray, and to uncertain application. The cases offered above illustrate the range of situations that have been described as sexual harassment. Further, workplace seminars drive home the point that swimsuit calendars, crude language, jokes with sexual content, and compliments about a co-worker's appearance are invitations to legal action.5 Many other words have such broad usage (the word game is Wittgenstein's chief example6), but we are dealing with much more than a linguistic issue here. It is my contention that many of the difficulties which we have expe rienced in attempting to evict sexual harassment from the workplace have been a direct result of our inability to explain just what sexual harass ment is.

Journal of Business Ethics 17: 1171-1177, 1998. ? 1998 Kluwer Academic Publishers. Printed in the Netherlands.

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1172 M.J. Booker

As a legal matter, sexual harassment in the United States began with Barnes v. Costle in 1977.7 In this case, it was ruled that Title VII of the Civil Rights Act of 1964, which outlawed

workplace sexual discrimination, applied in the case of a woman who was fired from her place of employment for refusing to have sex with her supervisor. The United States Supreme Court verified the legal construction of sexual harass ment in 1986 in the case of Meritor Savings Bank v. Vinson.s Sexual harassment was initially conceived of as a sub-category of workplace discrimination. The Equal Employment Opportunity Commission established guidelines on November 10, 1980, to spell out just what the federal government understood as sexual harassment:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when

(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an indi vidual's work performance or creating an intimi dating, hostile or offensive work environment.9

In brief, the EEOC guidelines make two general categories of sexual harassment. The first is usually labeled the quid pro quo element, which declares it illegal to propose or demand any sexual services in exchange for employment, promotion, or in order to retain one's employ ment. This is what points (1) and (2) in the above definition prohibit. The second category, described in point (3), is that of the hostile work environment. It is this element of the EEOC guidelines which has generated the most legal and legislative dispute. The courts have ruled that this provision may - depending on undefined circumstances - make illegal sexual conversation, flirting, sexual jokes, posters and calendars which are deemed to be offensive, disparaging, or "unwelcome."

This uncertainty is not a minor problem. I must concur with Lon Fuller's assertion that it is

absolutely crucial that laws must be understand

able, and that laws must provide adequate pre scriptive guidelines so that a citizen can fulfill their requirements. "The desideratum of clarity represents one of the most essential ingredients of legality".10 Even authors who defend the EEOC guidelines admit that there is no way to clearly define just what sorts of behavior consti tute sexual harassment.11 In its most recent ruling, the United States Supreme Court ruled that there is no precise test for what constitutes sexual harassment.12 If we take Kant's maxim that "ought implies can" seriously, it follows that it is meaningless to demand that someone do the impossible ? and it is impossible to adhere to nebulous regulations.

Insofar as there is a standard for what consti

tutes harassing behavior in the EEOC guidelines, it is one of subjective victimization. The key

words in EEOC regulations are "unwelcome" and "offensive." The wording of the EEOC guidelines is such that one might posit that even quid pro quo harassment is not harassment so long as it is (somehow) welcomed and deemed inoffensive. One article written for business supervisors states, "It's important to understand that sexual harassment must be defined in terms

of its effect on the recipient".13 This analysis appeals strictly to the reality of individual expe rience, and seeks to provide maximal protection for the victim of sexual harassment. As a psy chological phenomenon, sexual harassment is equivalent to any subjective experience of sexual harassment.

Unfortunately, this standard is of essentially no prescriptive value. How is a person to avoid inflicting offense? Any interaction, as we should all know from experience, has at very least the potential for misinterpretation, and hence a potential for offense. This is not to claim that all cases of sexual harassment are produced by failures in communication and missed social cues;

certainly there are deliberate and vicious injus tices which people perpetuate against each other. But this definition does not offer any useful direction in assessing just what constitutes acts which merit proscription. It reduces our under standing of sexual harassment to that of the lowest common denominator, to that of the most easily offended individual.

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Can Sexual Harassment be Salvaged? 1173

Michael Weiss and Cathy Young have offered the following analogy. "It is comparable to replacing speed limits with a law under which one could be fined for driving through a neigh borhood at any speed which made some of its residents uncomfortable".14 Consider for a

moment: How could one respond to such a law? A conscientious citizen might drive at a crawl through such a neighborhood. Others might be offended by the law and openly flaunt it. Another solution - and likely the first one that we would likely consider if it were feasible - would be to avoid that neighborhood. This one of the unin tended consequences of sexual harassment regulations; many employers are beginning to undo decades of progress in integrating women into the workforce so as to minimize their exposure to harassment liability. Documentation of such policies is, by its nature, hard to come by. After all, sexual discrimination in the work place is illegal. However, privately some employers are willing to discuss it, and a few individuals are willing to publicly express their concerns.

The vagueness of the sexual harassment law, combined with our current litigation explosion, is a frightening prospect for small businesses. We are now financially liable for sexually offensive verbal behavior, even if we don't know it is occurring, under a law that provides no guidelines to define "offensive" and "harassment." [. . .] The law is detrimental even to the women it professes to help. I am a feminist, but the law has made me fearful of hiring women. If one of our cooks and managers ? or my husband or sons - offends someone, it could cost us $100,000 in punitive damages and legal expenses.13

Is this an overreaction? On might well suggest that it is possible to "avoid that neighborhood" by, instead, avoiding behavior which can produce offense. Why can't we simply empty the work place from all non-professional conduct? While "zero tolerance" policies might appear inviting as a solution to sexual harassment in the work

place, they produce their own forms of sexual discrimination. The chilling effect of a zero tol erance policy means that socializing and social conversation, especially that between the sexes, is prohibited. As a consequence, women in the

workplace become systematically segregated from the casual exchanges which serve as the milieu of networking. The glass ceiling becomes opaque. It is no small irony that the Civil Rights Act of 1964 has come to demand discriminatory behavior.

Can sexual harassment be salvaged? If we can agree that justice demands that men and women have no artificial constraints on their ability to work and to succeed in the workplace, then we can find a foundation for opposing sexual harass

ment in the workplace. Surely equal opportunity precludes "... a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being able to work and make a living . . ,".16 The task at hand is to establish the realistic boundaries on behavior which such an assertion demands, boundaries which will have the effect of eliminating one category of artificial constraint on success in the workplace. A central challenge will be to divorce sexual harassment from the core concept of unwelcome ness, a concept which provides no prescriptive guidance and which draws sexual harassment so broadly that all social interactions run the risk of crossing its invisible line.

Let us begin by examining the phrase sexual harassment. As perplexing as it may sound, under present EEOC guidelines sexual harassment need neither be sexual nor harassment. The word harassment describes persistent efforts to wear someone down. Under EEOC guidelines, a single offensive incident in enough to constitute harassment, and so harassment need not be harassment. As for the component of sexuality, the following behaviors have been described as ones which might constitute sexual harassment: leering, stares or gestures; repeated requests for dates; unwelcome touching or hugging; sabo taging women's work; exaggerated or mocking "courtesy;" leaning over or invading a person's space; excessive attention in the form of love letters, telephone calls or gifts.17 Only by the farthest stretch of language might hold all of these activities to be sexual.

The most obvious meaning that sexual harass ment might have is to be parallel to phenomena

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1174 M.J. Booker

like racial and religious harassment. We have little trouble describing those situations; they are those in which a person is told that they are not welcome in a workplace (or other setting) by hostile and demeaning acts and language. The message, "we don't want your kind around here," is accompanied by an effort to make the envi ronment unpleasant enough to cause the person to choose to leave. The case of Kate Taylor, offered at the beginning of this paper, fits this model well. Yet a concerted effort to evict women from the workplace is not normally what is meant by sexual harassment; the paradigm of sexual harassment is a cartoon image of the slobbering executive chasing his secretary around his desk.

A terminological distinction is helpful here, a distinction which I will borrow from Louise Fitzgerald. Fitzgerald uses the term gender harass ment to describe situations analogous to racial or religious harassment, situations where the oper ational message is "we don't want your kind around here." This fits well with the intent of the

Civil Rights Act of 1964. Fitzgerald uses this term more broadly, however, than I wish to here. "Gender harassment [. . .] refers to a broad range of verbal behavior, physical acts, and symbolic gestures that are not aimed at sexual coopera tion but that convey insulting, hostile, and degrading attitudes about women".18 Attitudes may not be dictated by law, though behaviors can be. A racist can coexist in the workplace with someone whose race they do not like if they constrain their behavior. Gender harassment must

be understood as something more than private hostilities. Further, a single event which produces offense or which signals disrespect is not adequate to constitute harassment.

Gender harassment conceptually escapes the issue of welcomeness.

This situation can be compared to instances of racial harassment. There is no requirement in such cases that a claimant must demonstrate that racial

harassment is "unwelcome" in order to support the case. It is, in fact, difficult to conceive of an instance when a target of racial harassment would consider the behavior desirable, yet the same does not hold true with respect to sexual harassment.19

S. Gayle Baugh is speaking more broadly here of all kinds of sexual harassment (i.e., her remarks are not narrowly confined to gender harassment), but they apply well to the issue of gender harass ment. Her comments, however, lead us into the more general question of sexual harassment, understood as our hapless secretary attempting to escape her employer. How can we define sexual harassment without talking about welcomeness? Consider Baugh's tacit question: Could sexual harassment ever be desired? If sexual harassment is defined as unwanted sexual advances, then it is a tautology to say that no one wants to be sexually harassed. The behaviors which might constitute episodes of sexual harassment are not, as such, objectionable. Do people ever want to be touched? Do people ever want to be sexually propositioned? Do people ever want to hear ribald jokes? Do people ever want to be asked out on dates? Do people ever want to receive gifts? Do people ever want to be kissed? The answer to all of these questions is, quite obvi ously, sometimes they do. What then separates episodes of sexual harassment different from events which are not objectionable?

One way to understand the wrongness of sexual harassment is to focus on the absence of

consent. Thomas Mappes states that the way to distinguish moral from immoral sexual interac tions is to look for informed consent, devoid of deception or coercion.20 The core difference between rape and consentual sexual relations seems reasonably delineated in this way. Mappes' position is appropriate in part, but also inade quate when analyzing sexual harassment. Some cases of sexual harassment are coercive, but others

are more accurately understood as presumptive. The picture of sexual harassment becomes complete if we add coercive sexual harassment and presumptive sexual harassment to the category of gender harassment.

Gender harassment is an attempt to liberate the workplace from the offending gender, but sexual harassment does seem to be tied to "sexual cooperation," as Fitzgerald puts it. The classic sexual harasser wants to have women in the

workplace as his sexual minions. While cooper ation is expected, it is accompanied by a coercive power dynamic. Quid pro quo harassment is one

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Can Sexual Harassment be Salvaged? 1175

example of blatant coercive harassment, but explicit threats and promises are certainly the exception rather than the rule. It is my con tention that the power dynamic inherent in any superior/subordinate relationship - employers and employees, teachers and students, clergy and parishioners, doctors and their patients, military leaders and those beneath them in the chain of

command - makes it inappropriate for the initiation of intimacy in those contexts. Put simply, a boss shouldn't ask out one of his or her employees, even if such an offer is likely to receive a favorable response. Consent is not a pure phenomenon, and human rationality is only tangentially a component of human relationships and human sexuality. As a college teacher, I can't imagine that it would ever be appropriate for a teacher to ask out someone who they had a responsibility to assign a grade to. It wouldn't be appropriate even if their intention was to estab lish a long-term relationship, even if the teacher didn't promise an unearned "A" for cooperation with their desires, and even if they didn't threaten an "F" for non-compliance. The hypothetical student could not reasonably know whether or not the teacher might retaliate against a failure to cooperate with their wishes.

A rule against coercive sexual harassment states that, because justice demands that men and

women have no artificial constraints on their ability to work and to succeed in the workplace, it is not permissible for superiors to seek intimacy

with their subordinates. This is not as clearly connected with the language of the Civil Rights Act of 1964 as gender harassment is, but ties into issues of discrimination in the workplace because the real-world wrongs of coercive sexual harass

ment act as a defacto deterrent to women's success in the workplace. If a gender-neutral construc tion of this rule prevents other harms to other

workers, so much the better. The final category of harassment is that of pre

sumptive sexual harassment. This category of harassment requires an examination of the concept of intimacy, a word used without elab oration in the previous section. Intimacy is a non-reducible concept. For each of us there is a realm of private interaction, of touch and of language, which only a limited number of people

are allowed to enter. Friends, family, and lovers are allowed an access to us which the general public is not permitted. Intimacy operates by degrees, so that not all of our intimate associates have equal access to us. Intimacy is similar, but substantially different, from consent. Consent is a choice; it is a declaration of permission. Intimacy is a character of relationship, one which takes the place of consent.

Presumptive sexual harassment takes place when an individual presumes the existence of an intimate relationship which does not exist. Presumption of intimacy includes a unilateral decision that touching, the use of nicknames, discussion of one's personal life, use of innuendo, vulgar language and so forth are appropriate with a given person. Again, as a real-world issue, this is a problem which women confront more often and more extremely than men do. Accounts abound of female employees being "Sue and

Mary" when male coworkers are "Mr. Smith and Mr. Johnson." Men receive firm handshakes but women get ersatz-Continental kisses on the cheek. Male coworkers accost their female coun

terparts with discussions of their private lives. This becomes an undue burden in the workplace by virtue of the fact that workers may be trapped by the necessity of employment to endure behav iors which they would otherwise simply avoid. The co-worker is a captive audience, as it were.

Presumptive sexual harassment is at very least an obnoxious phenomenon, and it can produce psychological stress and emotional harm. However, once again I wish to avoid a subjec tive analysis of harms. Presumptive sexual harass

ment can be a product of disrespect, desire, social ineptitude, or miscommunication. Again, none of this should be relevant. The behaviors them

selves, and not attitudes or experiences, need to be spelled out. Presumption of intimacy is wrong, but the first step in dealing with it is to notify the offender that he or she has crossed uninvited into private territory. If the behavior persists, then an internal institutional remedy should be used. If institutions cannot address

unwarranted presumptions of intimacy, then legal recourse may become necessary. The magnitude of the presumption, not the intensity of the feelings it engenders, needs to govern the nature

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1176 M.J. Booker

of the response. It is important to note that the attempt to create intimacy is not, of itself, objec tionable. What is objectionable is continuing to engage in behavior which an individual has declared off limits. "Please stop doing x" must be honored, even if we do not draw our own lines of intimacy in that way.21

The three categories offered here of gender harassment, coercive sexual harassment and presumptive sexual harassment all describe phe nomena of sexual harassment without recourse

to a standard of welcomeness and the problems which it engenders. Each defines its content in behavioral terms. Some marginal cases are excluded. Jonathan Prevette's story made it into the international media because the use of the

label "sexual harassment" was so jarringly absurd. An overly broad definition of sexual harassment subjects the concept to ridicule. A successful def inition of sexual harassment will be one which

aids the progress of women in the workplace rather than segregates them into a Victorian-era set of sensibilities and gender assumptions.

Acknowledgements

I would like to acknowledge the contributions of three of my Business Ethics students, Barbara Cline, Arnel Murr, and Dana Seaton, on my thinking on this subject.

Notes

1 'Concord F.D. Loses Sex Harass Suit', www.nhbi.com/newsbrfs/960202/BRIEF5.htm, Jan. 7, 1998. 2 'Detroit News Readers Share Their Feelings About Jonathan's Kiss', Detroit News, October 4, 1996. 3 Grimsley, Kirstin D.: 1996, 'Sexual Harasser Can

Often Prey on Many Victims', Washington Post (December 22). 4 Hentoff, Nat.: 1993, 'A "Pinup" of His Wife',

Washington Post (June 5). 5 Raphan, Melissa and Heerman, Max.: 1997, 'Eight Steps to Harassment-Proof Your Office', HRFocus (August), pp. 11-12.

6 Wittgenstein, Ludwig: 1958, Philosophical Investigations (Macmillan Publishing Company, New York), pp. 32e-34e. 7 Barnes v. Costle, 561 F2d 983 (CA-DC 1977). 8 Meritor Savings Bank v. Vinson, 477 US 57 (1986). 9 29 CFR 1604.11. 10 Fuller, Lon L.: 1964, The Morality of Law (Yale

University Press, New Haven), p. 63. This idea can be found even more strongly expressed in Sir Thomas More's Utopia: "The Utopians think it most unjust that any men should be bound by laws that are either too numerous to read or too obscure for anyone to understand."

11 Vaughana Macy Feary makes the following obser vation: "... trying to set out necessary and suffi cient conditions for sexual harassment is a thoroughly futile enterprise. The futility of that enterprise, however, does nothing to support the myth that the concept of sexual harassment is hopelessly murky. We are clear enough in paradigm cases about what people mean when they claim they are being sexually harassed. [. . .] Of course, in addition to paradigmatic cases of sexual harassment identified by law, there are also borderline cases about which corporations, and in some cases the courts, will have to make decisions."

Feary, Vaughana Macy: 1994, 'Sexual Harassment: Why the Corporate World Still Doesn't "Get It'", Journal of Business Ethics 13, 649-662, 657-658. 12 Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993), p. 371 13 Cohn, Carole and Andy Mozenter: 1994, 'Want to Avoid Workplace Sexual Harassment? Learn the

Meaning of R.E.S.P.E.C.T.', Supervision 55(3) (March), 13. 14 Weiss, Michael and Cathy Young: 1996, 'Feminist Jurisprudence: Equal Rights or Neo-Paternalism?', Cato Policy Analysis 256 (June 19). 15 McCarthy, Sarah J.: 1991, 'Cultural Fascism', Forbes (December 9), 116. 16 Henson v. City of Dundee (1982). 682 F.2d 897, 29 FEP Cases 787 (11 Cir.). 17 Examples taken from "The Practical Definition of Sexual Harassment," oshpr.ucsf.edu/tutorial/defini tions.html, January 4, 1998, and from "What To Do If You Or Someone You Know Is Sexually Harassed,"

www.feminist.org/911/harasswhatdo.html, January 5, 1998. 18 O'Donohue, William: 1997, Sexual Harassment: Theory, Research, and Treatment (Allyn and Bacon, Boston), p. 10. 19 Baugh, S. Gayle: 1997, 'On the Persistence of Sexual Harassment in the Workplace', Journal of Business Ethics 16, 899-908, 904.

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Can Sexual Harassment be Salvaged? 1177

20 Mappes, Thomas A. and Jane Zembaty: 1992, Social Ethics: Morality and Social Policy (McGraw-Hill, Inc., New York), pp. 203-216. 21 A guide to making this work can be found in Andrea P. Baridon and David R. Eyler: 1994, Working Together: The New Rules and Realities for Managing Men and Women at Work (McGraw-Hill, Inc., New York).

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