Precis of the Day: Vicki Schultz, The Sanitized Workplace
Looking through my folders, I figure--why not post some abstracts or precises, if others may find them useful?
I'll try to keep doing it for the sake of an online repository of quick lit reviews.
Vicki Schultz, The Sanitized Workplace, 112 Yale L.J. 2061.
One of American society's most cherished beliefs is that the workplace is, or should be, asexual. This ethic is a legacy of our historic commitment to a conception of organizational rationality that treats sexuality as irrational and unproductive - a conception that had come under challenge until sexual harassment law gave it a new lease on life. Using a historical and sociological analysis, Professor Schultz shows that the law's focus on eliminating unwanted sexual conduct has provided added incentive and increased legitimacy for a managerial project of suppressing sexuality in the workplace. In the name of preventing sexual harassment, many employers are prohibiting potentially benign forms of sexual conduct, without attending to the larger structures of sex segregation and inequality in which genuine sex harassment flourishes. Employers have begun to impose strict disciplinary measures, costing many people their jobs or reputations and threatening employees' ability to form their own work cultures. Employers also increasingly ban or discourage employee romance, chilling intimacy and solidarity among workers of both a sexual and nonsexual variety. Evidence also suggests that employers sometimes use sexual harassment charges as a pretext for punishing employees for discriminatory or other suspect reasons, and employees are quicker to accuse coworkers of a different race, sexual orientation, or class whose sexuality threatens or offends them. Worst of all, employers are punishing sexual conduct without examining whether it is linked to sex discrimination in purpose or effect. Contrary to the prevailing orthodoxy, Professor Schultz argues, workplace sexuality is not always discriminatory or disruptive: Sexual conduct takes its shape and meaning from the larger organizational context. Sociological research shows that women who work in well-integrated, egalitarian settings often participate and take pleasure in sexual interactions - probably because their numerical strength gives them the power to help shape sexual norms to their own liking. Thus, rather than encouraging employers to desexualize, we should encourage employers to desegregate. To create the incentive to do so, the law should make sex harassment easier to prove in significantly segregated and unequal work settings, and harder to prove in fully integrated and equal ones. At an even more basic level, legal actors and reformers must abandon the traditional definition of harassment as sexual conduct in favor of a broader focus on discriminatory conduct, because the emphasis on sexual conduct as harmful has given the law a "cultural tilt" that meshes well with the preexisting managerial view of sexuality and motivates managers to extend the law's reach within organizations. By the same token, the fact that managers can justify their actions with reference to a feminist-inspired body of law has facilitated their ability to implement zealous policies that extend the law. Thus, Professor Schultz's account of the development of sexual harassment law teaches that law makes a difference, but the difference it makes depends on how it interacts with larger institutional and cultural forces that will shape it in everyday life. Ultimately, she argues, those who seek to halt sanitization must offer a new vision in which sexuality can coexist with, and even enhance, gender equality and organizational rationality.
The excessive regulation of sexuality in the workplace under sexual harassment law has “sanitized” the workplace of natural, even beneficial articulations of human sexual behavior while obscuring other non-sexual forms of sex discrimination and structural gender inequality. That is, the obsession in both organizational environments and among feminist lawyers with sexuality-based employment discrimination may in fact be a retrenchment of the original goal of Title VII to combat sex-based job segregation, at least in effect. More over, such legal and organizational hyper-regulation leads to undesirable outcomes: rather than consider whether sexual behavior on the job in fact leads to sex-based discrimination, employers and lawyers tend to police human relationships, use sexual harassment law as a pretext for other forms of employment discrimination (age, sexual orientation), or simply shield themselves from liability rather than pursue the goal of gender integrated and equitable work. Although sexual harassment law is limited by such legal tests as “unwelcome, severe and pervasive” sufficient to create a hostile work environment (HWE), in real life much sex-based discrimination is of an non-sexual nature, or is the more pervasive problem of which sexuality-based behavior is but a symptom. Moreover, there are many examples of gender-integrated work environments in which human intimacy and sexual conduct and conversation are healthy and beneficial to both individuals and the environment in which they work.
Schultz’s conclusion is that “in a pluralistic society, we should neither encourage nor cede to management the unilateral power to censor sexual conduct. Instead, we should strive to create structurally egalitarian work settings in which employees can work with management to forge their own norms about sexual conduct.” Schultz then articulates a two-paradigm test, one set of more stringent liability rules for sexually offensive behavior that would attach to less gender-integrated environments, and one set of more lenient rules that would attach to better integrated, more structurally egalitarian workplaces.
Schultz sums up some current developments in sexual harassment law using some examples from the lower courts, and many anecdotal examples from employment lawyers and managers. This is probably the weakest part of her article, as she rfers to “available empirical research” but doesn’t use it to flesh out her argument about how companies excessively regulate sexual conduct. It’s kind of vague, this reference to how “many companies” have draconian sexual harassment policies—a table with some identifiable N would be better.
Her anecdotal evidence does support her thesis, although without more detailed case studies it’s hard to say whether the “healthy” sexual banter at Company X is demonstrable of the need to change the Title VII case law.
I found this article very interesting, but a bit troublesome. As one who self-identifies as a feminist and who writes in the area of employment discrimination law, I generally support changes in the case law and EEOC guidelines if the current legal standards and guidelines do little to effectuate the goal of gender-equity. However, with respect to sexual harassment law, I am generally in favor of “keeping sex out of the workplace,” despite being aware of libertarian and First Amendment arguments against such stringent policing of human behavior. I admit that the legal justification for such regulation—the “but for this person’s gender, this unwelcome behavior would not have happened” because-of-sex test is a bit shaky. I agree with Schultz’s findings even if I don’t totally agree with her proposed changes in the law. It is true that the workplace has been sanitized of sex, even healthy sexual behavior. But is her proposed cure any better, or even tenable? Does reintroducing sex into the workplace and creating a sliding scale of liability do much better to advance gender equity? I agree with Schultz that we should not focus obsessively on sexual harassment to the near exclusion of other non-sexuality based forms of gender discrimination or the ultimate goal of gender equity and integration. I am just not sure that reintroducing sex into the workplace is the way to go about it. I would not ignore the actual benefits of removing sex from the workplace, e.g. the establishment of the norm that supervisor-employee relationships should be considered seriously in light of the imbalance of power, and that it may be considered a serious offense to put up pornography if it makes your female coworkers uncomfortable or undermining their job authority.