I have to begin with a confession: The topic of sexual harassment
wearies me. I've done my best to avoid this 1990s cultural cataclysm as
much as possible. By using extreme caution when opening the newspaper or
turning on the television, I've managed to avoid precise knowledge of what
revealing detail of presidential anatomy Paula Jones possesses. I'm still
confused about why someone would tape telephone conversations with a
friend. If I didn't think it would destroy my cultural credentials, I
would even confess to not having watched a single moment of the 1991
Anita Hill-Clarence Thomas hearings.
Given this attitude, I spent much of
this weekend's Sexual Harassment symposium at Yale University longing for
some green, remote planet -- a planet with no America, no lawyers and no
talking heads -- where words like "unwelcomeness," "accountability" and
"dispositive" have never been uttered.
The symposium -- a gathering of some 40 law professors, federal
judges and other experts on sexual harassment law including Catherine MacKinnon, a Yale J.D./Ph.D. -- marked the 20th anniversary of the
publication of MacKinnon's monograph "Sexual Harassment of
Working Women." Groundbreaking though it was, MacKinnon's work,
with its dedication to a stark male/female opposition,
partly explains my distaste for the subject. On the one hand, we have
MacKinnon, for whom sexual harassment is just one more instance of the principle that men unilaterally and everywhere dominate women.
She has written that "male and female are created through the
erotization of dominance and submission. The man/woman difference and
the dominance/submission dynamic define each other." In her opening
remarks at the conference, she summed up her view of the achievements of
sexual harassment law in typically polemical terms: "Droit de seigneur
is dead. Women are citizens."
On the other hand, we have critics of sexual harassment like New Yorker writer Jeffrey Toobin, who seem to think that
the most likely victims of sexual harassment are men oppressed by the
law's scrutiny of sexual behavior. These two positions form the shrill,
point/counterpoint battle of the sexes that is what I object to about the
public debate over sexual harassment.
In that context, the academic seriousness of the symposium made a
refreshing change. Its 72 hours of citations of case law,
cautious policy recommendations and illustrative anecdotes erred, in
fact, on the side of sobriety. The opening session took place in a
wood-paneled, mullion-windowed auditorium filled with nicely dressed
academics. In her opening remarks, MacKinnon's fellow anti-pornography
activist, Andrea Dworkin, voice trembling with rage, decried the fact that
"when [in prosecuting pornography] we try to go after a bunch of pimps,
everyone rears up and says no, no, no." The audience clapped politely. Later, when appellate Judge Guido Calabresi paternally reminded the
audience that "women have represented some things that have been essential
to society," the audience clapped politely again.
- - - - - - - - - - - - - - - - - - - - -
But this very gentility, however soothing, belies the volatility
of opinion on sexual harassment. From the reverence with which speaker
after speaker at the symposium paid her or his respects to MacKinnon, for
example, you wouldn't have known that many pundits view her as a cross
between Jesse Helms and Valerie Solanas. After all, MacKinnon first
became publicly recognized not for her work on sexual harassment, but for
her anti-pornography activism. The Minnesota anti-pornography ordinance
that she co-authored with Dworkin in 1983 defined pornographic
representation as "a practice of sex discrimination, a violation of
women's civil rights, the opposite of sexual equality." In other words,
pornography and the unwelcome workplace proposition are, in MacKinnon's
schema, the same kind of violation of women's civil rights. Since her
anti-pornography stance makes liberals generally, and First Amendment
advocates in particular, very uneasy, her association with sexual
harassment law probably contributes to its current unpopularity.
This conference certainly demonstrated the availability of sexual
harassment law for parody. The legal doctrine produces ludicrous
hypotheticals of the kind lawyers seem to love. Take the problem of the
"bisexual harasser," for example. Is it discrimination based on sex if a
bisexual supervisor sexually harasses male and female subordinates
equally? Or consider the six scenarios of ascending complexity presented by William Eskridge, a Georgetown law professor.
These scenarios culminate in the case of "Mechelle Vinson, bank
teller, [who] is groped and threatened with rape by her bank
supervisor, Sidney Taylor, after he finds out that Mechelle is a
male-to-female transsexual." Has Taylor harassed a woman? Is sexual
difference necessary for sex discrimination? If so, are we sure we
know what sexual difference is?
More seriously, as Eskridge also pointed out, the ambiguity of the
word "sex" in "sexual harassment" can make apparently
non-sexualized forms of harassment, such as letting the air out of a
co-worker's tires, hard to adjudicate. Does the word "sex" refer to
gender differences or erotic interaction?
More recent criticisms of sexual harassment law focus not on its
conundrums, however, but on allegations that it interferes with routine
sexual interchanges. This criticism has been made not only by journalists
such as Toobin, but also by feminist academics such as Jane
Gallop, herself once the target of sexual harassment charges. Symposium
participants spent a lot of time attempting to defuse and reverse this
claim. MacKinnon suggested that it's critics of sexual harassment law,
not its advocates, who assume that "if sex must be equal, the end of sex
must be at hand." Dworkin went for sarcasm, characterizing
opponents of sexual harassment law as "millions of men [who] want to have
a young woman in the workplace to suck their cock." Others, like
social psychologist Louise Fitzgerald, look to experimental data that
suggest that "men are more likely to perceive sexual motives and
So yes, sexual harassment law is open to confusion and parody. It
probably doesn't help that one of its architects is a polemicist and
provocateur, who began "Sexual Harassment of Working Women" with the
statement: "Intimate violation of women by men is sufficiently pervasive in
American society as to be nearly invisible." Nevertheless, after
listening to 72 hours of earnest legal discussion, I did leave
feeling that sexual harassment exists, harms women predominantly and can
and should be redressed by law.
It may be hard not to hold the advocates of sexual harassment law responsible for cluttering the airwaves with unsavory and ultimately tedious details of everything from presidential priapic anatomy to pornographic preferences in the highest court in the land; with creating a new and ugly plot line in that long-running soap opera of "he said, she said"; with providing new occasions for litigation and lamentation. But as MacKinnon herself wrote over a decade ago -- in a formulation reiterated by many of the conference speakers -- "Sexual harassment, the event, was not invented by feminists; the perpetrators did that with no help from us."