Heterophobia: Sexual Harassment and the Future of Feminism(American Intellectual Culture Series)by Daphne Patai
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What does it mean to be a feminist today? Should women require special legislation to protect them from sexual harassment? Daphne Patai's controversial look at the nation's current epidemic of sexual harassment charges answers these questions and illuminates complex ideological struggles within contemporary feminism. By investigating the ongoing attempts to regulate sexual conduct, Heterophobia argues that women's pursuit of a "comfortable" environment has created a feminist-induced hostility toward men and heterosexuality. Patai identifies the origins and evolution of "the sexual harassment industry," and she presents cases of those men and women whose lives were ruined by false or frivolous charges of harassment. A scathing criticism of political and sexual "correctness," this thought-provoking and powerfully argued book is sure to incite debate among all Americans concerned with the legacy and future of women's rights.
The Women's Review of Books
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We are going to reeducate you, boy.
WORDS SPOKEN BY A DEAN TO A MEMBER OF
HER FACULTY ACCUSED OF SEXUAL HARASSMENT
Setting the Stage
It has been nearly twenty-five years since the terminology of sexual harassment began to enter public discourse. In her groundbreaking book Sexual Shakedown: The Sexual Harassment of Women on the Job (1978), Lin Farley recounts how, while teaching a class on women and work at Cornell University in 1974, she came to realize that she and her women students had a crucial experience in common: All had left a job because they had been made "too uncomfortable" by the behavior of a man at work.
At the same time, also at Cornell, a forty-four-year-old woman named Carmita Wood, having been promoted to the position of administrative assistant in one of the university's laboratories, found herself in constant contact with a Cornell official in a nearby office who subjected her to unrelenting sexual attentions. After repeated efforts to be transferred, Wood resigned. Denied unemployment compensation, she began to talk about her situation. A group of women gathered to help her pursue her case, and in this context, the term "sexual harassment" was first used to designate a problem that until then had been nameless.
A potentially effective legal mechanism already existed in the United States for dealing with this newly identified problem, but how forceful an apparatus this actually was became clear only as the result of a number of judicial and administrative events that unfolded between the 1970s and the early 1990s. Title VII of the Civil Rights Act of 1964 had made it unlawful for an employer to discriminate in hiring, firing, promotion, and terms and conditions of employment on the basis of sex, as well as race, color, religion, or national origin. (Ironically, the addition of sex discrimination took place during the House floor debate by opponents of the act attempting to sabotage it.) In 1972, the Equal Employment Opportunity Act enlarged the authority of the Equal Employment Opportunity Commission, which is charged with the enforcement of Title VII, over claims of discrimination. Because Title VII had excluded educational institutions, Title IX of the Education Amendments, also in 1972, outlawed any and all discrimination on the basis of sex in educational institutions receiving federal dollars. Title IX, furthermore, obligated these institutions to set up and publish formal grievance procedures for handling complaints that allege acts of sexual discrimination. Such acts are defined by the Office of Civil Rights of the U.S. Department of Education, which enforces this federal statute, as
verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent of a recipient of federal funds that denies, limits, or provides different, or conditions the provisions of aid, benefits, services, or treatment protected under Title IX.
How Title IX came about makes for an interesting story. Its protagonist was Bernice R. Sandler, today one of the leading specialists in, and the doyenne of, the Sexual Harassment Industry. Initially, Sandler's role was a heroic one; her campaign to prohibit discrimination against women in higher education was obviously an important undertaking. Writing in the newsletter she has edited for the past seven years, About Women on Campus, Sandler retold her story, in a celebratory vein, on the twenty-fifth anniversary of the legislation that "made it possible for women and girls to achieve a greater measure of equity than ever before."
In 1969, when Sandler was teaching part-time at the University of Maryland while completing her doctorate, a friend told her that she was not being considered for any of seven openings in her department because "[y]ou come on too strong for a woman" (italics in original). To Sandler's then-husband, this was nothing more nor less than "sex discrimination." Assuming it to be illegal, because so clearly immoral, she was surprised to learn that Title VII did not cover sex discrimination in education. Some research led her to note that an executive order already existed prohibiting federal contractors from discriminating in employment on the basis of race, color, religion, and national origin. She reports that she shrieked with excitement upon learning that President Johnson, in 1968, had amended that executive order to include discrimination based on sex. She instantly realized that most universities and colleges, having federal contracts, were therefore forbidden from discriminating in employment on the basis of sex. A legal route, in other words, did indeed exist for combating sex discrimination, little known though it was at the time.
Meanwhile, at the U.S. Department of Labor, the director of the Office of Federal Contract Compliance had been waiting for someone to use Johnson's executive order in relation to sex discrimination and was delighted when Sandler approached her. Together, they planned the first complaint against universities and colleges. Sandler also collaborated with the Women's Equity Action League on a national campaign to end discrimination in education. On January 31, 1970, the league filed a historic class-action complaint against all universities and colleges in the country. This was an administrative complaint, filed with a federal agency (the Department of Labor), not a lawsuit filed in court, and therefore it did not require an attorney.
Over a two-year period, Sandler herself launched complaints against 250 institutions; other individuals and organizations filed some 100 more. Sandler documented admission quotas, financial assistance, hiring practices, promotions, and salary differentials. She also organized a letter-writing campaign to alert congressional staff to sex discrimination occurring in education. In 1970, the first contract compliance investigation involving sex discrimination was begun at Harvard University. The first congressional hearings on education and the employment of women were held in June and July of that same year. The hearings, the records of which were widely distributed, established sex discrimination in higher education as a legitimate issue, though initially most educators had denied its very existence. In 1972 Title IX of the Education Amendments was enacted by Congress and signed into law by President Nixon.
Sandler optimistically anticipated rapid results. She tells us that she expected all inequities based on sex to disappear within a year or two. Slowly, however, she raised her estimate to five years, then to ten, then twenty-five. By now, as she wrote in 1997, she has learned that "we were trying to change very strong patterns of behavior and belief, and that would take more than my lifetime to accomplish."
Today Bernice Sandler is a widely published author who also consults and speaks about harassment issues. Hers is an inspiring story. But it does not end there. Opposition to sexual harassment has come to mean something very different from the early efforts of pioneers such as Sandler to defeat gender prejudice. So what went wrong? The achievements of the early 1970s were not allowed to rest on the laurels they deserved. With all the energy and pluck that Sandler and her colleagues devoted to the cause, what they seem to have lacked was the conviction that given equal opportunity, women would compete and flourish. And this lack, in turn, has left them apparently incapable of recognizing the real successes women have in fact achieved: the excellent academic records of women compared to men; the higher percentage of women (56.1 percent overall, from every ethnic and racial group) than of men who enrolled in undergraduate programs in 1995; the higher rate of graduation among women (currently 55 percent, again reflecting every ethnic or racial group as compared with men from the same group); the ever-increasing numbers of women in law, medical, and other professional schools, and in doctoral programs. Women received 37.9 percent of the doctorates awarded in 1996 (by 2006 they are expected to achieve parity with men in receiving doctorates).
Searching for a lasting outlet for their dedication to activism, Sandler and her associates could find it only at ever more microlevels. Thus we hear of the "chilly climate" for women in coeducational colleges and universities (improbably, this climate is often claimed by feminist activists to be colder today than it was in the past). Sandler's latest "chilly climate" report suggests that the more subtle forms of discrimination still being uncovered by feminists are even more damaging to women than the overt discrimination of the past. What are these subtle forms? Professors supposedly make less eye contact with female students. They call on them less frequently and give them less encouragement when they speak than they give to male students. In view of the open record of academic successes by women, allegations such as these suggest something of the desperation with which feminist activists regard the changed academic scene.
"Sexual harassment" must therefore be sought out with an ever more powerful magnifying glass. In a column written for her newsletter in 1994, for instance, Sandler compiled a list of tips headed "How men can tell if their behavior is sexual harassment." Two of the tips indicate the drift toward vigilantism: "If I ask someone for a date and the answer is `no,' do I keep asking?" If you reply "yes," you may be guilty of harassment. "Do I tell jokes or make `funny' remarks involving women and/or sexuality?" Again, an affirmative answer reveals a potential harasser. "Such jokes," Sandler explains, "may offend many people." Her column concludes that if a man answers "yes" to any of the questions, there is a good chance that he will be considered a sexual harasser: "Because such behavior is likely to be high risk, if you have to ask, it is probably better not to do it." Evidently she is unconcerned about the other kind of "chilly climate" such advice is likely to promote. In addition, for some years now Sandler has predicted that "peer harassment," especially student-to-student harassment (about which she coauthored a report in 1988), will be the next major problem requiring the attentions of the sexual harassment experts. Could this be because faculty harassment has turned out to be not quite as fruitful a field as the SHI had anticipated? In any case, such moves illustrate the unmistakable trend for sexual harassment activism to expand its reach both horizontally (to include all public settings) and vertically (embracing all age groups).
Looking back at this sequence of events from the vantage point of the present a time in which sexual harassment has become one of the hottest issues around I find myself much intrigued by the process by which a problem without a name has been transformed into a name that is itself a problem. How did we get from clear examples of sexual discrimination in school and workplace to a preoccupation with "comfort" levels, dirty jokes, and passing innuendos? How did sexual discrimination, sexual harassment, and just plain sex get entangled to such an extent that today a bit of overheard banter or a clumsy sexual overture in the office or school is considered as unacceptable, and potentially as actionable, as the sort of relentless sexual aggression experienced by Carmita Wood at Cornell?
It took some years for the notion of "comfort" to be raised to the level of law by way of the concept of hostile-environment harassment, but in Lin Farley's Sexual Shakedown, a key document, this development is clearly foreshadowed. On the very first page of her book, Farley characterizes as "uncomfortable" the situation she and her women students encountered in their places of work. What disturbed them was not sexual extortion, not pressure to perform sexual acts as the condition of continued employment, but a variety of overt manifestations of male sexuality all perceived as "male assertions of dominance" that pervaded the workplace.
If Farley's 1978 book was an early salvo in the campaign to create workplace environments fit for women, Catharine MacKinnon's Sexual Harassment of Working Women, appearing in 1979, moved events to the litigious stage by arguing that sexual harassment, because it is a problem primarily for women, is a form of discrimination and as such a violation of federal law. It was at this point that sexual harassment charges began to become widespread. MacKinnon's hugely influential book presented itself as a wake-up call. "Intimate violation of women by men is sufficiently pervasive in American society," it began, "as to be nearly invisible ... it has become institutionalized." Why have the courts paid so little attention to a form of discrimination suffered by perhaps seven out of ten women at least once in their lives? Because they have failed to grasp the nature of the offense. According to MacKinnon, acts of sexual harassment do not spring casually or incidentally from the interplay of biology, personality, and circumstance. They arise necessarily out of the very structure of American society in which women occupy an inferior and distinct place. Harassment subjects women to adverse treatment because of their different sex and because of their social inequality. Therefore, harassment is discrimination within the sense of both Title VII of the 1964 Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.
Crucial to an understanding of the severity of such discrimination is the realization of women's subordinate status, socially and sexually, in our society. Only when legislators and courts have learned to give full weight to the connection between social condition and discrimination can women hope to achieve the relief due them. "Sexual harassment ... eroticizes women's subordination," MacKinnon has famously written. "It acts out and deepens the powerlessness of women as a gender, as women." Building on her well-known argument that violence against women is merely a variation of men's normal interaction with women, she concluded:
If sexual harassment expresses the pervasive reality of normal relations between the sexes, and if these relations express unequal social power, then the feelings and practices that emerge are not reasons that the practices should be allowed. They support and evidence the discrimination. Violations that would not be seen as criminal because they are anything but unusual may, in this context, be seen as discriminatory for precisely the same reason.
Recent legislation, as well as the Constitution itself, MacKinnon argued, offered courts the legal handles to take hold of the issue of women's inequality at long last.
The first federal cases to recognize sexual harassment as a form of sex discrimination came in 1976 and 1980: Williams v. Saxbe and Alexander v. Yale University. Both found sexual harassment to be a violation of Title IX. Although the U.S. Supreme Court had not yet spoken on the matter, quid pro quo harassment what Lin Farley, more simply, had called "sexual shakedown" was coming to be recognized as an impermissible form of sex discrimination actionable under Title IX. In 1980, the Equal Employment Opportunity Commission's set of guidelines for actions to be brought under Title VII enlarged the field considerably, proving sexual harassment to be a highly elastic concept. Conduct is offensive, the EEOC stated, not only "when submission [to] or cooperation [with it is] an implicit or explicit condition of employment" but also when it has the "purpose or effect of unreasonably interfering with a person's work performance or creating an intimidating, hostile, or offensive work environment" (my italics). This expanded interpretation was accepted by the court in Moire v. Temple University School of Medicine in 1986 and, that same year, by the U.S. Supreme Court in Meritor Savings Bank v. Vinson, which established that a working environment may be hostile to women, and may violate Title VII of the Civil Rights Act, despite the absence of economic consequences. Sexual harassment, the Supreme Court held, consists of
unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct ... when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
Once again, the key phrase "purpose or effect" endorsed the purported victim's subjective perception regardless of the intent of the alleged harasser. "Plaintiff may establish a violation of Title VII," the Court concluded, "by proving that discrimination based on sex has created a hostile or abusive working environment." Meritor did not, however, clarify what standard was to be applied to determine whether behavior was sufficiently pervasive or severe to qualify as actionable.
Legislation and litigation in the years following Meritor showed a marked tendency for both the concept and the application of sexual harassment to broaden further. In 1992, the Campus Sexual Assault Victims' Bill of Rights, binding on all institutions receiving federal funds, obligated university authorities to treat reported offenses seriously and to protect the complainants against unwarranted allegations that they had invited the complained-of acts. EEOC guidelines declared institutions liable for their employees' acts. They also legitimized complaints by third parties those who, although not the direct targets of alleged harassment, feel themselves to be affected by it.
At the same time, several developments, in effect, encouraged the filing of sexual harassment suits against institutions, which in turn made it lucrative to establish consulting firms specializing in how to avoid such suits. Congress enacted the Civil Rights Act of 1991, providing for both compensatory and punitive damages for violations of Title VII. Other legislation allowed jury trials in discrimination cases. And in February 1992, the Supreme Court unanimously declared that Title VII plaintiffs could collect monetary damages.
For all these reasons, universities were forced to adopt procedures intended to inhibit "discriminatory" behavior (including "offensive" speech) and, when such behavior was said to occur, launch a thorough investigation of it. As critics have pointed out, because employers (including universities) are constantly under the threat of legal sanctions, the result of these developments was bound to be an imbalance in which the rights of alleged harassers are routinely sacrificed to those of the alleged victims. As Mane Hajdin has noted, criminal sanctions in the Western tradition are imposed "only for conduct that is engaged in intentionally, knowingly, or at a minimum, recklessly." In addition, in criminal law, guilt must be proven beyond a reasonable doubt. Civil law, by contrast, imposes liability for negligence, and requires merely a preponderance of evidence. The reasoning behind this distinction assumes that losing a civil suit affects an individual's life far less gravely than being convicted of a crime. The latter may well ruin one's life; the former normally does not. But, Hajdin argues,
being found guilty of sexual harassment is, in its consequences, far closer to being found guilty of a crime than to losing a civil suit. Admittedly, sexual harassers do not go to jail, but in all other respects, one's life can be just as ruined by being found guilty of sexual harassment as by a criminal conviction. Those found guilty of sexual harassment are typically treated as outcasts, just as criminals are. If one is accused of sexual harassment, one stands to lose one's job ... and one's respectability in one's community.
Yet despite these severe consequences, those accused of sexual harassment do not enjoy anything close to the procedural protection given in our legal system to defendants in criminal trials. Procedures often implemented by people without proper legal training may be slipshod; guilt need not be proven beyond a reasonable doubt; and culpable actions need not be demonstrated as either intentional or reckless. As Hajdin concludes,
The law about sexual harassment in employment thus affects people's lives in a manner that is normally reserved for criminal law without giving them the rights that criminal defendants normally have. The state has managed to accomplish this, without causing public uproar, by giving the law a two-level structure.
Hajdin refers to an "upper level," where the state, through its legal apparatus, imposes on employers the obligation to see to it that no sexual harassment occurs. Employers carry out this mandate by putting in place various internal rules at what Hajdin calls the "lower level." The resulting two-tiered system works to the detriment of those accused of sexual harassment:
An employer that ends up erring in favor of the alleged harasser, even if only slightly, may easily find itself in court, while an employer that errs in favor of the alleged victim is unlikely to find itself in similar trouble, unless the error is extreme. Employers are thus given an incentive to structure lower-level proceedings in such a way that errors in favor of alleged victims are more likely than errors in favor of alleged harassers.
Important decisions handed down in the early 1990s further eased the burden on women in proceeding against acts perceived as harassment. In Harris v. Forklift Systems, Inc. (1993), the Supreme Court held that Title VII is violated whenever "the environment would reasonably be perceived and is perceived as hostile or abusive." In order to sue, plaintiffs need not show that the harassment caused them any psychological injury. In Ellison v. Brady (1991), the U.S. Court of Appeals for the Ninth Circuit had already declared that offensive conduct should be judged not merely from the point of view of a "reasonable person" but from that of "a reasonable person in the position of the plaintiff" in short, a "reasonable woman." The Ninth Circuit conceded that the "reasonable person" perspective, as previously adopted by courts, may not do full justice to the particular ways in which women respond to harassing behavior directed against them. The court concluded that "a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women." Thus, a woman's subjective judgment of men's actions, regardless of their intent, became the standard by which complaints could be judged. EEOC guidelines made this new criterion explicit. They also extended it to still other identity groups: A "reasonable person" standard that includes consideration of the perspective of the plaintiff's race, gender, and other personal characteristics allows for a multiplicity of heightened sensibilities to determine whether something is or is not harassment.
"Reasonableness" itself, however, leaves a very large number of questions to be answered on a case-by-case basis, as does the "unwelcomeness," "severity," or "pervasiveness" of alleged acts. Because the Supreme Court noted in Harris that it "need not answer ... all the potential questions" raised by the case, wide discretion to interpret sexually harassing behavior and its consequences resides with lower courts and governmental bodies, not to mention academic authorities who, under the law, must have in place administrative procedures for handling complaints of harassing behavior on campus. A clear implication of the "reasonable woman" standard is that it is not so much the intent (the "purpose," in the language of the law) of the alleged offender that should count in interpreting the gravity of acts of sexual harassment as, rather, the way in which these acts are perceived by the complainant (the "effect"). Subjective factors thus operate at every level of the sexual harassment scene. They open a wide space for discretionary applications. This is no doubt responsible for most of the troubles bedeviling sexual harassment surveillance in academic and workplace settings. When a woman's personal experience of "discomfort" can be readily converted into evidence of a "hostile" and "offensive" environment, which in turn is taken as a sign of "discrimination on the basis of sex," the most trivial allegation made by a "victim" can be regarded as a grave matter. For the accused in such a case, due process is likely to be given short shrift.
Far from focusing on the enormous legal and social problems generated by this elevation of subjectivity, sexual harassment activists treat it as an opportunity. Case after case shows them happy to blur, if not altogether elide, the differences between discrimination and discomfort. Discrimination calls for the removal of impediments and the creation of equal opportunity; a wrong is to be righted. "Discomfort" demands a near total absence of unpleasantness, thus aiming, quixotically, at perfection. This distinction does not trouble the SHI. The legal framework now available to its functionaries, because it addresses both issues together, occludes the crucial practical question: Is a casual comment containing a sexual reference, or an unwanted invitation that is (perhaps less than sensitively) repeated, a true species of discrimination? To say "yes" to this question is to adopt without qualification Catharine MacKinnon's extreme formulation of male-female interactions. We see here the characteristic unwillingness to draw distinctions that has plagued feminist activism for some time.
One result of the legal developments discussed in the preceding section is the Sexual Harassment Industry itself. The complexities of the laws, especially as they apply to the "lower level" of colleges and universities, raise issues that most academic administrators have not been equipped to deal with. A cadre of specialists has therefore developed, both inside and outside the university, to take on the task of guiding academic officials through policy-making, training, and implementation procedures. Overlooked in the eagerness to comply with EEOC guidelines was an evident consequence: Academics are now placed in a situation in which their employers have committed themselves to an unprecedented program of policing the faculty a radical innovation in academic life.
But more is at issue here than faculty discontent. The Sexual Harassment Industry has been waging a struggle on two fronts. The first, largely won, has succeeded in rewriting the law. The other, more far reaching, has as its aim nothing less than a restructuring of patterns of behavior, customs, and traditions specifically, the transformation of relations between men and women. The two efforts work in tandem, legal action being the threat that lends force to the insistence on redrawing the boundaries of permissible conduct. It would be foolish, in the light of feminist proclamations, to view the latter as merely an unintended consequence of the former.
As Michael S. Greve has argued, when trivial conduct is characterized as sexual harassment, this
is not an excess of but central to the feminist project. After all, if "sexual harassment" captured only serious offenses, we might as well make do with torts and contracts. Feminism's aspiration is to capture the conduct that escapes the common law and to subject it to ideological critique and to legal sanction. "The entire structure of domination," MacKinnon writes, "the tacit relations of deference and command, can be present in a passing glance" not to mention repeated hugs and social kisses.
If personal relations are a constantly negotiated game, what the Sexual Harassment Industry, inspired by feminist ideologues such as MacKinnon, is attempting to do is alter the terms of the negotiation so that women hold all the cards. Flirtatious behavior or a casual touch is recast as a potentially serious harm by the addition of the concept "unwanted" or "unwelcome," with its clear premise that only what a woman "wants" is permissible. Once this view becomes routinized, it will be difficult to challenge such a privileging of one sex's "wants" over the other's, for merely to raise a question about it invites the retort that one is promoting oppressive behavior toward women (or is selling out to the patriarchy).
In such a situation, it would be refreshingly honest if feminists were to say, "Tough! You men had a good run for your money; now we've got the winning hand." Instead, feminists dress up their game in utopian jargon about greater justice although, as many critics have pointed out, were the extremist feminist cause to succeed, it would be just another instance of one abusive group being replaced by another. The basic dynamics of the game would remain unchanged.
Lin Farley's book made a strong case for the need for a concept such as "sexual shakedown." Recounting story after story of women who had appalling experiences in their jobs, Farley demonstrated that some recourse was indeed needed for women whose work lives were made intolerable by the sexual aggression of men. But there is a long distance between objecting to the intolerable and demanding the comfortable, and we have crossed that space in an astonishingly short period of time. The concept of sexual harassment has by now become so pervasive that it is hard to imagine a time when the awareness of it, and the terminology it deploys, did not exist. Yet it seems as though the establishment of sexual harassment as a major category of illegal behavior is taking us into a future in which sexuality itself as innuendo, as allusion, as a vital part of life will increasingly be viewed as corrupt and illegitimate. Jeffrey Rosen captured this aspect of what is happening in a recent article on the incoherence of sexual harassment law, in which he commented that MacKinnon has "nearly won the war to transform Title VII from a law that bans sex discrimination to a law that bans sexual expression."
Farley's work, however, also suggested another side of the coin. Some of the cases she discussed, such as that of Elizabeth Ray, who was employed by Congressman Wilbur Hays for a job for which she was unqualified, testify to the ways in which women have always been able to use their sexuality as a means to upward mobility. Is closing this avenue down (assuming that this were even possible) what women necessarily want? All women? Obviously the answer depends on whether one is on the receiving end of such perks or is left out, an angry "third party."
The issues lurking behind sexual harassment, then, have to do not only with fairness and equality in the public sphere but also with our expectations of the kind of society we want to live in, and of who we are bodies and souls as we go about our daily activities. These are basic matters, arousing passion and resentment, for the truth is that women are no more united than are men in their pursuit of their individual ends and, like men, will use whatever means it takes to achieve them.
But it is the nature of feminism, as of all other social movements, to propose ever more expansive definitions of the problems over which it seeks to arouse public outrage. Rhetoric makes its own demands, and one does not draw public attention to an issue by declaring it to be only peripheral to most people's lives. This is borne out by the literature on sexual harassment. In their voluminous writings, the proliferating group of experts in this new field blur major and minor infractions, conflate gross offensiveness with a mere word or gesture that made someone perhaps only a bystander "uncomfortable," and even suggest that rape is implicit, if not inherent, in every unwanted touch or look. The connection is made explicit in a typical brochure, distributed at Southern Illinois University at Carbondale, which states, "Sexual harassment can be as subtle as a look or as blatant as rape. "And even lawyers specializing in sexual harassment write without embarrassment about the difficulty of defining the offense. Comparing it to the "I know it when I see it" view of pornography, attorneys William Petrocelli and Barbara Kate Repa, for example, advise women that the "gut-check is the best barometer in knowing whether you've been sexually harassed at work."
Because the Sexual Harassment Industry defines its concerns as being above all with the wrongs that men do to women, there has been little feminist complaint about its excesses, about the tense environment it creates, or about the many ways in which it infringes on freedom of expression and association. But as is becoming increasingly clear, the charge of sexual harassment can be leveled against anyone. Women (both heterosexual and lesbian) are suddenly finding themselves on the defendant's end of legislation they thought could apply only to men. As we will see, some women consider this a corruption of sound policies and seek not a reconsideration of those policies but their restriction to agents of the "patriarchy," so that women may safely be kept out of their reach. To "feminists accused of sexual harassment" (to adopt Jane Gallop's catchy phrase), the landscape of sexual harassment law may look a bit different now. But to critics such as myself, women's ensnarement in the trap of sexual harassment allegations is simply a consequence of wrongheaded policies, wrong even when they target men, as was originally intended.
The power of the charge of sexual harassment is, at the present moment, enormous. It can unleash formidable institutional forces against an alleged harasser, often with a complete absence of due process. Institutions, which, as outlined above, are required by law to take allegations seriously, go into action as soon as the words "sexual harassment" are uttered. Southern Illinois's brochure, for example, contains not a single word of warning about filing false charges of this extremely subjective offense. To the contrary, it promotes vigilantism: "All members of the university community are encouraged to speak out when they see, hear of, or experience incidents of sexual harassment." For the accused, consequences can be so grave that the only way to justify them, it would seem, is for accusers and their advisers to magnify the harm supposedly inflicted on the person who claims to have been harassed. And this is what has been done, as "complainants" are rapidly transformed into "victims" and "victims" of sexual harassment gain the status of "survivors," tantamount to those who have suffered brutal assault, torture, or persecution.
Not to be outdone, psychology has joined in the fray, as scholars refer to the "grieving" that women who have experienced sexual harassment must be "allowed" to do (preferably with the help of support groups and counseling services). Even post-traumatic stress disorder is now routinely attributed to "victims" of sexual harassment, and therapists regularly testify to that effect. It has been said, with a good deal of accuracy, that sexual harassment is the "whiplash injury of the nineties," as lawyers and opportunistic plaintiffs cash in on the available damages. But it is no laughing matter that a professor making this comment in class might well find himself branded a sexual harasser. Moreover, the advent of sexual harassment regulations is having an inhibiting effect on the free circulation of words and ideas on campus, as universities twist themselves out of shape writing policies that attempt, oxymoronically, to guarantee academic and expressive freedom while facilitating as is required by law charges of hostile-environment harassment.
It was probably only to be expected that sexual harassment vigilantism would be extended to the attempt to ban, or otherwise regulate, consensual relations between individuals who occupy "hierarchically" distinct positions relative to one another. This ban, increasingly put into effect in colleges and universities, can apply to administrators and their staff, to professors and students, to graduate teaching assistants or lab assistants and their students, and so on down the line to anyone in a "hierarchically superior" position vis-a-vis any other person in the school or workplace. After all, according to MacKinnon, "economic power is to sexual harassment as physical force is to rape." The banning of "asymmetrical" relations shows what can happen when such pronouncements are taken seriously and when a movement explicitly committed to erasing the boundaries between the private and the public spheres is allowed to influence policy-makers.
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Daphne Patai is in the Department of Spanish & Portuguese at the University of Massachusetts at Amherst. Her writings have been published in many journals and magazines, and she is the author, with Noretta Koertge, of Professing Feminism.
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This is a brillliant book, written by a scholar and feminist who has worked and taught in women's studies programs. As relevant today, in 2015, as it was when it was written.
i bet you money the anonymous review was written by a guy who checks reddit while getting off to my little pony while wearing 10 fedoras