Even as sex equality laws have given women the right to working environments free of sexual abuse, the culture proceeds apace to sexualize women as men's social inferiors.
Sexual harassment was first recognized as a legal claim for sex discrimination 30 years ago. Between then and now, courts have recognized that unwanted sex is imposed on women because they are women, that sexual and racial harassment are often combined, and that sexual harassment by someone of the same sex can be just as gender-based and just as abusive as when it is imposed by someone of another sex. Standards for holding employers accountable have been clarified.
Yet sexual harassment in U.S. workplaces is reportedly as prevalent as it was before it was made illegal. It is estimated that 90% of sexual-harassment victims decide that the cost of fighting back would be higher than giving in or getting out. Many women drop their claims under threat of exposing their sexual histories, which may include prior sexual abuse. Gag orders in settlements routinely silence plaintiffs, undermining the change in perceptions that public knowledge of their victories might promote. Sexual harassment as a legal claim is commonly attacked by scholars and defendants' lawyers as a weapon for vengeful, incompetent or oversensitive women and a wet blanket on office romance. How can this continued discrimination and stigmatization be explained?
The single most powerful force in undercutting sex equality at work remains the cultural sexualization of women, which has gained momentum over the same 30 years. During this time, pornography has increasingly saturated the world, both public and private, making itself ever more legitimate. Major corporations and mainstream media increasingly distribute what the pornography industry produces, trafficking women and girls for sexual use. With pornography infusing daily life more and more, its power to turn women into sexual objects, to eroticize domination as the meaning of being a man and subordination as the meaning of being a woman, and to desensitize its users to sexual abuse effectively sets standards for behavior, including at work.
These forces collide in Amaani Lyle's suit against Warner Bros., soon to be argued before the California Supreme Court. Lyle, an African American, has complained of being sexually and racially harassed while working on the TV show "Friends." Her job was to take down what was said in writers' brainstorming conferences. She described these sessions as a stream of sexually abusive, demeaning and derogatory verbal and physical behavior toward women, including simulated masturbation. Some of the conduct was directed at her; some was sex-specific verbal attacks on the female actors in the show; some involved "fantasies" and sexual practices, real and imagined, of the male writers; some involved drawing and displaying pornography; some was blatantly racist as well as misogynistic, she alleges.
Lyle's suit documents an atmosphere of hostility that permeated the working environment and had nothing to do with the development of a script. By her account, Lyle's workplace was pervasively sexualized in the most blatantly discriminatory ways, leaving her nauseated and traumatized.
In its defense, Warner Bros. seeks to carve out an exception in California's laws on racial and sexual harassment for what it terms "creative" workplaces under, among others, free-speech principles. Existing law already takes into consideration whether conduct that may legally constitute sexual harassment is necessary for a business. Drawing a doctrinal line between "creative" and other workplaces is neither principled nor administratively feasible. Most sexual and racial harassment is words, recognized legally for the discriminatory abuse it is. Most writers manage to get their creative juices flowing without abusing co-workers sexually and racially.
At stake in Lyle vs. Warner Bros. is nothing less than whether the pervasive pornographization of women will be permitted to destroy the law against harassment at work. Few institutions have the power to stand up to the well-documented effects of pornography, including making violation normal and inequality sexy.
Will sexual harassment law collapse under this onslaught or continue to be a force for sex equality for women at work?
By Catharine A. MacKinnon March 20, 2005
Catharine A. MacKinnon, professor of law at the University of Michigan, is the author of "Women's Lives, Men's Laws," just published by Harvard University Press.