THE POLITICS OF SEXUAL HARASSMENT

Vol. 16 No. 8 (August, 2006) pp.633-639

THE POLITICS OF SEXUAL HARASSMENT: A COMPARATIVE STUDY OF THE UNITED STATES, THE EUROPEAN UNION, AND GERMANY, by Kathrin S. Zippel. New York: Cambridge University Press, 2006. 274pp. Cloth $80.00/£45.00. ISBN: 0521847168. Paper $34.99/£19.99. ISBN: 0521609941. e-book format. $28.00. ISBN: 0511159099.

Reviewed by Leslie F. Goldstein, Department of Political Science and IR, University of Delaware, and Visiting Research Fellow at Fordham Law School. Email: lesl [at] UDel.Edu.

In 1979 Catharine MacKinnon published SEXUAL HARASSMENT OF WORKING WOMEN, and wrote in its preface that up until this time “sexual harassment . . . has been legally unthinkable,” by which she appeared to mean that no officials of the executive or judicial branches, responsible for applying antidiscrimination laws had yet conceptualized sexual harassment as a form of unlawful sex discrimination. When I read that statement, years ago, I took it at face value (Goldstein 1988), but I have learned from Kathrin Zippel’s new book that the statement was an exaggeration.

Zippel’s book, THE POLITICS OF SEXUAL HARASSMENT accomplishes four tasks: (1) It traces the history of the development of sexual harassment policy in three polities—the US, the European Union, and Germany; (2) offers a study of transnational norm diffusion around the issue of sexual harassment; (3) presents an analytic cross-national comparison of the public policies on sexual harassment in the US and in several EU member states, although an in-depth study of two in particular, Germany and the US; and, finally, (4) does a comparative analysis of the social movement against sexual harassment in the US, the EU, and Germany. I found it a fascinating narrative and I learned a great deal from it.

It left me with the dominant impression of wanting more—one author cannot do everything in one book, but I would have enjoyed learning more details on sexual harassment policy in countries of the EU other than Germany; Zippel presents a brief sketch of alternative directions some have taken, but not much more than a sketch. The other detail I greatly missed is that she ends the book chronologically with the election of Angela Merkel to the Chancellorship of Germany in September 2005 and with Germany having only until the end of 2005 to meet its deadline on the binding directive from the European Commission to enact a law against sexual harassment that would treat it as sex discrimination (as well as a violation of human dignity) and that would for the first time have effective enforcement mechanisms. She concludes the discussion with, “the future of the bill is uncertain.” It would have been nice had she been able to hold the presses even a few months in order to tell us whether Germany did or did not comply. One is left wondering what would happen and also without a clear sense of the sanctioning mechanisms available to the [*634] EU to bring Germany and the other member states into compliance.

The story Zippel tells begins with a small group who meet in Ithaca, New York, stimulated by some consciousness-raising discussions to organize a “speak-out” protest against something they decide to call “sexual harassment.” They believe they have invented the term, and perhaps they did. The year was 1975 (pp.53-54). But they were not alone. By January 20, 1975 the EEOC (under Republican President Ford) had filed an amicus brief on behalf of a plaintiff in federal district court who was complaining of having been fired for refusing to have sex with her boss. The brief argued that sex-based harassment was properly interpreted as unlawful sex-based discrimination because the imposition of “frequent, unsolicited sexual advances” imposes an “irrational impediment to job opportunities” and an “unwarranted working condition” that “affected the employment of women” (pp.47-48). She lost her case (CORNE v. BAUSCH & LOMB 1975). But a woman also in 1975 won her complaint at the Minnesota Human Rights Commission that the repeated sexual innuedos and invitations and unwanted, indeed plainly rebuffed, physical contacts of her boss amounted to sex-based discrimination (Farley 1978, at 128-130). On April 20, 1976 a federal district judge in Washington declared that the firing of a woman by her boss for refusing to have sex with him did indeed violate the federal law against employment discrimination based on sex (WILLIAMS v. SAXBE). By 1977, two more federal courts endorsed this reading of the 1964 Civil Rights Act, one of them a federal circuit court of appeals where the father of Catharine MacKinnon, the late Judge George MacKinnnon wrote a concurrence in the decision (BARNES v. COSTLE, July 27, 1977, and MUNFORD v. BARNES, Sept.9, 1977).

The three roughly simultaneous events of 1975-spring 1976 in Ithaca, in Arizona (where Bausch & Lomb was) and in Washington, D.C. do not appear to have any direct connection to each other. But the fact that they occur together is probably not unrelated to the fact that Congress in 1972 (something the author, unfortunately omits) greatly strengthened the reach and enforceability of the 1964 Civil Rights Act’s prohibition on race-based, nationality-based, religiously-based or sex-based discrimination in employment (for firms of 15 or more employees). The prohibition was extended to cover state and federal employees (i.e., many millions more people) and the EEOC for the first time was given the power to take employers to court for violating the act. The year 1972 was the year of probably the peak of the second wave women’s movement in the US (at least to judge from progress of the Equal Rights Amendment), and was also a year of continuing racial tensions around the civil rights movement (including summer race riots in urban areas). (In 1971 the Supreme Court had for the first time upheld cross-neighborhood busing for desegregation purposes in formerly de jure segregated systems. SWANN v. CHARLOTTE-MECKLENBURG.) [*635]

Thus the 1972 legislation from the feminist and civil rights mobilization in Congress is what produces the mid-1970s increase in the flow of discrimination cases into federal courts. In 1972 a federal judge ruled for the first time (ironically, against the EEOC as employer) that the Civil Rights Act’s prohibition on discriminating in “working conditions” meant that employers could be held liable if they did not act to correct a workplace permeated by racial taunts, verbal and/or physical (ROGERS v. EEOC, at 238-9). Such workplaces were common in the American South where the federal government was finally cracking down on whites-only employers, and where the racist white workers were taking it upon themselves to hound black workers into quitting the job. ROGERS v. EEOC is quickly followed by another federal case extending its logic to hostile environment harassment based on ethnicity/nationality (in a Native American case, MASSEY v. ILLINOIS RANGE CO. 1973). It was simply a matter of time for this judicial logic to be extended to hostile environment harassment involving women (which was all too common in all-male workplaces that were forced to accept women co-workers, such as police departments, fire departments, mines, construction sites (e.g., CALDWELL v. HODGEMAN 1981; and JENSON v. EVELETH TACONITE 1993, settled Jan.4, 1999 and topic of the 2005 movie, “North Country”).

So the two forms of sexual harassment legal concepts, “quid pro quo” and “hostile environment” were both born in judicial precedents and in EEOC briefs before the 1979 publication date of the MacKinnon book. But the book and the social movement of which the book was both a stimulus and a part certainly nurtured them. They came to maturation via scandal, especially the Anita Hill-Clarence Thomas hearings of 1991, and also the Jones-Lewinsky-Clinton scandal. The massive publicity given to the Hill-Thomas hearings caused a surge in sexual harassment filings with the EEOC. They nearly doubled from 6,127 in 1991 to 10,532 in 1992, peaking with 15,889 in 1997, the year before the Supreme Court authorized Paula Jones’ lawsuit against President Clinton (p.72).

Much of this story and more is told in the Zippel volume. She briefly alludes to but skimps on the racial civil rights cases background, but there is enough here to guide the reader interested in doing more detailed research. She does mention the role of Congress in drawing attention to sexual harassment in four days of committee hearings in 1979 and 1980, where among others, Eleanor Holmes Norton, EEOC chair under President Carter, gave testimony. The first of these hearings predated and presumably encouraged the 1980 issuance of the EEOC Guidelines on sexual harassment that warned employers about both quid pro quo and hostile environment types of harassment (pp.57-59).

Zippel’s own emphasis is on attempting to find linkages between the feminist social movement and the revolution in sexual harassment policy via judicial policy-making. Her book is stronger on the role of European activists and feminist government officials in [*636] diffusing the anti-sexual-harassment norms that they picked up from visits to the US or from attendance at international conferences where they had conversations with US attorneys, scholars, activists, or officials.

Except for the UK and Ireland (where something closer to the US approach but with much more modest damage awards developed, pp.102; 107-8; 177-9), the sexual harassment policy adopted in European countries tended to avoid policy-making via litigation and to emphasize union-management agreements on anti-mobbing rules for the workplace. Many Europeans were put off by what they viewed as Americans’ silly Puritanical views against flirtatious fraternization in the workplace. So they emphasized the hostile workplace side of the concept by forbidding “mobbing” as a violation of the human dignity of workers. “Mobbing” is the European term for “systematic workplace hostility of long duration” imposed on someone with “the goal of marginalizing and getting rid of him or her” (pp.2, 9). It is unfortunate that Zippel did not bring out more fully the racial- and nationality-grounded background of the US sexual harassment cases, because that would have highlighted for the reader the parallels to the European anti-mobbing approach. The attractiveness of the anti-mobbing approach in Europe is understandable as tensions over immigration intensify there, creating situations with certain parallels to the period of the US civil rights movement. Also, the European emphasis on dignitary harms (as distinguished from equality of treatment) would have been rendered more understandable for the reader had she pointed out the central role of human dignity as a primary constitutional right in the German Constitution and in several other European Constitutions and in the European Charter of Fundamental Rights (Baer 2004, at 589.)

The European story Zippel tells begins in the European Community in 1983 (which became the European Union with the Maastricht Treaty of 1993) and ends before the ten new nations joined the EU in 2004. In 1983, the same year that a tribunal in Northern Ireland ruled sexual harassment unlawful, but well before a court in Ireland did so in 1985, and before the US Supreme Court did in 1986, EC level officials began to push anti-sexual-harassment policies as part of their mandate under the 1976 Directive on Equal Treatment of men and women in employment (pp.18, Table 1.1; 87; 93-96, including Table 3.1; 100, Table 3.2; MERITOR SAVINGS v. VINSON 1986). At first these took the form of “soft” measures, such as a demand for action expressed in the European Parliament in 1983, a 1984 Council of Ministers recommendation to member states that they act on the problem, and a 1986 resolution from the European Parliament recommending that the European Commission (the EC’s administrative arm) take action (pp.93-96).

Why did these European level officials act? Feminist activists in Europe read books by US authors like Catharine MacKinnon (1979), knew of coverage of the issue in US media like REDBOOK, knew of the 1980 EEOC guidelines on sexual harassment in the US, had their [*637] own sexual harassment scandals to deal with, and started agitating for action in the early 1980s (pp.86-90). There is no doubt that the concept crossed the Atlantic from the US, but once in Europe it became transformed to fit European institutional traditions; hence the “mobbing” label. Both feminists and feminist-sympathetic labor union activists worked in tandem in a transnational advocacy network (TAN), which is an alliance of interest group lobbyists, sympathetic officials and scientific experts roughly similar to the concept of “issue network” used in American politics research, except that an issue network includes a variety of points of view, while members of a transnational advocacy network all work on the same side. The TAN that opposed sexual harassment in Europe had much greater success at EC/EU levels at first than at national levels, where male-dominated unions had entrenched control over labor policy. Zippel finds it surprising that the EU moved more quickly than the governments of the member-states did, but this is not such a surprise when one reflects that EU institutions are far less directly accountable to electoral majorities than national governments are. Thus elites in the EU, once committed to change, had more flexibility in which to act. Once the EU started promoting sexual harassment, not only by soft directives, but most importantly by gathering and publishing data that proved that sexual harassment was a serious impediment to equal job opportunity in Europe (Rubenstein 1987), these actions strengthened and emboldened activists at national levels to push for tougher policies. EU measures legitimized the issue as genuinely European rather than merely an American obsession. Zippel describes the political interaction as a kind of ping-pong process, since the lobbyists bounced from supranational level to national level and back, as opportunities opened or closed. She distinguishes it from the “boomerang effect” described by Keck and Sikkink (1998), but never explains to the reader what the boomerang effect is. Gradually, and very incrementally, the EU toughened its stance. It gave the member states more than ample time to adjust their policies under the non-binding directive of 1994, and finally issued a binding directive in 2002 insisting on legislation in every member-state by the end of 2005 that would treat sex-based harassment as sex discrimination in employment and would have enforceable teeth in it. For American readers, the account of how limited Germany’s response has been to these EC/EU pressures will be sobering, not to say depressing. Women victimized by truly vicious levels of sexual harassment even in supposedly “advanced” countries like Germany have very little recourse, to date.

This book offers a treasure trove of information on the anti-sexual-harassment movement in Europe and on its origins in the US. It also offers a sobering account of how difficult it is for EU institutions to move national governments, particularly when those national governments contain entrenched power structures opposed to change. Finally, what stood out to me in her account was the important role played by individual feminists who happened at one moment or another to hold an [*638] important position in EU or member-state officialdom. The importance of having feminist women in positions of power is quietly underlined in her account by her description of several who significantly advanced the development of policies condemning sexual harassment. And explicitly underlined is the pivotal role played by women who occupy the state women’s agencies that were created under EU mandate (i.e., those she dubs “femocrats”).

The book is not perfect; she does not pick up (pp.67, 207) that the US Supreme Court (in HARRIS v. FORKLIFT 1993) has rejected the “reasonable woman’s standard” test endorsed in the ELLISON v. BRADY (1991) US circuit court of appeals judgment that sexual harassment should be evaluated as to its offensiveness or intimidating qualities by the perspective of a typical member of the victim group (generally women), rather than some abstract supposedly objective standard of the imaginary “reasonable person” (see, e.g., Larson 2004, at 137). But on the whole the book is thoughtful, extremely informative, and a fascinating read.

REFERENCES:

Baer, Susan. 2004. “Dignity or Equality? Responses to Workplace Harassment in European, German and US Law,” pp. 582-601 in MacKinnon and Siegel.

Farley, Lin. 1978. SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF WOMEN ON THE JOB. New York: McGraw-Hill.

Goldstein, Leslie F. 1988. THE CONSTITUTIONAL RIGHT OF WOMEN (2d ed). Madison: University of Wisconsin Press.

Keck, Margaret, and Kathryn Sikkink. 1998. ACTIVISTS BEYOND BORDERS: ADVOCACY NETWRKS IN INTERNATIONAL POLITICS. Ithaca: Cornell University Press.

Larson, Jane. 2004. “Sexual Labor” pp.129-137 in Mackinnon and Siegel.

MacKinnon, Catharine A. 1979. SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION. New Haven: Yale University Press.

MacKinnon, Catharine A., and Reva Siegel. 2004. DIRECTIONS IN SEXUAL HARASSMENT LAW. New Haven: Yale.

Rubenstein, Michael. 1987. THE DIGNITY OF WOMEN AT WORK: A REPORT ON THE PROBLEM OF SEXUAL HARASSMENT IN THE MEMBER STATES OF THE EUROPEAN COMMUNITIES. Brussels: Office for Official Publications of the European Communities.

CASE REFERENCES:

BARNES v. COSTLE. 1977. 561 F.2d 983.

CALDWELL v. HODGEMAN. 1981. 25 F.E.P Cas. (BNA) 1647.

CORNE v. BAUSCH & LOMB. 1975. 390 F.Supp. 161. [*639]

ELLISON v. BRADY. 1991. 924 F. 2d 872.

HARRIS v. FORKLIFT. 1993. 510 U.S. 17.

JENSON v. EVELETH TACONITE. 1993. 824 F.Supp. 847.

MASSEY v. ILLINOIS RANGE CO. 1973. 358 F.Supp. 1271.

MERITOR SAVINGS v. VINSON. 1986. 477 U.S. 57.

MUNFORD v. BARNES. 1977. 441 F. Supp. 459.

ROGERS v. EEOC. 1972. 454 F.2d 234.

SWANN v. CHARLOTTE-MECKLENBURG. 1971. 402 U.S. 1.

WILLIAMS v. SAXBE. 1976. 413 F.Supp. 654.

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