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The Power Behind the Butterfly:

Applying a Power-Conscious and Intersectional Lens

to Sexual Harassment Employment Law

by Marta Lasota | Spring 2019

In light of the #MeToo movement, this article seeks to answer whether changes in the law could lead to a substantial reduction in sexual harassment in the workplace. I offer an alternative lens through which to view sexual harassment employment law. I highlight one way in which the language of sexual harassment law (under Title VII of the Civil Rights Act of 1964) could be reevaluated, starting with the “reasonable person” standard. This article argues that the “reasonable person” standard should be viewed through both a power-conscious and intersectional lens. Meaning, we should be aware of how identities of race, class, gender, age, and sexual orientation (among others) intersect and how these identities compare in workplace and societal power hierarchies. Ultimately, I call attention to Catharine MacKinnon’s idea of “butterfly politics” as a metaphor for systemic change. By applying a power-conscious and intersectional lens to the system’s smallest components – the victims of sexual harassment and the words that represent that individual in the law – we can then tackle the broader systems of power that still perpetuate sexual harassment in 2019.

1. U.S. Equal Employment Opportunity Commission, “EEOC Releases Preliminary FY 2018 Sexual Harassment Data,” Press Releases, October 4, 2018, https://www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm.

3. According to IWPR, between 2005 and 2015, “women made eight in ten sexual harassment charges to the EEOC,” whereas “20 percent were made by men.”

4. The IWPR also found that only 6 to 13% of individuals who experience harassment file a formal complaint, even though they are protected from retaliation. There are a number of reasons why: “disbelief of their claim; inaction on their claim; receipt of blame for causing the offending actions; social retaliation (including humiliation and ostracism); and professional retaliation, such as damage to their career and reputation.” Not surprisingly, “71 percent of charges in FY 2017 included a charge of retaliation.”

6. Including: Meritor Savings Bank v. Vinson, Harris v. Forklift Systems, Inc., Burlington Industries, Inc.  v. Ellerth, Faragher v. City of Boca Raton, and Vance v. Ball State University.

10. Id, 1.

It wasn’t too long ago that the courts first began to recognize sexual harassment. In 1986, with Meritor Savings Bank v. Vinson, the Supreme Court first ruled that sexual harassment is an unlawful form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Three decades later, 2017 saw the arrival of the #MeToo movement and unprecedented public outcry against sexual harassment not only in Hollywood, but across employment industries. Following the Harvey Weinstein abuse allegations, the U.S. Equal Employment Opportunity Commission (EEOC) saw more than a 12 percent increase in sexual harassment charges in fiscal year 2018.[1] In 2019, the fight against sexual harassment in the workplace is ongoing. The question is, how must sexual harassment law adapt alongside the #MeToo movement? And could changes in sexual harassment law lead to a successful reduction of sexual harassment in the workplace?

 

Although the answers to these questions are complex and multi-faceted, I believe we must shift the lens through which we are viewing sexual harassment law. If we want to see a reduction of sexual harassment, and if we want to prevent incidents of sexual harassment from happening in the first place, we must consider the hierarchies of power lingering behind the scenes.

 

The workplace is hierarchical in nature. Because of this, sexual harassment in the workplace likewise tends to follow a hierarchical formula. More often than not, the perpetrator is part of the dominant group, the victim part of the subordinate. The former is often a supervisor, the latter an employee. Often, though not always, there are more men than women occupying positions of power in the workplace. Although there are male victims of sexual harassment as well as same-sex harassment incidents, [2] women tend to experience far more sexual harassment than men.[3] Women who occupy lower positions of power in male-dominated workplaces are especially at risk.  

 

Sexual harassment law is designed to settle disputes between individuals – the victim and their alleged perpetrator – and to find if there is any merit to allegations. Yet, incidents of harassment do not exist in isolation nor do they arise out of a vacuum. Those incidents that are reported are just the tip of the iceberg.[4]

 

Professor Tristin K. Green stresses the importance of not only considering the perpetrator and the victim in cases of sexual harassment, but also the complicit agents who may be hidden in the background. That is, “other harasses, silent bystanders, and the organizational leaders who make and maintain the systems, structures, and cultures that assign power, define merit, and generally determine how workers will be treated on the job.”[5] Examining several well-known sexual harassment cases,[6] Green notes that most plaintiffs indicated other female co-workers who shared their experiences of harassment, suggesting they were not the only women to experience a hostile work environment. Moreover, the perpetrators were not the only ones causing a hostile environment, but rather, there were other supervisors and employees who were either actively or silently complicit in creating such a work environment.

 

While sexual harassment law must centralize around an individual, how might the law take into account the wider systems of power perpetuating these incidents of sexual harassment? One place to start is with a reconsideration of the “reasonable person standard.” In their current guidelines on harassment, the EEOC outlines that harassment becomes unlawful when “the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” [7]

 

In 1991, Ninth Circuit ruled in Ellison v. Brady that the “reasonable person” standard tended to “ignore the experiences of women.” Instead, they pushed for a “reasonable woman” standard. Shortly after, some scholars began to argue that the “reasonable woman” standard assumes that sexual harassment cannot be objectively assessed and that men will not see sexual harassment as discrimination unless they adopt a woman’s perspective. Although the law has shifted back to using the “reasonable person” standard, problems of interpretation still remain.   

 

As with the “reasonable woman” standard, it is not entirely clear who we are talking about when we call to mind the “reasonable person.” Not all experiences of sexual harassment are the same. Depending on their race, class, gender, age, and sexual orientation, victims will hold different experiences of personhood. In 2015, the EEOC’s Select Task Force on the Study of Harassment in the Workplace found that a “significant amount of research on topics such as sexual harassment is based on the experiences of white women” and that “current research may underestimate the extent and nature of intersectional harassment.” Hence, if we want to address how the current system of power perpetuates sexual harassment, we must also address how intersectionality impacts our understanding of power hierarchies. For, depending on one’s place in the power hierarchy, one’s interpretation of what is “reasonable” may change.

 

In “What about #UsToo,” Professor Angela Onwuachi-Willig advocates for adopting a standard based on the complainant’s “intersectional and multidimensional shoes” rather than the “objective reasonable person standard.”[8] Onwuachi-Willig’s specific argument stems from the persistent racial biases of the #MeToo movement and the “longstanding marginalization and exclusion” of women of color within U.S. feminist movements. More generally, it is first by addressing how the intersectional identities of black women impact their experiences in the workplace that we can then see how intersectionality impacts the experiences of all in the workplace, albeit to different degrees.

 

When we adopt an intersectional approach, we come face to face with the systems of power behind each individual victim. Some scholars argue that it is problematic to stray from an objective reasonable person standard and give the example of the “reasonable black man” standard. The classic argument is that, in cases of race discrimination, a white person shouldn’t have to step into a black man’s shoes to perceive acts of racism as hostile and pervasive. Would a multidimensional approach to the reasonable person standard be pushing the law back into such murky territory?

 

Not necessarily. My interpretation of this multidimensional and intersectional approach to the “reasonable person” standard is that it is less about adopting the shoes of one particular person and more so about acknowledging the overarching power hierarchies behind individuals. It is keeping in mind that certain intersections between race, class, gender, age, and sexual orientation leave one in a certain spot within a hierarchy. Of course, every case is different. Facts, evidence, and context need to be taken into account from both the victim and perpetrator’s side. At the same time, if we want to see substantial change in reducing instances of sexual harassment in the workplace, the law must make room to recognize the collective structures of power built into the skeleton of our society. The law can no longer treat sexual harassment as isolated incidents involving isolated individuals.

 

In “Butterfly Politics,” Catharine MacKinnon describes sex inequality as both a complex and unstable system: complex “because of its simultaneous multiple interacting variables including race and class and sexuality and age” and unstable “because it is predicated on the lie of women’s natural inferiority to men and men’s natural superiority to women, termed difference in ideological and legal and common parlance.” [9] MacKinnon stresses that “the right small human intervention in an unstable political system can sooner or later have large complex reverberations.”[10] Butterfly politics, then, is a way of approaching systemic change through the actions of one seemingly delicate member of the ecosystem.[11]

 

To truly reduce sexual harassment, we must re-approach the law. By adopting a power-conscious and intersectional lens, we can reassess the language that composes sexual harassment law and the words that may be pre-determining the fate of victims before their legal fight even begins. Starting with the individual and the legal standards that represent that individual, we can then tackle the broader systems of power that perpetuate sexual harassment in the US today.

 

Not only must we look to the butterfly, but to the power of the entire ecosystem behind it.

REFERENCES

 

[1] U.S. Equal Employment Opportunity Commission, “EEOC Releases Preliminary FY 2018 Sexual Harassment Data,” Press Releases, October 4, 2018, https://www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm.

[2] Elyse Shaw et al. “Sexual Harassment and Assault at Work: Understanding the Costs,” Institute for Women’s Policy Research. October 2018. https://iwpr.org/wp-content/uploads/2018/10/IWPR-sexual-harassment-brief_FINAL.pdf.

[3] According to IWPR, between 2005 and 2015, “women made eight in ten sexual harassment charges to the EEOC,” whereas “20 percent were made by men.”

[4] The IWPR also found that only 6 to 13% of individuals who experience harassment file a formal complaint, even though they are protected from retaliation. There are a number of reasons why: “disbelief of their claim; inaction on their claim; receipt of blame for causing the offending actions; social retaliation (including humiliation and ostracism); and professional retaliation, such as damage to their career and reputation.” Not surprisingly, “71 percent of charges in FY 2017 included a charge of retaliation.”

[5] Tristin Green. "Was Sexual Harassment Law a Mistake? The Stories We Tell." Yale Law Journal Forum 128 (2018): 152-168, https://heinonline-org.ezp prod1.hul.harvard.edu/HOL/Page?handle=hein.journals

/yljfor128&id=152&collection=journals&index=journals/yljfor

[6] Including: Meritor Savings Bank v. Vinson, Harris v. Forklift Systems, Inc., Burlington Industries, Inc.  v. Ellerth, Faragher v. City of Boca Raton, and Vance v. Ball State University.

[7] U.S. Equal Employment Opportunity Commission, “Harassment,” Laws, Regulations & Guidance, https://www.eeoc.gov/laws/types/harassment.cfm.

[8] Angela Onwuachi-Willig, “What About #UsToo?: The Invisibility of Race in the #MeToo Movement,” Yale Law Journal Forum 128, (2018): 105-120, https://www .yalelawjournal.org/forum/what-about-ustoo.

[9] Catharine MacKinnon. Butterfly Politics. (Cambridge, Massachusetts: Belknap Press of Harvard University Press, 2017), 3.

[10] Id, 1.

[11] Id. MacKinnon adopts the title of her book from Konrad Lorenz’s theory of “the butterfly effect,” originating in a 1972 talk he gave titled: “Does the flap of a butterfly’s wings in Brazil set off a tornado in Texas?”

2. Elyse Shaw et al. “Sexual Harassment and Assault at Work: Understanding the Costs,” Institute for Women’s Policy Research. October 2018. https://iwpr.org/wp-content/uploads/2018/10/IWPR-sexual-harassment-brief_FINAL.pdf.

5. Tristin Green. "Was Sexual Harassment Law a Mistake? The Stories We Tell." Yale Law Journal Forum 128 (2018): 152-168, https://heinonline-org.ezp prod1.hul.harvard.edu/HOL/Page?handle=hein.journals

/yljfor128&id=152&collection=journals&index=journals/yljfor

7. U.S. Equal Employment Opportunity Commission, “Harassment,” Laws, Regulations & Guidance, https://www.eeoc.gov/laws/types/harassment.cfm.

8. Angela Onwuachi-Willig, “What About #UsToo?: The Invisibility of Race in the #MeToo Movement,” Yale Law Journal Forum 128, (2018): 105-120, https://www .yalelawjournal.org/forum/what-about-ustoo.

9. Catharine MacKinnon. Butterfly Politics. (Cambridge, Massachusetts: Belknap Press of Harvard University Press, 2017), 3.

11. Id. MacKinnon adopts the title of her book from Konrad Lorenz’s theory of “the butterfly effect,” originating in a 1972 talk he gave titled: “Does the flap of a butterfly’s wings in Brazil set off a tornado in Texas?”