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       Chapter 7. Politics, Politicians, and Sexual Harassment

       The Packwood Scandal

       What About Bill?

       Sexual Harassment in Congress

       The Culture of Politics

       Chapter 8. Sexual Harassment Then, Now, and After #MeToo

       Harassment under the Radar

       The Limits of Law

       Changing the Culture

       The Movement and the Moment

INTRODUCTION

      An office assistant feels uncomfortable when her boss comments on her clothes and asks personal questions about her private life. A factory worker hates it when the foreman puts his hands on her while bending over her workstation. An aspiring film director is expected to have sex with a producer to advance her career. An undocumented domestic worker is groped by her employer. A graduate student is surprised and offended when her dissertation supervisor kisses her in his office. A woman training to be an auto mechanic must look at pictures of naked women every day when she eats lunch in the break room. Examples of sexual harassment? How many more come readily to mind?

      During the last several years, the #Me Too Movement and high profile incidents have drawn public attention to stories of girls and women (and some men) who have experienced unwelcome sexual behavior that interfered with their work or their education. But although the movement is recent, almost everyone would agree that there is nothing new about the phenomenon. Long before sexual harassment had a name—and the term sexual harassment is only about 40 years old—women knew what it was like to be subjected to unsolicited and unwanted advances, both verbal and physical. In a patriarchal society where political and economic power is unevenly distributed along gender lines, there is nothing surprising in the fact that those who enjoy a ←1 | 2→disproportionate share of that power would engage in behavior that perpetuates their advantages and hinders those in subordinate positions. Men have not only dominated the economic sector but they have also made the laws, enforced the laws, and interpreted the meaning of laws. Along with many other issues brought to light by feminists in the late twentieth century, sexual harassment emerged from the shadows was named and given a legal definition. This process would not have taken place without women who came together and shared their workplace experiences, without women who formulated legal arguments that situated those experiences within a framework of discrimination based on sex, and without women and men who were willing to critically examine the cultural and structural context in which sexual harassment exists.

      This book recounts chapters in the history of sexual harassment—times when public attention focused on stories that gave a human face to the problem. After an introduction that provides definitions of relevant terms and examines how feminist lawyers and activists have developed the concept of sexual harassment as a form of discrimination, the following sections will consider major Supreme Court cases. In Meritor Savings Bank v. Vinson (1986), the Court found that both quid pro quo harassment and a hostile work environment violated Title VII of the Civil Rights Act. As the foundation case in sexual harassment law, Vinson merits a chapter of its own. The next chapter looks at several subsequent cases. Harris v. Forklift Systems (1993) held that a victim need not demonstrate harm—psychological or otherwise—to make a claim of sexual harassment. A hostile environment is one that a “reasonable person” would find abusive. The Court addressed same sex harassment in Oncale v. Sundowner Offshore Services (1998), holding that a hostile environment need not be based on heterosexual desire but could consist of a general hostility expressed in sexual and derogatory terms. Faragher v. City of Boca Raton (1998) and Burlington Industries v. Ellerth (1998) dealt with the issue of employer liability for sexual harassment by employees. Chapter 4 will analyze the story of Anita Hill and her claims against Clarence Thomas and the emergence of a national dialogue on the topic of sexual harassment. The following chapter will examine examples of harassment within the academic world addressed under Title IX of the Civil Rights Act that prohibits discrimination in education. Chapter 6 provides illustrations of how sexual harassment persists in the military from the Tailhook scandal to the present. Chapter 7 looks at political cases and scandals, including Senator Bob Packwood, President Bill Clinton, and President Donald Trump. The final chapter will examine ←2 | 3→the #MeToo movement and consider where the issue stands at present in law and in the larger culture.

      I have had a long-standing interest in issues of gender and justice. I have been especially concerned with how women—long excluded from the political process—have created movements of public awareness leading to legal changes to address offenses that had perpetuated their subordinate position. Second Wave feminists in the 1970s and 1980s shared their experiences and brought attention and new understanding to issues of rape and domestic violence, crimes that a patriarchal society had not taken seriously enough. That generation also was the first to define sexual harassment as a violation of women’s right to be free from discrimination in employment and education. They and their successors have engaged in the effort to bring attention to the pervasiveness of sexual harassment and to change attitudes from thinking of it as “business as usual” to seeing it as behavior that is shameful and unacceptable as well as prohibited by law. In the 1990s and early 2000s, Third Wave feminists focused on intersectionality (the confluence of gender, race, and sexual orientation) as elements of oppression. The Anita Hill story brought awareness that social, political, and racial discrimination overlap with gender. The 1990s also saw the passage of the Violence Against Women Act based on the analysis that structural gender animus, not just individual actions, accounts for a variety of behaviors hostile to women. More recently, younger feminists (a Fourth Wave) not only employ social media as a means to communicate and promote their views, they have expanded the analysis of privilege to encompass sexual identity as well as the usual categories associated with entitlement. This generation also seems much more comfortable with expressing anger with both the power structure and with everyday sexism. With each succeeding wave of feminism, there has been increased emphasis on culture as a focus of discrimination and therefore a greater attention to the need for cultural transformation as well as legal reforms. Through all the historical contexts, although men can be targets of sexual harassment and everyone, especially LGBTQ persons, can and do experience hostile environments at work and school, the major focus of this book is sexual harassment law as it pertains to women.

      This is a book I wanted to write because, in my view, students and other informed people need to understand sexual harassment as a serious issue that may well have an impact on their lives and those of their friends and family. Public attention may focus on a Harvey Weinstein or on the Access Hollywood tape where Donald Trump bragged about groping women, but because the issue ←3 | 4→is so pervasive most victims will be our peers and colleagues, our neighbors, daughters, and cousins. Only a tiny percentage of sexual harassment targets will seek legal redress in the courts and only a small number of them will win a legal judgment. Thus if we want to grapple with the problem, it is preferable of figure out how to prevent and deter the behavior, rather than relying on the courts to punish the perpetrators after the fact. An end to sexual harassment requires an understanding of the cultural dynamics that allow it to exist and of strategies to challenge those cultural dynamics.

      A first step to understanding the issue is defining the terms. A portion of this book will be devoted to the evolution of the law of sexual harassment—how the courts and the public came to understand it as a form of discrimination in employment and education. However, other terms are often confused or conflated with sexual harassment. Although most commentators would agree that there is a continuum of behaviors that fall under the heading of “sexual misconduct,” it is worth noting that at one end of the continuum one finds verbal comments that insult and degrade the target while at the other end of the continuum is sexual assault. Some perpetrators engage in behavior that runs the whole gamut (Harvey Weinstein comes to mind as a famous example); others confine themselves to disrespecting women in the workplace and making the targets’ lives painful and professionally uncomfortable. The latter conduct can create the hostile environment that

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