The following by Joanna L. Grossman, the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law, first appeared in the Dec. 19, 2017, edition of Verdict.
January 5, 2018
By Joanna L. Grossman
There will be many stories to tell about the year 2017—many of them tragic—but certainly one of the most important ones will be about the year America started to reckon with its pervasive culture of sexual harassment and assault. Hardly a day goes by without news of another powerful man’s downfall—and a trail of victims telling their long-secreted stories of working for them under conditions that were at best discriminatory and oppressive, and, at worst, downright dangerous.
What can we learn from this relentless flood of stories?
What’s New, What’s Not
Many are surprised by the seemingly endless allegations of sexual misconduct. Is there an epidemic of harassment? No more than there ever was. Sexual harassment has been a pervasive problem in the American workplace, as well as in housing, education, the judicial system, on the street, and all other sectors of society, as far back as we look.
The term “sexual harassment” dates only to the late 1970s when a popular women’s magazine, Redbook, published results of a survey in 1976, entitled What Men Do to Women on the Job, which found sexual comments and advances to be pervasive in the workplace. This was the first of several surveys that would reveal how many women suffered sexual harassment as an everyday part of work. The federal government, the nation’s largest employer, published results of a comprehensive survey in 1981 reporting that four in ten federal employees had experienced harassing behaviors in the prior two years. This survey was repeated several times at seven-year intervals, and one surprising finding was that the rate of harassment was always similar even though social norms changed and the law began clearly to prohibit harassment at work.
Two components of the modern story are “new,” however. First, women are showing greater willingness to come forward and report harassment. No matter how unwelcome sexual harassment is, study after study has shown that victims rarely file formal complaints after being harassed. Empirically, doing so is in fact the least likely response of a woman to an incident of sexual harassment at work. Victims tend to complain only about severe harassment, and only when they’ve exhausted all other avenues. As discussed below, women who have been sexually harassed forego complaining. They rightly fear retaliation from the harasser or their workplace, and they often worry about being socially ostracized at work and even about damaging the harasser’s career. At the same time, victims tend to be feel that complaining is futile—that no action will be taken that will make the victim’s situation better. The lack of hope for successful redress provides little by way of counterweight against the justifiable fear of adverse consequences.
Second, men facing credible accusations of harassment are suffering consequences. Employers have a long history of taking insufficient action—often no action—despite credible evidence of harassment. Some of their inaction can be explained by the infrequency of complaints, but even when they do investigate complaints, employers tend to be biased against finding evidence of discrimination, to recast harassment and discrimination as a problem of interpersonal conflicts that might justify intervention but not discipline, and to overlook misconduct when the harasser is too valuable to lose.
So why the current cascade of complaints?
We are experiencing a cultural moment. Despite the powerful deterrents to speaking out, women are coming forward, in droves, to tell their stories. It’s hard to explain why that moment is now, but the dam broke. It could be the power of the anti-Trump resistance movement, which has mobilized women around the country to organize, protest, and stand up for themselves. It could be the raunchy and disturbing nature of the allegations in the first few stories to break. It could be that the victimization of celebrities, at the hands of Harvey Weinstein and James Toback, brought the issue into our consciousness more clearly. It could be any combination of things. But whatever the catalyst, there can be no doubt that this chorus of voices, speaking out against sexual misconduct, is noteworthy.
The #metoo movement, which has led millions of women to share their stories on social media, is both a reflection of this moment and perhaps a tool for change. As more women come forward, it becomes easier for other women to do the same. The sheer number of allegations has made some people more willing to believe women. It shouldn’t take a chorus, but sometimes it does. And the volume of complaints puts pressure on institutions to take harassment claims more seriously. Employers virtually all have policies and procedures in place, yet harassment appears to be epidemic. They need to change their practices to be more effective, and this should lead to a lessening of the sense of futility that victims feel and a reduction in the risk of retaliation. But there is no guarantee that the moment will become a movement, or that it will produce a cultural shift that fundamentally changes the way we deal with sexual harassment in our society.
What’s Wrong with the Standard Apology?
The powerful men that have been fired or suddenly retired because of sexual misconduct in recent months—from Matt Lauer to Harvey Weinstein to Judge Alex Kozinski—have all publicly apologized. The standard apology is cliché and includes statements that range from silly to offensive. One particularly outrageous claim is that the harasser/assaulter did not understand his behavior to be wrongful at the time, but he now understands it is unacceptable. This is outrageous due to the severity of the conduct at issue in so many of the cases and the number of decades since we have reached consensus about the illegality and wrongfulness of the exact conduct of which they were accused.
Although federal courts struggled in the 1970s to understand why sexual harassment at work was a type of discrimination, they came around on that issue and soon reached consensus that changes the terms and conditions of employment because of sex. In 1979, Catharine MacKinnon published her groundbreaking book, The Sexual Harassment of Working Women: A Case of Sex Discrimination, in which she cogently explained why sexual harassment should be treated as actionable discrimination and developed a set of substantive principles to define it. She set forth two types of sexual harassment—quid pro quo and hostile work environment. The following year, her principles were adopted more or less wholesale by the EEOC, and the courts came around soon thereafter. In 1986, the Supreme Court gave the green light to the approach set out by the EEOC, holding, in Meritor Savings Bank v. Vinson, that both types of harassment constitute actionable forms of intentional discrimination The Court decided two other cases in the formative years of harassment law, in which it spoke to the question of what constitutes harassment. Later cases hammered out the contours of sexual harassment law, with no wavering on its illegality.
Public awareness that sexual harassment is a form of unlawful discrimination came in spurts. Those early surveys brought some attention to the issue, but our collective consciousness was refocused on the issue in 1991, when Anita Hill accused Clarence Thomas of sexual harassment during his Supreme Court confirmation hearings. Although he was confirmed to the Court by the US Senate, the airing of her allegations had a lasting impact on our awareness of these issues. She left us with a common language for talking about sexual harassment—and an image of both a harasser and a survivor. Almost ten years later, the Supreme Court decided two important cases about employer liability for sexual harassment and two about liability within educational institutions. Although few Americans probably know the ins and outs of those cases, they spurred the widespread adoption of anti-harassment policies and procedures and an entire industry of sexual harassment training. Though widely mocked and disparaged in offices and in television sitcoms, these policies and trainings were so common and highly publicized that very few people could claim they knew nothing of sexual harassment or its prohibition.
Moreover, regardless of individuals’ knowledge of law, or even their exposure to anti-harassment policies and procedures, they show a remarkable ability to identify sexual harassment in studies, particularly at the more severe end of the spectrum. Almost without exception, the behavior for which these men have apologized falls in the range that can be universally identified as wrongful.
Other aspects of these apologies warrant criticism as well. No, humor is not an excuse. No, therapy is not going to cure you of the desire or willingness to impose yourself on co-workers. No, it doesn’t matter whether you intended to offend or harass the women. And, no, Judge Kozinski, you didn’t treat your male and female clerks equally even if you asked both to watch porn in your office.
Where Do We Go from Here?
Reporters keep asking me (and others) whether we are experiencing a cultural shift in dealing with sexual misconduct. Whether the moment becomes a shift will turn on how we react to it. The pervasiveness and severity of harassment women face at work is a symptom of broader dysfunction in our society. And the institutions that have allowed it to go unchecked are part of a system that has favored cosmetic preventative measures rather than effectiveness, and window dressing rather than effectiveness. True change will only come when institutional actors decide to hold themselves accountable for the way women are treated.