Ten Principles for Addressing Sexual Harassment
Principle #1: The problem with sexual harassment is sexism, not sexual desire.
Sexual harassment often refers to unwanted sexual advances and assaults, usually by powerful male bosses or benefactors against less powerful women. This is an important pattern of harassment, one that our society must address. Yet, not all harassment fits this pattern, and even this pattern is more about gender than it is about sexual attraction.
Contrary to popular perceptions, harassment is not always sexual in nature; it assumes a variety of nonsexual forms. Nor is it usually perpetrated by bosses or power brokers, nor is it always a male-to-female phenomenon. Men harass other men who don’t conform to prescribed images of who “real men” are supposed to be, for example. Women sometimes harass other women, as well as men.
In all these scenarios, the bottom line is that harassment is more about upholding status and identity than it is about expressing sexual desire or sexuality. In the usual case, harassment provides a way for some men to monopolize prized roles in society, and to maintain a superior masculine position and sense of self. Even where unwanted sexual misconduct occurs, it is typically a telltale sign of biased attitudes or broader patterns of inequality such as gender stereotyping and sex segregation, as explained below.
Principle #2: Harassment includes many forms of nonsexual sexism and abuse, not just sexual misconduct.
Recent events have focused on unwanted sexual advances, including serious sexual assaults. These acts cause serious harm. They humiliate victims, brand them as inferiors, and cause lasting psychological anguish and trauma. As the #MeToo movement insists, survivors of such sexual harassment and abuse deserve respect, empathy, and justice from society and the legal system to address these harms.
The same is true of many other nonsexual forms of sexism and abuse that women experience simply because they are women. Patronizing treatment, physical assaults, hostile or ridiculing behavior, social ostracism and exclusion, and work sabotage are all used to make women feel inferior, for example, just like sexual come-ons. In fact, research shows that nonsexual hostilities are more common than unwanted sexual overtures. Typically, even explicitly sexual overtures are accompanied by other forms of sex-based harassment and disrespect, revealing that sexual misconduct is often less about hooking up than about putting women down.
For these reasons, the laws prohibiting workplace and school harassment now prohibit all sex-based harassment, sexual and nonsexual, in a variety of institutional and social settings.
Principle #3: Sexual harassment is linked to sex segregation and inequality.
Reformers who highlight the importance of gender parity are right: sex segregation and inequality are a major cause of sex harassment. Research shows that harassment is more prevalent where women work in traditionally male-dominated jobs or settings, for example.
Women’s absence from some positions or spaces and predominance in others fosters gender stereotypes like “men are leaders” and “women aren’t tough enough to lead”—ideas that make the underlying segregation and inequality seem natural when they are not. These stereotypes foster harassment, encouraging men to view and treat women as “different” and second class. By harassing women who dare to enter traditionally male institutions or roles, or imposing sexist demands that remind women they are still women in a man’s world, men can shore up their masculine status and sense of masculine superiority. Harassment in turn reinforces the original segregation and stereotypes by driving women away and confirming ideas that they can’t cut it or don’t belong. Leaders often fail to respond or look the other way, completing the cycle.
Sex segregation not only affects mostly-male institutions: Women who inhabit traditionally female positions and spaces are often at increased risk of harassment and exploitation, too, especially where their roles require displaying heterosexual sex appeal or performing other stereotypically female roles. Without the power and safety that comes with equal representation and numbers, women cannot effectively counter stereotypes or deter or resist harassment. Combatting sexual harassment means eliminating sex segregation and ensuring that women and men work, learn, and socialize alongside each other as equals.
Principle #4: Same-sex harassment and LGBTQ harassment are prevalent and prohibited forms of sex discrimination, too.
Women are not the only victims of harassment. Men, too, frequently experience sex-based harassment—mostly at the hands of other men. At times, powerful men prey on other men for sexual favors, just as men do upon women. But more often, men harass other men through acts of gender-based hostility—including hostility toward those who don’t live up to images of “real men” prescribed by mainstream codes of masculinity. Although female-on-female harassment is less visible than other types, women do sometimes demean and ostracize women perceived as improperly feminine, including lesbians. Harassment against LGBTQ people is widespread, with transgender individuals experiencing the highest rates of all. By attacking LGBTQ people and heterosexual individuals who fail to conform to prescribed gender norms, harassers reinforce their status and shore up their own sense of self.
Because harassment and discrimination against LGBTQ individuals is necessarily rooted in prescriptive stereotypes about appropriate appearance, sexual partners, and gender identity, the law has rightly begun to recognize that sexual orientation and transgender harassment is a form of illegal sex discrimination. This is true regardless of whether the motive or means are sexual in nature or whether the harassment is directed at someone of the opposite or same sex.
Principle #5: Race-based harassment and intersectional race/sex harassment and discrimination must be specifically addressed.
Women and men of color experience higher rates of racial-ethnic harassment than white people. Women of color also report and experience higher rates of harassment than white women, often on the basis of both sex and race. Men of color may also be more likely than white men to experience gender-based harassment at the hands of other men. In general, people who experience sex-based harassment are more likely to experience racial-ethnic harassment, highlighting the importance of intersectional analysis pioneered by Black feminists.
Black women have been subjected to sexual and labor exploitation for centuries, dating back to slavery. Women of color generally face increased risk of harassment, and pernicious myths about their sexuality, as well as persistent nonsexual negative stereotypes. Men of color, too, face pervasive stereotypes and are sometimes targeted for harassment or discrimination, or accused of it, because of their race and sex. Women of color, as well as immigrants and undocumented workers, are also disproportionately clustered in low-paying, unskilled occupations, leaving them further vulnerable to and less able to resist stereotyping and harassment. The law has properly begun to acknowledge the foundational role of race in contributing to sex-based harassment, along with other structural factors as discussed below.
Principle #6: Broader structural vulnerabilities, as well as arbitrary unchecked authority, must be reduced.
Many women find themselves in occupations or situations that leave them vulnerable to sex-based harassment and exploitation. Hotel housekeepers work alone; agricultural workers are “out of sight and out of mind” for the general public; and waitresses who rely on tips may feel compelled to tolerate harassment, for example. Students must depend on teachers and coaches for advancement and advice.
Even apart from such specialized vulnerabilities, many people also face a more generalized risk for harassment and abuse—bosses or benefactors who have unchecked, carte blanche authority to make or break their careers and life prospects based on the higher-ups’ own subjective say-so. The gendered character of the hierarchy contributes to the problem—because of sex segregation and inequality, too many bosses and benefactors are men—but so does the nature of the hierarchy itself. Research shows that managers who are given unfettered, discretionary authority over subordinates, for example, are more likely to abuse it. This is unnecessary and wrong. Excessive, unchecked discretion not only provides a ready mechanism for discrimination; it also provides a powerful platform for sexual misconduct and sex-based harassment and intimidation. Time-honored legal principles prohibit excessively subjective, unconstrained discretion, incentivizing greater objectivity, oversight, openness, and accountability to constrain arbitrary authority that facilitates harassment and abuse.
Principle #7: Institutions should rely on fair process to determine whether sexual behavior is unwelcome and harassing, rather than simply banning all sexual behavior across the board.
In an effort to avoid legal liability, many institutions have adopted policies that broadly prohibit all sexually-oriented conversation and behavior, regardless of their purpose or effect. Some organizations even ban dating among same-level members. Such sweeping prohibitions tend to be unhelpful; they can even hinder the cause of eliminating harassment and discrimination by creating fear and encouraging higher-ups and peers to avoid women, further fueling patterns of sex segregation and inequality.
Common sense suggests that not all sexual conversations, invitations, or relationships are discriminatory or harmful; this is why the law requires that harassment be unwanted or unwelcome. Power and representation in a given context matter. In less sex-segregated, more gender equal settings, for example, women are less likely to experience sexual harassment. In other cases, dating relationships among colleagues are welcome.
Overzealous approaches that seek to eliminate all sexual expression invite cynicism and backlash against initiatives to combat harassment. They fail to promote equality for women, while leaving LGBTQ people, men of color, and others who are stereotyped as sexually predatory vulnerable to disproportionate punishment. To help prevent discriminatory enforcement of harassment policies, and to ensure basic fairness for both complainants and people accused of sexual misconduct, it is important to provide thorough, impartial, and evenhanded investigations and hearings for all complaints.
Principle #8: Support for victims of harassment and people who stand up for them must be strengthened.
To end harassment, societal institutions must create conditions and cultures that ensure equal inclusion and respect for everyone. Leaders can provide time, money, and organizational resources to prevent harassment, investigate complaints fairly, monitor results, and establish a climate of respect for all. They can also take steps to desegregate along sex and gender lines and create structural conditions in which equality and respect can flourish.
But addressing harassment is too important to be left to leadership alone. Eliminating sexual harassment requires solidarity with those who come forward to complain. Harassment can be eliminated only if people who are harassed are safe in coming forward, and if other people can safely stand up for them. All members of society have a vital stake and role to play in creating nondiscriminatory institutions and social spaces. Politicians, reporters, educators, activists, shareholders, consumers, and ordinary citizens can also stand up for victims—and for what is right—across traditional boundaries of sex, gender, sexual orientation, race, national origin, and socioeconomic and occupational status.
Research shows that most people who experience harassment do not report it, largely because they fear retaliation—and with good reason. Without empowering victims and their allies to reveal and protest perceived wrongdoing, there is no way to eliminate harassment or to move society forward.
Principle #9: Victims of sexual harassment should have open and equal access to the legal system.
Sexual harassment is a form of discrimination, and it should be treated the same as other types of discrimination. To a large extent the law recognizes this principle. But there are exceptions. Even though hostile work environment harassment is simply discrimination in the terms and conditions of employment, for example, the Supreme Court has said employers do not face the usual strict liability for this type of harassment. Further, employees who are not fired or demoted must first complain internally to their employers before turning to the courts for redress. Once there, the law requires them to prove elements not required of other employees who experience discrimination. The Court has set unduly high standards that prevents many victims from having their day in court, let alone winning. Judges often turn a blind eye to sexism, refusing to find that harassment is because of sex when it is clearly driven by sexism and stereotyping.
These barriers are unacceptable. It is unfair and unwise to subject harassment cases to more onerous legal rules than other forms of discrimination. It suggests that victims of sexual misconduct are somehow responsible or at fault for the harassment. All victims of harassment and discrimination should have recourse to the legal system on equal, accessible terms.
Principle #10: Prevention and remedies must move beyond punishing individual wrongdoers to encourage systemic institutional change.
Harassment is a large-scale problem; it requires bold solutions. Individual harassers must be held accountable for their actions, as discussed above. Allowing harassers to rise to prominence, remain in their positions, resign, or disappear from the public eye quietly does nothing to prevent them from causing more harm. But institutions and society must do much more. Even if individuals are held to account, other harassers will eventually take their place unless the underlying conditions and cultures that fostered the harassment in the first place are changed.
Ending harassment requires moving beyond individual solutions to adopt approaches that hold institutions accountable for harassment and its sources. The law should lead the way, but recent Supreme Court decisions make it difficult to seek justice along these lines. The Court has cut back on the availability of class actions, for example, and upheld mandatory arbitration agreements for harassment and discrimination claims. These decisions force complainants into private arbitration forums that tend to favor the status quo and prevent people from challenging injustices together. Not only do such decisions limit access to justice for people who have experienced harassment and discrimination: all citizens are hindered in obtaining meaningful reforms when those in power treat harassment as a problem of individual bad actors, rather than as a product of the broader structures and environments in which those individuals work, learn, and interact with each other as equals.
Employees, advocates, policymakers, educators, labor unions, activists, students, and ordinary citizens must think expansively about how to facilitate such systemic changes to prevent and remedy harassment and discrimination. We must move beyond individual punishment to embrace actions that will alter the structure and culture of our institutions and encourage greater equality, respect, and solidarity among those who inhabit them. Such actions can and should be undertaken inside and outside the legal system, inspired by enduring legal ideals of equality and fairness for all.
As legal scholars and educators, we know that law alone cannot create change. Yet we know also that change rarely occurs without the law. For over forty years, employees, activists, educators, and policymakers have looked to the legal system to address sexual harassment, particularly in the context of the workplace and campus. These efforts have produced important theories and information, steps forward and setbacks, that yield important lessons for the future. The laws against discrimination provide an important tool in the fight against sexual harassment. But broader reforms are needed to address the conditions in which harassment flourishes, and to make legal and social institutions more responsive to the problem. The foregoing principles are a place to start.
Alphabetical, institutional affiliation listed for identification purposes onlyLast updated 10/5/18 at 2:54 p.m. EST
Kathryn Abrams, Professor of Law, Berkeley Law SchoolMiriam R. Albert, Professor of Skills, Hofstra Law SchoolAnne L. Alstott, Jacquin D Bierman Professor of Law, Yale Law SchoolNadia B. Ahmad, Associate Professor of Law, Barry University School of Law Maryam Ahranjani, Assistant Professor, University of New Mexico School of LawIfeoma Ajunwa, Assistant Professor, Cornell University ILR School Associate Faculty Member, Cornell Law SchoolSusan Appleton, Lemma Barkeloo & Phoebe Couzins Professor of Law, Washington University School of Law Rachel Arnow-Richman, Professor of Law, University of Denver Sturm College of Law Hader Aviram, Thomas Miller ’73 Professor of Law, UC Hastings College of the LawIan Ayres, William K. Townsend Professor of Law, Yale Law SchoolSahar Aziz, Professor of Law and Chancellor’s Social Justice Scholar, Rutgers Law SchoolBarbara A. 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Siek, Lecturer, University of New Mexico Matiangai Sirleaf, Assistant Professor of Law, University of Pittsburgh Law SchoolAbbe Smith, Professor of Law, Georgetown UniversityCharisa Kiyô Smith, Associate Professor of Law, City University of New York School of Law Peggie Smith, Charles Nagel Professor of Employment & Labor Law, Washington University in St. Louis School of Law Gemma Solimene, Clinical Associate Professor of Law, Fordham University School of LawKaren C. Sokol Associate Professor of Law, Loyola University New Orleans College of LawBrian Soucek, Professor of Law, UC Davis School of Law Jane Spinak, Professor of Law, Columbia Law SchoolJayashri Srikantiah, Professor of Law, Stanford Law SchoolKathryn Stanchi, Jack E. Feinberg Professor of Litigation & Professor of Law, Temple University School of LawSarah Steadman, Assistant Professor of Law, University of New MexicoNomi Maya Stolzenberg, Nathan and Lilly Shapell Chair in Law, University of Southern California Law SchoolCharles Sullivan, Professor of Law, Seton Hall University Allison Tait, Associate Professor of Law, University of Richmond School of LawAnn Thomas, Otto L. Walter Distinguished Professor of Tax Law, New York Law School Grace Calabrese Tonner, Professor of Lawyering Skills, University of California Irvine School of LawMichelle Travis, Professor of Law, University of San Francisco School of LawLaurence H. Tribe, Carl M. Loeb University Professor and Professor of Constituional Law, Harvard Law SchoolDeborah Tuerkheimer, Research Professor, Northwestern University Pritzker School of Law Inge Van der Cruysse, Lecturer in Law, Faculty Director Externship Program, Indiana University Maurer School of LawLiza Vertinsky, Associate Professor of Law, Emory Law SchoolValorie Kay Vojdik, Professor of Law, University of TennesseeLeti Volpp, Robert D. and Leslie Kay Raven Professor of Law, UC Berkley School of LawRachel Vorspan, Professor of Law, Fordham University School of LawLu-in Wang, Professor of Law, University of Pittsburgh Ettie Ward, Professor of Law, St. John’s University School of Law Rhonda Wasserman, Professor of Law, University of Pittsburgh School of Law Gary Watson, Provost Professor of Philosophy and Law, University of Southern CaliforniaDanielle Weatherby, Associate Professor of Law, University of Arkansas School of LawJessica Dixon Weaver, Associate Professor of Law, SMU Dedman School of LawKelly Weisberg, Professor of Law, University of California Hastings College of LawMarley Weiss, Professor of Law, University of Maryland Francis King Carey School of LawDeborah M. Weissman, Reef C. Ivey II Distinguished Professor of Law, University of North Carolina School of Law Robin West, Professor of Law, Georgetown UniversityBarbara Ann White, Professor of Law, University of Baltimore School of Law Lucie White, Louis Horvitz Professor, Harvard Law SchoolDeborah Widiss, Professor of Law, IU BloomingtonStephanie Wildman, Professor Emerita, Santa Clara University of School of Law Pam Wilkins, Professor of Law, University of Detroit Mercy School of LawRichard J Wilson, Emeritus Professor of Law, American University, Washington College of LawStephen Wizner, William O. Douglas Clinical Professor of Law Emeritus, Yale Law SchoolDavid Yamada, Professor of Law, Suffolk University Donna Young, President William McKinley Distinguished Professor of Law and Public Policy, Albany Law SchoolDeborah Zalesne, Professor of Law, CUNY School of Law Noah Zatz, Professor of Law, UCLA School of Law Candace M. Zierdt, Professor of Law, Stetson University College of Law