Vicki Schultz, “Sex Is the Least of It: Let’s Focus Harassment Law on Work, Not Sex”

(The Nation, 1998; text p. 203)

1.       Main point: Sexual harassment is not solely (or even mainly) about unwanted sexual advances, but about more general sexism on the job

          a.       When people (including courts) think of sexual harassment, they think of sex

                    i.        Quid pro quo harassment

                              (1)     “A superior penalizing a subordinate for refusing to grant sexual favors”

                    ii.       Women being intimidated by sexual overtures

          b.       This is a mistake

          c.       Issue is sexism and sexual discrimination on the job

                    i.        This can involve sex but need not.

2.       What is sexism?

          a.       Unfair treatment that disadvantages women (or men)

          b.       Discrimination against women (or men)

          c.       Includes unwanted sexual advances, but involves much more

3.       Sexual harassment at work involves such things as:

          a.       E.g, paternalistic prerogative of male boss to punish employee for daring to step out of place as a woman

          b.       It is not about sex, but sexist failure to take women seriously

          c.       Withholding training and assignments women need to do job well

                    i.        Relegate women to menial duties

                              (1)     Who makes the coffee?

          d.       Protecting work for men:

                    i.        “Best work a preserve of male competence and authority”

                    ii.       Way for men to claim work as masculine turf

                    iii.      Drive woman away, brand them as inferior

                    iv.      Insure sex segregation in workplace

                              (1)     Reinforce gender differences

4.       Women who work in jobs traditionally held by men more likely to experience hostility and harassment

          a.       Female electricians harassed as women in men’s jobs; discourages women from staying in those jobs

                    i.        Male electricians stopped work rather than submit to authority of woman sub-foreman

          b.       Philadelphia police welcomed new female colleagues by stealing case files and putting lime on uniforms so it burned their skin

          c.       1/3 female physicians said experienced sexual harassment

                    i.        ½ said it had nothing to do with sex, but rather with being a female in traditional male field

5.       1993 supreme court case where company president suggested that a manager must have had sex with a client to land such an important account.

6.       Courts have exonerated serious sexist misconduct because it did not resemble a sexual come on

          a.       Union carbide case: dismiss harassment claim by woman whose foreman “picked on her all the time” and treated her worse than the men because he did not demand sex, touch her or make sexual jokes

          b.       Atlantic city convention center case:

                    i.        Court ruled against female electrician sub-foreman, even though men refused to work for her, made obscene gestures and stood around laughing as she unloaded heavy boxes

                    ii.       Union said never be a time for women to be foreman

                    iii.      She was removed from floor during Miss America pageant

                    iv.      Because nothing seriously sexual involved, this was not gender based discrimination and was not hostile work environment

7.       Not isolated case: Schultz did survey of 100s of hostile work env. cases and overwhelming trend was that courts disregarded non-sexual forms of harassment.

8.       Women in traditional female jobs also harassed

          a.       Competence denigrated, sexist forms of authority, humiliation and abuse

          b.       Objectified (not as sexual commodities) but as too worthless stupid to deserve respect

                    i.        Fit only for being controlled by others

                    ii.       “Stupid woman who have kids” “too fat to clean rooms” “dumb female who can’t read or write”

9.       Obsession with sexual misconduct also leads to overlooking pernicious harassment of men on the job

          a.       Most common is not being propositioned by female boss

          b.       But hostility from male coworkers who denigrate/drive away men who threaten work’s masculine image

                    i.        Men perceived to be gay

                    ii.       Men perceived to lack manly competence suitable for job

          c.       Harassing unmarried men, men not attractive to women, weak or slow men, men who openly support women, men with earings, young men or boys

          d.       Electric maintenance mechanic

                    i.        Driven out by fellow workers

                    ii.       Mocked him for not having a wife; drove jeep at him, threatened to knock down his ladder

                    iii.      He filed grievance and supervisor fired him

                    iv.      Court dismissed his claim, as couln’d conceive of it as sexual harassment

                    v.       More recently: Supreme court ruled male on male harassment is actionable even if not sexual in design.

          e.       This is sexual harassment, but not fit male-female, top-down, sex come on idea of harassment

10.     Another bad consequence of this assumption that sexual harassment about sex

11.     Unfortunate and problematic restrictions on sex in workplace

          a.       Any sexual relation between man and women unequal status is suspect

          b.       Some companies banned all sexual interaction even when it does not threaten women’s equality on the job

          c.       Men and women can't travel together or stay at same hotel

          d.       Male supervisors can’t give performance evaluation to female subordinates behind closed doors w/o lawyer present

                    i.        How women get the training they need?

          e.       Construction firm: men can’t look at women for more than 5 seconds

                    i.        Who will want to hire women then?

          f.       Repressively eliminate all hint of sex expression in workplace, however benign

                    i.        30 year employee (who administered company’s sexual harassment policy) demoted and salary cut for sending card to female at work “sex is a misdemeanor, de more I miss, de meaner I get”

          g.       Gives feminism a bad name

                    i.        Silly to fire people like this as pretense for protecting women from sexual abuse

          h.       Sex part of human experience and will exist at work

          i.        When men and women equal at work, sex is not a problem

          j.        Sexual banter as a form of playfulness and solidarity at work