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 more about general sexism on the job

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

                    i.        E.g., 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 or attitudes that disadvantages women (or men)

          b.       Discrimination against women (or men) based on sex or gender (what is the difference?)

          c.       Includes unwanted sexual advances, but involves much more

          d.       Feminism: A commitment to ending unfair discrimination against women


3.       Is sexism still a serious problem?

          a.       Consider S.C. State Legislature statistics


4.       Sexual harassment at work involves such things as:

          a.       Paternalistic prerogative of male boss to punish female employee for daring to step out of place as a woman

                    i.        e.g., Female employee who refuses to make the coffee

                    ii.       Paternalism: Subordinates should be controlled in a fatherly way for their own good

          b.       Withholding training and assignments women need to do their job well or to advance

          c.       Relegating women to menial duties

                    i.        The woman in the room takes the notes (acts like a secretary)

          d.       1993 Supreme Court case where company president suggested that a female manager must have had sex with a client to land such an important account


5.       Sexual harassment is not about sex, but sexist failure to take women seriously

6.       Sexual harassment functions to:

          a.       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

          b.       Insure sex segregation in workplace

                    i.        E.g., Women firefighters man the pump, they don’t go into the building

          c.       Reinforce gender differences

                    i.        Women do the jobs that involve being gentle and compassionate (nurse)

                    ii.       Men do the jobs that involve intellect and authority (doctor)


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


          a.       Female electricians harassed as being an electrician is a man’s job; 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 their case files and putting lime on their 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

                    ii.       Sexual harassment not just blue collar phenomenon


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

          a.       Union carbide case: Court dismissed harassment claim by woman whose foreman “picked on her all the time” and treated her worse than the men.

                    i.        Reason: 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.       Electician labor union spokesperson said “there never will be a time for women to be a foreman”

                    iii.      She was removed from floor during Miss America pageant

                    iv.      Court ruled that because nothing seriously sexual involved, this was not gender based discrimination and was not hostile work environment


9.       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.


10.     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 and 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”


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

          a.       Such harassment does not typically involve being propositioned by a female boss


          b.       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 earrings, 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 couldn’t conceive of it as sexual harassment

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

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


12.     Another bad consequence of this assumption that sexual harassment is about sex:

13.     Unfortunate and problematic restrictions on sex in workplace

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

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

          c.       Men and women are not allowed to 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

          e.       How women get the training and advice they need?

          f.       Construction firm: Men can’t look at women for more than 5 seconds

          g.       Who will want to hire women then?

          h.       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”

          i.        Gives feminism a bad name

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

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

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

          m.      Sexual banter can be a form of playfulness and solidarity at work

          n.       Sex should be treated like anything else in the workplace:

                    i.        Where if furthers discrimination, it should go

                    ii.       Where it doesn’t, the law should stay out of it