LITMIR.BIZ

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as important as naming sexual harassment was providing legal reasoning to establish its illegitimacy. Based on the notion that women had a “right to work free of unwanted sexual advances” advocates and activists developed the argument that sexual harassment was analogous to racial harassment and that both were forms of discrimination prohibited by civil rights law.¹⁴ Just as racial discrimination contributes to inequality and could keep members of minority groups out of the workplace, sexual harassment as a form of sex discrimination could keep women out of the workplace or relegate them to less desirable jobs. While those who refused to take sexual ←9 | 10→harassment seriously preferred to defend the conduct as just regular old hanky-panky, by contrast, feminist analysis emphasized “unsolicited, non-reciprocal male behavior that asserts women’s sex role over her function as a worker.”¹⁵ Catharine MacKinnon, the intellectual architect of legal definitions of sexual harassment focused on how it involves dominance, impersonal contempt, and entitlement and how it reinforces sexual inequality.¹⁶ In other words, just as rape is about power not about sexual attraction, sexual harassment is also more about power than about sex. Both serve as instruments in maintaining a patriarchal society.

MacKinnon quoted bell hooks who defined feminism as “the commitment to eradicating the ideology of domination.”¹⁷ Part of the feminist agenda meant recognizing that the world had been shaped by men, that they maintained the larger share of power and prestige and that nearly all laws ever made had been written and interpreted by men—presumably to maintain that power and prestige. If such conditions were to change and genuine equality between men and women were to be achieved, it must involve more than “formal equality”—the theory that similarly situated persons should be treated comparably, regardless of sex. Such a notion meant that to achieve equality women would be expected to assimilate to male norms, even though their situation was “relevantly different.”¹⁸ MacKinnon argued that far from being similarly situated, men and women lived in a world where most social institutions supported the status quo and were designed to perpetuate male privilege and female subordination. That subordination was maintained through force, social pressure, tradition, rituals, and customs.¹⁹ Sexual harassment was just one way of maintaining women’s subordination.

Definitions of equality and inequality are based on deciding whose perspective is considered valid. The importance of perspective is apparent in the history of race relations. In the 1896 Plessy v. Ferguson decision, the Supreme Court found that segregation was not a violation of the Constitution, In that ruling the justices held that any belief that separate accommodations implied inferiority existed only in the minds of African Americans.²⁰ The Court saw things differently in 1954 when they ruled in Brown v. Board of Education that segregation was inherently unequal.²¹ One might apply a similar analysis to sex equality law. Suppose rather than asking about sameness and difference between men and women, one were to ask about dominance and subordination, about gender hierarchy rather than gender comparisons? Such an inquiry would lead away from formal equality as an objective and would assume a different set of remedies.

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Gerald Torres agrees, noting that gender inequality was not something that exists in the hearts of individual people, but that it was “naturalized into the normal working of social institutions.”²² Formal equality is an inadequate approach as it views systematic injustice as prejudice or discrimination by individuals, rather than as something built into a patriarchal society. Thus, making gender inequality visible, as happens through efforts to eradicate sexual harassment, is not a matter of making women feel better but it is rather a way to change social reality.²³ Joan Hoff also contends that advocating equal treatment as if men and women were interchangeable overlooks the fact that gender is central to relationships of power. Women’s diversity often obscures the “oppressive commonality” of their experience that gender discrimination is about the power of men over women.²⁴ Like rape, pornography, and other violence against women, sexual harassment serves to maintain that power. The commonality of women’s experience with such institutionalized injustice serves to illustrate the “masculinity of the U.S. Constitution”²⁵ and the need for a feminist legal analysis.

MacKinnon points out that law can become a weapon for justice in dealing with sexual harassment as it is in addressing other forms of discrimination. A belief in justice, a conviction that the lives of “ordinary” people matter, can give law the power to bring about change.²⁶ She suggests three steps in a feminist legal approach: unmasking patriarchy; contextual reasoning; and consciousness raising. The process starts with the “woman question,” which asks how the law fails to consider women’s experiences and values and how legal standards disadvantage women.²⁷ In unmasking patriarchy, feminists try to expose the law’s unfairness in relying on differences between men and women in the distribution of social benefits. They reject gendered stereotypes as inaccurate and argue that where differences between men and women do exist, they do not justify burdening women in relation to men.²⁸ Feminists advocate viewing social disparities as structural problems and noting that bias is often institutional rather than merely individual and intentional.²⁹ Martha Chamallas also describes several “moves” that characterize a feminist approach to the law: “suspicion of sex-based distinctions and generalizations;” “uncovering implicit bias in neutral legal standards;” and “placing high value on women’s experience.”³⁰

      Part of the struggle for gender-based justice involves contextual reasoning—providing evidence from the lives of real women. As campaigns against rape and domestic violence have demonstrated, women’s collective experience with abuses based on male power can also shape the laws against sexual ←11 | 12→harassment. The current #MeToo and Time’s Up movements are ongoing examples of the strength of sharing incidents. Likewise, consciousness raising, which is also manifested in the contemporary movements, provides support to individuals and reveals the power of numbers across regions and social classes.

Because it is a manifestation of power and domination in the workplace, sexual harassment is not only a matter of individual injury but a form of group-based discrimination that reinforces women’s subordinate status. Not all women are affected in the same way by male power, but no women are unaffected by it. Not all women are the same, but “all are treated as women under male supremacy.”³¹ Thus seeing sexual harassment as simply the bad behavior of individuals obscures its roots in the identification of women as a group who have been and who remain marginalized. As Carrie Baker states, sexual harassment as a system of social control, male dominance, and patriarchy does not consist of isolated acts but is “consistent, systematic, and pervasive.”³² Sexual inequality plus material inequality add up to cumulative injuries that affect women as a group.³³ Women may be injured

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