Sex Discrimination

ME TOO MOVEMENT BASED IN LITIGATION

26 DECEMBER 2017

By Catherine A. MacKinnon

Women’s voices recounting sexual abuse being heard, believed, and acted on is a real change.

The accountability for sexual harassment seen today, termed “voluntary compliance” in the discrimination field, has been driven primarily by mainstream and social media, not by litigation. But make no mistake. If sexual harassment had not been recognized as a legal claim for sex discrimination decades ago, powerful, prominent men would not be losing their lucrative jobs, political and academic positions, deals and reputations.

Transforming a privilege of power into a disgrace so despicable that not even many white upper-class men feel they can afford to be associated with it took decades of risk, punishment and work, including legal work.

It was legal recognition that broke the rule of impunity that the more power a man has, the more sex he can exact from those with less power. Destroying the legitimacy of what women previously just had to live through required effective legal intervention based on recognition of the reality that this practice of inequality is sexual and gender-based.

Despite the inadequacies of the legal system, this breakthrough was a precondition for this moment of cultural transformation. And the moralistic conflation of the inappropriate sex of “sex scandals” with reports of sexual exploitation and predatory molestation is at last being disentangled.

Most importantly, I suspect that a lot of the sexual harassment that has been a constant condition of women’s lives since forever is not happening just now.

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It is something of a miracle when anyone claiming sexual violation is believed, even if it takes multiple accusers. But the odds of being believed are irrelevantly improved by any kind of privilege – be it race, ethnicity, religion, class, celebrity status, nationality, caste, sexuality, age, gender, or combinations of these.

The prominence of the harasser stokes media interest, too, although anyone who sexually harasses women is plenty big to his targets. As stunning as the revelations have been to those who failed to face the long-known real numbers, the structural and systemic underbelly of this dynamic has only begun to be revealed. Sexual harassment, as I wrote in 1979, is “less ‘epidemic’ than endemic”.

A lot of women’s work, like the rest of women’s lives, is sexualized. Working for tips in a restaurant to make anything close to a living wage, for example, largely requires women in effect to sell themselves sexually. The entertainment industry commodifies the sexuality of the women in it. The fact that so many of the exposed harassers in the entertainment field subjected their victims to a pornographic spectator sexuality, masturbating over them in real life like consumers do over women in pornography, is no coincidence. Pervasively normalized, this is what an endemic abuse looks like.

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In its fundamental dynamics, sexual harassment turns real work into a form of prostitution. The imperative to exchange sex for survival, or its possibility whether real or not, rules women’s inequality, hence women’s lives, worldwide. In prostitution, virtually all of women’s and girls’ options are precluded except for this one, making her consent to it, or choice of it, fraudulent and illusory.

Women who supposedly have human rights, including equality rights in employment and education, are reduced to this same floor of women’s status when tolerance of sexual harassment, or sexual delivery in any form from objectification to rape, becomes a requirement in the paid labor force (including in paid housework, where it is widespread) or in educational or career advancement. As one prostituted female colleague once observed to me, “… and you have to do all that other work, too”. This is what is being widely rejected today.

If requiring sexual use as the price of survival is a human rights violation when combined with a real job or other entitlement, it certainly violates human rights when it is the only thing a woman is valued for. Yet it is not effectively illegal to buy a person for sexual use in most places.

When will we see near unanimity of revulsion and rejection when sexual harassment’s dynamic in its pure form – prostitution – is exposed? Or will those who report it – women and girls, men and boys, transgender persons – continue to be stigmatized, shamed, blamed, their violators defended? When will the men who outright buy others for sexual use be unmasked, rejected and penalized as the predators they are? That will be the transformation this one prepared.

Meantime, many social sectors are recognizing their obligation to foster environments free from sexual objectification, pressure or aggression, in which reporting of sexual abuse is welcomed rather than punished, accountability not impunity prevails for individuals or institutions that engage in or enable such abuse, and excellence and inclusion rather than hierarchy and fear actually operate as standards.

Real equality, finally, could begin here.

Catharine A MacKinnon, who conceived sexual harassment as sex discrimination in the mid-1970s and participated in its legal recognition, teaches law at the University of Michigan and Harvard Law School

IN THE NEWS – FAIR PAY ACT EXTENDS TIME FOR CLAIMS

President Obama signed into law on January 29, 2009 the Lilly Ledbetter Fair Pay Act, extending the time period for filing of wage discrimination claims. This legislation was passed specifically in response to a 2007 decision of the U.S. Supreme Court dismissing as untimely an employee’s Title VII sex discrimination claim that for many years she was paid significantly less than her male counterparts for performing the same job.

Most discrimination claims require timely filing with the EEOC or applicable state agency. In Florida, claims under Title VII and/or the Florida Civil Rights Act must be filed with the EEOC within 300 days, and with the Florida Commission on Human Relations (the FCHR) within 365 days, of the incident giving rise to the claim.

While this rule makes sense with respect to discreet acts of discrimination, such as termination of employment, many critics of the U.S. Supreme Court’s decision in the Ledbetter case (including Justice Ruth Bader Ginsburg, who wrote a strong dissenting opinion in the 5-4 decision), have pointed out that because workers generally treat salary information as confidential, an employee may be unaware for years that a pay disparity exists. In the Ledbetter case the plaintiff, who had worked as a supervisor at a Goodyear Tire and Rubber Company plant for 19 years, started out at the same salary as her male counterparts. By the time she discovered the pay difference as she neared retirement, her salary was 40% lower than male supervisors, who had received significantly higher raises over the years.

Under the new law, the statute of limitations period is restarted every time the employee receives a paycheck.

As a practical matter, this decision means that more employees will have the opportunity to file wage claims under the sex discrimination prohibition in Title VII (which provides higher damages), and will no longer be limited to the remedies under the Equal Pay Act (which has a lower cap on damage awards and no provision for punitive damages).

IN THE NEWS – SUPREME COURT TAKES ON RETALIATION ISSUE

A significant employment law case involving retaliation under Title VII is on the docket for the U.S. Supreme Court, which opened its 2008-2009 term on October 6. Oral arguments will be heard on the case of Crawford v. Metropolitan Gov’t of Nashville. In that case the Sixth Circuit Federal Appeals Court held that an employee who is fired in retaliation for statements made during a company’s internal investigation of sexual harassment allegations falls outside the protection of Title VII.

In the underlying case, Plaintiff Vicky Crawford claimed that she was fired because of statements she made to the company’s H.R. representative when Crawford was questioned about sexual harassment allegations another employee had made against Crawford’s supervisor. Crawford was not the employee who made the original complaint. However, when called into H.R. and questioned, she confirmed that she too had been sexually harassed by the supervisor.

Crawford was fired shortly thereafter, and filed a lawsuit claiming retaliatory discharge in violation of Title VII, which prohibits retaliation against an employee because that employee “has opposed any practice made an unlawful employment practice by this subchapter [of Title VII],” or because the employee “has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

The court in the Crawford case held that even if Crawford’s employer fired her in retaliation for statements she made in the company’s internal investigation, that investigation was not an investigation “under this subchapter” because it was purely internal. In other words, no EEOC complaint had been filed, nor was any lawsuit pending.

That outcome, though counterintuitive at first blush, does have a certain logic behind it. The court in Crawford reasoned that if Title VII’s retaliation protection were extended to cover every internal investigation conducted regardless of whether any formal charges had been filed, employers would be less likely to conduct full investigations based solely on internal complaints for fear that they would be blanketing every employee interviewed with immunity from firing. And indeed, it is not difficult to imagine situations where nonperforming employees could take advantage of the fact that their supervisor has been accused by another employee and attempt to shield themselves from disciplinary action by confirming completely baseless allegations.

Employee advocates and some academics, on the other hand, view the outcome in Crawford as having a profound chilling effect on the willingness of employees to speak truthfully about a supervisor’s harassment if interviewed by H.R., rendering the company’s investigation completely ineffectual, and impeding the employer’s legitimate objective of ridding the workplace of sexual harassers.

It will be interesting to see how the Supreme Court rules on this case.

IN THE NEWS – RESTAURANT CHAIN PAYS $1MILLION SETTLEMENT TO MALE SERVERS, BARTENDERS AND JOB APPLICANTS

Hiring preferences based on gender can result in significant liability for your company, as illustrated by a recent federal court case filed against Razzoo’s Cajun Café, a Texas-based restaurant chain. As part of its image, Razzoo’s told restaurant managers to maintain an 80/20 ratio of women to men bartenders. This resulted in a low number of male servers who were promoted to work behind the bar, and low hire rates for male job applicants. Even those men who were promoted to bartender were excluded from working at the high-paying “girls only” bartending events. The company’s website depicts servers and bartenders predominantly as young, attractive women, with only an occasional male employee shown.

The EEOC filed suit under Title VII on behalf of the male servers, bartenders and job applicants, and settled the case last week for $1 million, primarily to be distributed among the affected applicants and employees. A portion of the settlement proceeds is also earmarked to establish company-wide HR policies and training to prevent future gender-based discrimination.

The lesson to be learned from this case is that efforts to create a marketing image do not excuse excluding employees based on gender. The same principle applies to age, race, disability, religion and national origin. Caution should also be used not to bring preconceived notions about the stereotypical applicant best suited for the job into the interviewing and hiring process.