Recently, a number of women have publicly posted that they have experienced varying degrees of sexual harassment. The charges include Shi Hang, a cultural celebrity, as well as ordinary men who are not in positions of power. Every response of the men involved made people sigh that there was no consensus between men and women on what "sexual harassment" was. From slut shaming to understated "flirting" claims, it all increases the psychological cost of each victim's pursuit of dignity.
Women have been fighting sexual harassment for less than a century. The term "sex-harassment" was coined in 1975 by three Cornell professors to refer to once-unspeakable experiences of women. In 1979, the law was blank in the United States.
Unlike racial harassment, the law of the time failed to treat sexual harassment as an incident occurring within the broader social structure. The judges prefer to interpret it as a "less sensible tease" and "one cannot accuse a man of trying to tease." Their judgment of victimized women was "too sensitive to discordant relationships."
In 1978, in Washington, D.C., Michelle Vinson, a young bank clerk, was abused by her male boss, Sydney Taylor, shortly after joining the company. After more than three years of living for a living, she finally filed a lawsuit in federal district court. Soon after, however, the bank fired Vincent on the grounds that he had "taken too much sick leave" and countersued Vinson.
In 1986, Justice Rehnquist issued a judgment on behalf of all justices: "There is no doubt that if a manager sexually harasses a subordinate because of his or her sex, the manager's conduct constitutes 'discrimination' on the basis of sex." Harassment that causes emotional or psychological harm is as illegal as harassment that causes tangible financial loss. At this point, the seven-year lawsuit finally came to an end.
Vinson's victory has promoted the improvement of the working environment for women in the United States and provided a legal basis for more women who have the same experience. But she also reminded everyone that "we still have a lot to do, such as teaching our sons to respect women, and educating our daughters." ”
Vinson's case is the first case in the United States to resist sexual harassment. Because of Gender: Ten Cases That Changed the Workplace for Women in America chronicles the reefs and storms of this lengthy litigation.
For a long time, even today, sexual harassment has been seen by many men as an affirmation of a woman's sexuality, an admiration, not an insult. What is masculinity and what are feminine traits, gender education from childhood to adulthood has a profound impact on everyone. Unfortunately, these old stereotypes have not been broken. Harassers often argue that everything is just an innocuous joke, but that it is just a man's unbridled wreckage; The harassed person is trapped in self-blame and self-doubt, not knowing what he has done wrong and whether he is sending the wrong signal.
We must emphasize that sexual harassment is never a misunderstanding in private relationships, but rather widespread sexism and bullying in the public sphere. Today, although women have gained more practical rights, the different perceptions of gender in the deep social and cultural depth are still a haze entrenched over women's heads, which can bring trouble at any time. As written in the book Because of Gender, what we call sexual harassment today has existed since women left the house and started working. Let's re-read this book to examine the cultural reasons behind gender inequality.
Because of Gender: Ten Cases of Changing the Workplace Environment for Women in the United States, by Gillian Thomas, translated by Li Mingqian, Translin Press, September 2019.
cultural myths and social instincts,
The soil of sexism
In the late 70s of the 20th century, the term "sexual harassment" had just entered the public discourse and legal vision. The term "sexual harassment" was coined in early 1975 by three professors in Cornell University's Human Affairs Program. The program offers a range of social justice lessons, including a course on women and work taught by Lynn Farley.
Carmita Wood, secretary of a physics lab at a university, approached Farley for help. After enduring three years of snooping, touching and other sexual assault by his superior, the head of the lab, Wood resigned. Wood's request to resign was denied because the hearing staff deemed her departure merely "for personal, not persuasive reasons."
Farley and her colleagues Susan Meyer and Karen Sovigne both want to help Wood. They knew that Wood's ordeal was not unique, that they had heard horrific stories from their schoolgirls and had experienced them in their previous jobs, but they didn't know what to do about it. They appealed to about 100 lawyers across the country to provide Wood's guidance on filing a case and to campaign for women who shared Wood's experience, but they struggled with how to describe Wood's story succinctly. After deliberating and rejecting a number of words (including "sexual coercion", "sexual intimidation" and "sexual blackmail"), they found a suitable term - "sexual harassment".
Farley, Meyer and Sauvigne's efforts on behalf of Wood had the desired effect. Eleanor Holmes Norton, then president of the New York City Human Rights Commission, held a hearing in April 1975 on women's rights in the workplace, where Farley directly discussed sexual harassment. "Most male managers see this as a joke and at most as 'not a serious matter,'" Farley testified, "and what's even more frightening is that a woman who openly opposes the harasser can suddenly be seen as a crazy, eccentric, and even woman." ”
The incident caught the attention of New York Times reporter Enid Nemi. So, in August 1975, she published the article "Women Begin to Speak Out Against Sexual Harassment at Work." This is the first time the term "sexual harassment" has appeared in a national publication. (Not all women welcomed the new derogatory label: A female editor published a sarcastic rebuttal in Harper's Magazine.) She wrote, "Harassment, or, as some call flirting," "provides a reason for women to elaborately apply lipstick in the morning, and possibly a topic in the women's bathroom at 4:30 p.m.." ”）
A still from the movie "Black Swan" (2010).
Soon after, The Wall Street Journal published its first article on the issue, and the same month Red Book launched a survey asking readers to document their sexual harassment. In November 1976, an article analyzing the findings described the results of the survey as a game that was spread across "executive suites, stenography rooms, and ... The "plague" of the assembly line: In more than 9,000 surveys, more than 90 percent reported experiencing sexual harassment in one or more forms. "Both men and women come to work with a lifetime of emotional baggage – they were taught as a child what masculinity is and what femininity is. Cultural myths and social instincts determine the way men and women treat the opposite sex," the article concludes, "and we are only beginning to unpack this baggage, to scrutinize it, to try to replace the old and outdated." ”
Women's efforts to "untie the baggage" through litigation have brought mixed results. Racial harassment was considered an illegal variant of racial discrimination as early as 1971, but sexual harassment has hardly progressed. Judges are reluctant to label "sexism" on what they see as just irrational provocations. As a result, throughout the '70s, many judges dismissed complaints alleging abuse from superiors, arguing, "You can't blame a man for trying to tease." ”
These early cases were cliché: male managers made undivided demands on female subordinates, female subordinates refused, and male managers fired female subordinates. One woman, Paulette Barnes, was a secretary at the District of Columbia Environmental Protection Agency who lost her job after turning down a courtship from her superior. The judge dismissed Barnes' Title VII lawsuit, which in this case refers to Title VII of the U.S. Civil Rights Act, saying it was merely a "conflict caused by being too sensitive to discordant human relationships." In Arizona, Jane Cohen and Genova Dwayne, civilian staff members at eye care giant Dr. Len, chose to leave their jobs unwilling to endure endless verbal and physical harassment by managers. The judge dismissed their anti-discrimination lawsuit, finding that the manager's misconduct "appears to be nothing more than a personal proclivity, inclination, or habit."
A California judge dismissed Margaret Miller's Title VII lawsuit. Margaret was fired for refusing to "pander to" her superior's sexual demands. The judge ruled that such requirements could not be discrimination on the basis of "sex" because they were too common to regulate. "Women's attraction to men and men's attraction to women is a natural gender phenomenon that plays at least a subtle role in most individual decisions."
As these judgments show, men treat women as sexual objects (and abandon them when they show reluctance), which is not considered to be protected by Title VII. In contrast to other forms of discrimination that are explicit hatred of a particular group, sexual harassment is seen by many as the result of attraction – an appreciation, not an insult. In addition, treating a manager's sexual assault as a purely "personal" act that has nothing to do with the job duties to which he or she was assigned also means that the manager's employer will not be held liable for it.
As feminist jurist Catherine McKinnon detailed in her landmark 1979 book, Sexual Harassment of Working Women, initially sexual harassment laws involving specific harassers and targets were a vacuum. Unlike racial harassment, the law fails to treat sexual harassment as an incident occurring within the broader social structure. Under this structure, men still dominate the world, and women remain second-class citizens. As McKinnon explains:
It is true that the relationship between men and women is considered a private relationship, but this fact cannot hide the fact that it consolidates the subordinate position of women in the workplace and in society as a whole... Once this "privateness" is placed within a hierarchical social structure, then for each person the relationship will be tantamount to race relations.
McKinnon said that changing the way the law treats sexual harassment requires persuading courts to accept two far-reaching principles: first, harassment is not just that a man is attracted to a woman, it is "gender-based" because the victim's female identity is the reason for the harassment; Second, unwelcome sexual behaviour in the workplace is not only private in nature, it directly and negatively affects the "terms, conditions or special treatment" of women's employment, which most men have never experienced.
Sexual Harassment of Working Women by Catherine McKinnon.
Sexual harassment, a form of sexism
In 1976, the Federal Court first recognized sexual harassment as sex discrimination, finding that sexual harassment "creates artificial barriers to a woman's employment while leaving the other sex unaffected," and the trend began to reverse. In the years that followed, a number of other courts rendered similar judgments in favor of the plaintiffs.
What these success stories have in common is that the women who filed the lawsuits rejected sexual demands from their superiors. There is no doubt that this overture is unwelcome, and these women have been able to prove that they are of good "character". In addition, they have all been punished for their moral integrity: they have all been dismissed or forced to leave their jobs and have suffered tangible financial losses as a result. Catherine McKinnon named this harassment quid pro quo (Latin for "in exchange for the other"), describing courtship as part of a proposed deal: Submit to me and you keep your job.
But McKinnon also defined a second type of harassment that was, and still is, more common: "work environment" harassment, now widely known as "malicious work environment." Her description fits the typical characteristics of this type of behavior: a woman encounters nasty courtships, perhaps simply because she has a female body, and such encounters can become part of her daily professional life. At work, she may often be touched or kneaded, squinted eyes, raped, raided and kissed, arbitrarily commented, deliberately isolated, bullied at work, but these are never explicitly related to her work... As a work environment, sexual harassment usually does not require a woman to explicitly answer whether she agrees or not before further action can be taken. The threat of losing a job is more straightforward in quid pro quo harassment and more subtle in this type of harassment, but its coercion is no less coercive than the former... This involves "hypocrisy", tensing nerves, being vigilant, skillfully courting and suggesting sexual scales or possibilities in the relationship, while avoiding asking her directly "how" to avoid incurring her public rejection.
Michelle Vinson's experience does not fit neatly into either form of harassment. Although Vincent claims that Sydney Taylor has linked her sexual demands to the threat of firing her, this is typical of quid pro quo sexual harassment. But unlike defendants in successful quid pro quo sexual harassment lawsuits, Taylor, as a manager, never went on to carry out those threats. He didn't have to, because Vinson compromised. And, unlike those who won, Vinson never suffered any quantifiable financial loss. Instead, she received the highest ratings, performance awards, and promotions (which the bank acknowledged in the final lawsuit that Vinson deserved).
Vinson's description of Taylor's coercive sexual behavior—touching, peeping, exposing himself—fits in many ways the characteristics of "work environment" sexual harassment. On weekdays, Taylor would head to a strip bar down the street, and upon his return, he would peruse pornographic magazines in front of Vincent and other female bank employees. While Vincent wasn't being raped, touched or spied on, her work environment was also "sexualized." No court has ever sorted out this mess of facts.
Ludwik knew a Washington lawyer named John Marshall Mysburg Jr. who was experienced in handling employment discrimination cases. Ludwik invites Fort Miles to meet Vinson. With Ludvik's kind encouragement, Vinson spent two hours recounting his experience in detail. "I'll never forget that day because she was such a remarkable person," Mr. Mysburg said, "and she was very expressive, beautiful and intelligent." Her story was "the worst thing I've ever heard." Fort Mysburg concluded, "If it's not sexual harassment, it's nothing." ”
Vinson told Fort Mysburg that Taylor had molested several other women at the bank. One of them, Christina Mallon, was another cashier when Vinson joined in 1974. Early in Vinson's arrival at the branch, she had seen Taylor misbehave and touch Malone on multiple occasions and even followed her in the office. Another time, while they were in the bathroom, Taylor burst in and intimidated Malone in a erotic way, rubbing her non-stop with his crotch. At that time, Vincent never asked Malone about it, but imagined it as a broken relationship and saw no reason to ask about it. Malone was eventually fired. Later, Malone told Vinson that Taylor had been pestering her to have sex with her and had once slapped her.
A still from the movie "Black Swan" (2010).
It's both a farce,
Another nightmare and disaster
In the summer of 1979, Fort Mysburg accepted a position with the Equal Employment Opportunity Commission in the Miami area, which meant he had to transfer Vinson's case to someone else. Fort Mysburg has decided to leave the case to someone who is reliable. He contacted Patricia Barry, a solo practicing attorney known for representing federal employees in employment discrimination lawsuits. Barry had never taken on a sexual harassment case before, but she was confident of Taylor's heinous abuse, Vinson's credible behavior and evidence from two other staff members who Fort Mysburg had listed as witnesses. Barry held a copy of McKinnon's just-published book, "Sexual Harassment of Working Women," and called it "my Bible." The "working environment" theory, also known as the "malicious work environment", would form the basis of Barry's litigation strategy, although it had not yet been accepted by a court.
Winter is coming to trial, and Fort Mysburg is particularly concerned about the case and Michelle Vinson. By then, he had obtained written testimony from Sydney Taylor. Fort Mysburg recalled that the evidence took only 30 minutes, and Taylor casually denied all the allegations, arguing that he had no relationship with Vincent other than a professional relationship.
Vinson v. Taylor commenced on 22 January 1980 and was presided over by John Garrett Payne. The year before, President Carter appointed Payne as a federal judge. The year Brown v. Board of Education was senten, Payne entered law school and declared that his pursuit of a legal career was influenced by the civil rights movement. He is African-American, but his experience does not in any way reflect any special care he gives to victims of discrimination cases. For nearly a decade, he served in the Superior Court of the District of Columbia, which primarily handles criminal cases. Prior to that, he was a lawyer in the General Litigation Division of the Tax Department of the Ministry of Justice.
A still from the movie "Black Swan" (2010).
When it was the bank's turn to give evidence, Sydney Taylor stood on the witness stand and denied all of Vinson's allegations against him. In fact, he said, while he couldn't give specific examples, it was Vincent who intended to approach him. He said Vinson's clothes were revealing and at one point he had to ask her to go home and change her clothes. He also claimed that Vinson's lawsuit was intended to retaliate against him because, shortly before she stopped working, Taylor denied her request for a promotion to the position of new cashier.
Barry felt that Payne thought Vinson was a "slut" to judge like this. More than a month later, Payne delivered his verdict. Considering the circumstances of the trial, the outcome was already expected. "After careful consideration of the evidence presented by the parties, this court finds that the plaintiff is not a victim of sexual harassment or gender discrimination." Payne wrote. To support his reasoning, Payne listed a series of "rulings on the facts at issue." One of them states that "[Vincent] is not required to sexually bribe Taylor or other employees of the Capital Bank, whether for the purpose of keeping his job or for promotion", and in addition, "if (Vincenson) and Taylor do have a private or sexual relationship during his employment at the Capital Bank, the relationship is a voluntary act of the plaintiff and has nothing to do with his continued employment or promotion at the Capital Bank."
So Payne dismissed Vinson's lawsuit in two ways: he doubted that Vinson's statement was untrue — "if" there was a sexual relationship — and if it did, then her claim that "the relationship was involuntary" was lying. He had no idea that a woman might acquiesce in her manager's behavior, even if she didn't want it. (Apparently, he also failed to take into account the credibility of both sides.) Sydney Taylor has denied that he had sex with Vinson. Payne's verdict alleges that sexual intercourse may have occurred, which also means that Taylor may have committed perjury. But Payne made no factual determination. ）
Even if Judge Payne was willing to believe that the sexual act between Vinson and Taylor was involuntary, he had another question about her claim: She never told anyone in the bank about the harassment. Payne said Taylor's position at the bank was a branch manager, which was not enough to hold Metrobank accountable for his actions. The company did not assist or condone Taylor's conduct. After all, the company has an equal employment opportunity policy that prohibits gender discrimination (but is silent on sexual harassment).
Payne's meaning could not be clearer. It's just another "interpersonal conflict" triggered by "personal proclivities, tendencies, or bizarre behaviors," a "natural sexual phenomenon" that happens to "happen in the hallway of the company rather than the alley."
Sexual harassment, in the daily work environment
Introduce the most insulting gender bias
In March 1980, luck struck again, and the Equal Employment Opportunity Commission updated its Guidelines Against Sex Discrimination. This is the first time the Equal Employment Opportunity Commission has declared that sexual harassment violates Title VII. It is no coincidence that this update comes during the tenure of Eleanor Holmes Norton, Chair of the Equal Employment Opportunity Commission. In the 70s of the 20th century, Norton led the New York City Human Rights Commission, providing Cornell Fally with the first public platform to describe and publicly condemn sexual harassment.
The new Guide benefits the Vincenson case in a number of ways. The Guide holds that staff members who acquiesce in harassment do not lose their right to claim. When the harasser is a manager, the Guidelines impose automatic employer responsibilities, regardless of whether the employee has reported the harassment. The Guidelines define what constitutes an offence very broadly, including harassment that creates a "hostile work environment":
Sexual harassment is unwelcome solicitation, solicitation of sexual favors, and other verbal or physical conduct of a sexual nature, where: (1) explicit or implied submission to the act becomes one of the terms or conditions of a person's employment; (2) a person's submission or rejection of such sexual harassment becomes the basis for influencing employment decisions against that person; or (3) such conduct is intended to unreasonably interfere with a person's work performance or create a threatening, malicious, or offensive work environment; or such actions lead to the above consequences.
At the beginning of 1981, more good news came. The District of Columbia Circuit Court of Appeals — the superior court that will hear Vinson's appeal — became the first federal court to consider hostile work environments to be sex discrimination under Title VII. In Bundy v. Jackson, the court ruled that the harassment was ongoing and that the harassment (per se) discriminated against "terms of employment, conditions, or special treatment." The court relies on the Equal Employment Opportunity Commission's new Guidelines and McKinnon's Sexual Harassment of Working Women:
Racial discrimination against individuals, despite intentional and intentional purposes, may amount to mere verbal insults, but the insults may also bear Chapter VII responsibilities. How can sexual harassment not be illegal when it introduces the most humiliating gender bias in the everyday work environment and often represents a deliberate attack on the privacy of others?
A still from "Presumptive Innocence" (2019).
"Voluntary" does not take into account,
The victim's cornered acquiescence
At 10:00 a.m. on March 25, 1986, the justices entered one after another. Chief Justice Warren Berg was seated in the middle of the bench, his final year on the Supreme Court. It is worth mentioning that this is the first time that the Supreme Court has heard a sexual harassment case, and one woman has been involved, she is the new Justice Sandra Day O'Connor.
Robert Trowe, a lawyer on the bank side, took the stage first. One of his first words was that employers should not be unknowingly responsible for sexual harassment. "The biggest issue in this case is whether the employer of the company should automatically be liable under Chapter VII for sexual assault by a manager against a subordinate, even if the employer did not know about the violation and did not have the opportunity to stop it."
Troh's 30-minute debate was coming to an end, so he returned to his argument that even if Sydney Taylor created a hostile work environment for Vinson, the bank was not responsible for it: there was nothing unfair about requiring employees to speak up when they realized managers were harassing them. After all, if she wanted to get relief under Chapter VII, she would have to complain to someone sooner or later. However, we believe that it is very unfair to drag innocent employers to court because of problems that the employer did not know about or that could have been corrected automatically.
It was then Patricia Barry's turn to speak. Her opening remarks echoed O'Connor's question to Troweh: The Vincent case was not tried under the new "malicious work environment" framework, but it should be. Questions turned to Judge Payne's controversial ruling that Michelle Vinson's participation in all sexual relations was "voluntary." Barry explained that "voluntariness" does not take into account the victim's cornered acquiescence, which may have been made under duress. Whether the behavior is "undesirable" should be the test.
A still from "Breaking News" (2019).
On 19 June 1986, Justice Rehnquist issued a judgment on behalf of all justices: "There is no doubt that if a manager sexually harasses a subordinate on the basis of his or her sex, the manager's conduct constitutes 'discrimination' on the basis of sex." He writes that harassment that causes emotional or psychological harm is as illegal as harassment that causes tangible financial loss. In response to Justice O'Connor's question in the rhetorical argument, Rehnquist compared it to racial harassment:
Sexual harassment that creates a hostile or offensive environment for members of one sex creates arbitrary barriers to gender equality in the workplace is similar to the adverse effects of racial harassment on racial equality. Clearly, asking men or women to endure sexual abuse in exchange for the right to be allowed to work or earn a living is as degrading and disturbing as the most jarring racial slurs.
The Vincent case changed the law,
but failed to change the culture
However, while the Vincent case changed the law, it failed to change the culture. Five years after the verdict, Anita Hill accused Justice Clarence Thomas of harassing her, and the Senate prepared to vote on the nominee Thomas to the Supreme Court without investigating the allegation at all. (He is accused of doing this while in charge of Chapter VII enforcement — around the time of the Vinson case — which makes the charge even more controversial.) ）
The 120 women jurists sent a joint letter to each member of the Judiciary Committee, and seven women members of the House planned a photo opportunity before striding toward the Capitol to request a postponement of the vote, hoping to hold a hearing to investigate Hill's allegations. As Judith Resnick is one of the 120 law professors, "The Senate's initial dismissal of the information provided by Anita Hill certainly reminds us that not so long ago, disregard for women's rights was the norm." ”
So it wasn't until Hill, an African-American woman, came forward to expose the fact that she was harassed by a powerful African-American man that the full national discussion of sexual harassment was triggered. As Catherine McKinnon later wrote:
At the Hill-Thomas hearing, sexual harassment was on real display for the first time in front of the entire world. My 1979 book, while laying the nail on the way sexual harassment could be legally addressed, failed to do so. The Equal Employment Opportunity Commission's 1980 updated Guidelines do not do this. Neither did Michelle Vinson's victory in the Supreme Court. However, all this sets the stage for this. Anita Hill did just that: her statement was firm and thorough, her testimony was well-organized, an ugly microphone stood in front of her beautiful face, and a fixed camera was always aiming at her at close range.
A still from "The Key Verdict" (2016). The film is based on the Hill case.
In 1991, before the case was retried, the bank reached a confidential settlement with Vinson, who was then in his early 30s. With this funding, she was able to complete nursing school and use the money to help victims of sexual harassment.
In 2005, the British weekly Glamour praised Vinson in a column titled "Women Who Changed Your Life." She described her victory as a "beginning" for real change, but warned that "we still have a lot to do, such as teaching our sons to respect women and educating our daughters," — in this case, she seemed to say to her 19-year-old self — "Don't let anyone do that to you." ”
Original author/[US] Gillian Thomas
Excerpt / Ho Ye Lotus
Editor/Wang Han
Introductory part proofreading / Lucie