Notre Dame Law Review Online
What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural and substantive burdens on those accused of sexual harassment or assault, and in closer governmental monitoring of institutional settings, such as public universities.
Feminist Judgments takes us to a key moment in the history of sexual harassment law. In Meritor Savings Bank v. Vinson, the Supreme Court recognized for the first time that both quid pro quo and hostile environment sexual harassment violate Title VII of the Civil Rights Act of 1964. It also held that to be actionable under Title VII, sexual advances must be (1) “unwelcome” and (2) “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” The latter part of the test (“sufficiently severe or pervasive”) fits well into the liberal-feminist judicial attitudes in the 1970s and 1980s that emphasized gender equality and the integration of women in the workplace. The problem with sexual harassment under this Ginsburgian liberal framework is that it impairs the equal participation of women in the workplace. The first part of the Meritor test (unwelcomeness), however, has been subject to intense debates among feminists. What does it mean for a sexual advance to be unwelcome? Is the test objective or subjective? Does welcomeness have to be conveyed affirmatively? Can passive silence indicate welcomeness? Does provocative dress matter? The answers to these questions often depend on the branch of feminist thought that appeals to you. For instance, according to antisubordination feminism, the primary harm of sexual harassment is sexual subordination: men use sexuality as a primary means to subordinate women to male power. By contrast, for liberal feminism, the focus is not so much on sexual subordination as it is on unequal opportunity in the workplace.