Vol. 10 No. 7 (July 2000) pp. 398-401.

HOSTILE ENVIRONMENT: THE POLITICAL BETRAYAL OF SEXUALLY HARASSED WOMEN by Gwendolyn Mink. Ithaca: Cornell University Press, 2000. 176 pp. Cloth $21.95. ISBN: 0-8014-3664-3.

Reviewed by Odeana R. Neal, University of Baltimore School of Law. Email: oneal@ubmail.ubalt.edu

The title of HOSTILE ENVIRONMENT: THE POLITICAL BETRAYAL OF SEXUALLY HARASSED WOMEN, by Gwendolyn Mink, promises more than it ultimately offers. The book tells four stories: the story of Anita Hill's sexual harassment by Clarence Thomas; the story of Paula Jones's harassment by President Clinton; the story of the author's sexual harassment by a professor while in graduate school; and the story of the development of sexual harassment law in the United States. Of these, the last is told most forcefully and coherently.

Mink was motivated to write HOSTILE ENVIRONMENT because of her perception that Paula Jones's allegations against President Clinton were either deemed incredible or trivialized by a number of women, including a number of self-proclaimed feminists: "Against leading feminists' all-too- convenient redefinition of what sexual harassment is and what the law guards against, I wrote Hostile Environment to defend the rights of sexual harassment plaintiffs so that sexual harassment law might one day recover its feminist moorings" (p. viii). Although Mink seems to expect that political conservatives will attack women who bring allegations of sexual harassment, she seems rather surprised that the liberal left is willing to do the same thing: "Speculations about the motives and character of the women who use sexual harassment law, in turn have fueled attacks on the law itself - most often by right-wingers who think the law is a boondoggle for disreputable women, but more recently also by liberals who chafe when the law is deployed against their own men" (p. 3).

Mink's story about the history of sexual harassment law begins in 1974 with Carmita Wood, a Cornell laboratory worker who quit her job after a scientist made regular sexual advances towards her, including simulating masturbation and reaching under Wood's sweater. After quitting her job, Wood sought unemployment benefits. Whether she was entitled to them was dependent on whether she had "good cause" to leave her job. The unemployment insurance board and the state Department of Labor denied Wood's claim, finding that quitting was not her only option and that there must have been other personal reasons for her leaving. Mink uses this story as an entryway into the state of sexual harassment law at the time and carefully details the nuances of a number of Supreme Court and federal appellate and district court opinions.

This portion of the book is extraordinarily readable and engaging. By juxtaposing the language of judicial opinions with factual details about the harassment the plaintiffs in the cases

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endured, Mink successfully brings the cases to life. She shows how Title VII's prohibition on sex discrimination came to encompass quid pro quo sexual harassment and eventually came to encompass hostile environment claims as well. She sets out the shifts in standards of proof as they have evolved and also sets out the issues that the cases, particularly at the Supreme Court level have left unanswered. For example, to what degree should a determination of whether harassment has occurred turn on the subjective experience of the complainant and to what degree should it turn on expectations of "reasonableness?" Also, if reasonableness is the standard, reasonable what? Person? Woman? Harassed woman? To what degree should the alleged harasser's intentions be considered? To what degree may sexual harassment law constitutionally infringe on a harasser's First Amendment rights?

This history of sexual harassment law also details how the Equal Employment Opportunity Commission's enforcement power has played a significant role in sexual harassment law, particularly when headed by future Supreme Court justice Clarence Thomas. The history ends with a not-quite-as- engaging discussion of several rules of federal civil procedure limiting discovery of sexual harassment plaintiffs' sexual and personal history, and the Violence Against Women Act, which was recently declared unconstitutional by the Supreme Court. One significant flaw in this section of the book, however, is Mink's use of secondary sources for important claims. In one instance she cites to a law review article for the proposition that 95 percent of sexual harassment incidents go unreported (p. 77; the original article cites a WORKING WOMAN magazine survey as the primary source).

What this history does not do is give credit to the role that women have played in the creation and evolution of sexual harassment law, not as plaintiffs, but as lawyers and increasingly significant players in the national workforce. For instance, in discussing the evolution of the acceptance of quid pro quo harassment arguments, Mink writes that, "[C]ourts have charted the development of sexual harassment law according to what judges think about women's reactions to men's sexual conduct. When presented with concrete punishments inflicted on women who rejected more powerful men's demands for sex, courts began to see that unwelcome sexual advances, pressures, or demands are discriminatory expressions of desire if a woman's employment or educational status is predicated on their satisfaction" (pp. 52-53). In other words, because the judges were educated about the experience of women's lives in litigation, they came to see the light. I think the story is much more complicated. The evolution of sexual harassment law came about not because of the enlightenment of federal court judges by plaintiffs, but because of carefully constructed litigation by women's groups, women's lawyers, and the shared experience of an increasing number of women in the workplace who not only sat on the juries deciding cases, but were the sisters, wives, and daughters of the judges.

The other Mink tells stories are less forceful. Mink recounts the sexual harassment she experienced as a doctoral student at Cornell. During her first year, a senior faculty member sat next to Mink on a sofa, moved his leg against hers, touched her thigh, asked her to join him in a "private dinner," and then he hurled racial epithets at her when she said no. (Though Mink describes herself as being out of sync with most of her

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students on the basis of her politics, sex, and gender, she does not analyze the significance of the intersectionality of these characteristics. In fact, although she describes plaintiffs in some of the sexual harassment cases as being African-American, though never as white, her legal analysis does not incorporate the role of race in sexual harassment law.) Mink, appropriately concerned about the effect of her rebuff on her graduate and post-graduate career, seeks help from two professors, one a woman and one a man, who suggest to her that the offender's actions aren't really so bad. At least one of the professors told the offender, who had a position of some significance in Mink's graduate program, about Mink's complaint, thereby poisoning him further against her. After the professor pulled Mink into a bedroom at another function and chastised her for having told others about the harassment, he said that he would not hold her rejection against her when evaluating one of her exams. Mink performed poorly on the exam, but writes, "I'll never know whether I was graded down by a vindictive professor, or was given the evaluation I truly had earned, or was passed to preempt a sexual harassment complaint" (p. 14). Not until the professor harasses one of Mink's friends does she take formal action; many did not believe her and many of those who did not feel that the professor should be chastised for his actions. The complaint process became public and involved the entire Cornell community; the complaint resulted in the university president denouncing sexual harassment in a statement. Her experience at Cornell, Mink says, caused her to remain silent when a superior later harassed her after taking a faculty position at the University of California at Santa Cruz.

Interestingly, however, Mink does not tell us who the harasser is; instead, she uses the pseudonym John Untel when discussing him. She says in a footnote (p. 10) that "[although the identity of the professor is a matter of public record, all references to him in this book bear this alias," and in several later footnotes uses the cryptic words: "Source withheld to preserve Untel's anonymity" (pp. 18-19). What Mink does not tell us, however, is why she is choosing to use a pseudonym at all. Indeed, she undercuts her argument that strengthening the law can stop sexual harassment. Even twenty- five years after her harassment and speaking from a position of privilege, Mink is still unwilling to publicly confront her harasser, presumably because of the negative repercussions she thinks she will suffer. It is this unwillingness to deal with sexual harassment outside the confines of the law that I found most troubling.

Mink's political analysis of sexual harassment is far less satisfying than her legal analysis. It seems that Mink has expected too much of both the law and liberal feminism (my words, not hers: Mink uses "feminism" throughout). She writes that "[s]exual harassment law has brought predatory, intimidating, and humiliating sexual conduct under the scrutiny of laws that are supposed to promote equality" (p. 8) The problem is, however, that most women cannot or do not employ the law when they are sexually harassed. As Mink herself states in a footnote, "only one in four harassed women workers responded to their harassment in any way, whether by saying something to the harasser, talking to others about the situation, or reporting it" (p 4, n. 20). Also, even for those who wish to complain formally, finding and being able to pay an attorney may prove insurmountable barriers. Mink, then, does not get to the real heart of sexual harassment: patriarchy.

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When she discusses feminists' betrayal of Paula Jones, Mink seems to be scolding them for not doing the right thing. Indeed, if Jones's allegations are true, that the governor of a state exposed himself to her, feminists should find that single act enough to constitute sexual harassment, even if it only happened one time, even if he took "no" for an answer, even if she did not suffer a demotion in her job, and even if the harasser is generally on the "right side" of women's issues and the victim is not -- all defenses of Bill Clinton's alleged actions by various liberal feminists. However, what Mink does not seem to recognize is that the goal of liberal feminism is to allow women to be on play the game in the same ways that men have. Liberal feminism does not seek to restructure the nature of the game altogether. In fact, one might see liberal feminists' reaction to Jones's allegations as being the natural consequence of liberal feminism. Just as men have been able to manipulate and devalue women's words and experience, so too do women now have a platform to do the same thing. In fact, what many of the liberal feminists' defense of Bill Clinton comes down to is a belief that he will be more useful to them in advancing their own causes - usually tied to increased political and economic power for privileged white women.

Mink paints herself into a corner by not being willing to acknowledge the role that patriarchy plays in our system of government and laws and that unless that structure is attacked, the ability of women's experiences to be recognized and addressed is unlikely to occur. It's why she seems unable to give an adequate explanation about why Paula Jones was betrayed. She says that, "[m]any feminists defended Clinton because they were reluctant to aid conservatives in their opportunistic use of sexual harassment law to bring down a president who was 'doing a good job for women'" (pp. 136-37, quoting Anita Hill). However, why should women care whether there are conservative or liberal boots on their necks? The sexual harassment arena is about power - not just the power of the harasser over the victim, as Mink seems to see it, but the power of privilege over non-privilege. She does not, for example, question the degradation, humiliation, and abuse that occur in many workplaces; she just thinks that the degradation, humiliation, and abuse should not occur on the basis of sex (or race). But so long as sexism and other oppressions occur outside the law and courtrooms, they will continue to occur within the law and courtrooms. Political betrayal will continue to occur so long as we are willing to play politics -- and law -- as usual.


Copyright 2000 by the author, Odeana R. Neal.