Critique of the Day: What is Sexual Harassment? by Abigail Saguy

Citation: Saguy, Abigail C. What is Sexual Harassment? From Capitol Hill to the Sorbonne, University of California Press (2003).

Description

This book is a comparative empirical study of sexual harassment law in the United States and France. Using mixed methods of 1) in-depth interviews with prominent feminist activists and sexual harassment scholars and managers of American and French companies, 2) a content analysis of legal texts and popular mainstream media articles about sexual harassment that was then coded into variables that were empirically assessed, and 3) short interviews of French and American managers and lawyers to assess how they would respond to eleven different sexual harassment scenarios, Saguy paints a relatively full and compelling portrait of the similarities and differences in sexual harassment law between the United States and France.
To her credit, she resists and even decries ascribing such difference to purely stereotypical conceptions of cultural difference, although this is often the difference highlighted by the mainstream media and common narrative: people in the U.S. are too “puritan” and “policing” of all aspects of personal life, particularly sexuality, while people in France are too permissive of sexualized behavior in non-intimate relationships and settings such as the workplace due to the typical French romantic way. It is interesting then, that “culture,” as much as it can be empirically assessed and defined in terms of attitudes to concrete hypotheticals of sexual harassment and real life cases, should figure prominently in her multivalent explanation of the difference in sexual harassment law.

The differences between U.S. and French sexual harassment law are many and stem from the even more complex differences in political structure, legal system, and sociological culture.

United States

Common Law System: legal rules are developed through the adversarial system of litigation and rules-definition by the courts. This includes interpretations of the limits and reaches of statutory law such as Title VII. This permits, albeit in a slow, evolving way, novel changes in the law from the ground up, particularly by feminist lawyers. For example, through litigation, the courts determined that sexual harassment was a subset of discrimination on the basis of sex, a protected category under Title VII of the 1964 Civil Rights Act, later amended by Congress to include punitive in addition to compensatory damages in the 1991 Amendment.

France:

Civil Law System: Laws are introduced in Parliament and voted upon by that body; thus only what is politically feasible that term is voted upon. In France, the traditional concerns of Parliament focus not on group based discrimination along the axis of gender or race, but rather the axis of class, which is why French sexual harassment law is rooted in labor law and criminal law, originating from French legal traditions of just-cause termination of employment and the quid pro quo model of sexually harassing in order to obtain through force against the person’s will, sexual conduct.


U.S. Discrimination Framework and Remedies: This strategy was not without controversy (as it ignores sex harassment in contexts other than the workplace), but it definitely posits sexual harassment as group-based discrimination for which the employer is vicariously liable if committed by its agents and employees. U.S. sexual harassment law classifies this as something to be regulated by the EEOC under statutory law with legal (compensatory damages) and equitable (injunctions, reinstatement) remedies with some punitive damages after 1991.

French Criminal Framework and Remedies: This model of use of authority to obtain through coercion sexual conduct is a model of interpersonal violence, and thus based in criminal law. This is the most significant difference between the U.S. and France, as criminal law puts this as a conflict between the “victim” and the “perpetrator,” and there is thus no vicarious liability for the employer, as it is not “discrimination” but rather “interpersonal violence.” The remedies are fines and imprisonment for the perpetrator, but no employment/civil remedies for the victim.

U.S.: Taking Sexual Harassment Seriously, How Institutions Interact: HR managers take any instance of sexual harassment very seriously, due in part to the media’s inflammatory hype about sexual harassment verdicts and political scandals (Hill-Thomas, Jones-Clinton) and fear of litigation. This is as much a “bulletproofing the workplace” narrative as it is a “it doesn’t belong in the workplace anyway” professional narrative. Americans appear to view and approach social relationships at work differently than do the French, divorcing private life from public life so completely as to stamp out and police all private interactions in the workplace.

Sexual harassment is regarded as a major social ill, and emblematic of gender discrimination. Indeed, it may be more salient, at least in the press, than other types of gender discrimination such as wage inequality or disparity in promotion. Sexual harassment is gender discrimination because the person is evaluated on the basis of sex rather than objective qualifications. This political and cultural conception of sexual harassment is then more stringently policed in the workplace, where the narrative of “it’s just not professional” or “it has nothing to do with work” takes over and makes this anti-discrimination value an corporate organizational value of efficiency and productivity.

French Comparative Nonchalance about Sexual Harassment: How Culture Is Enacted: While the French take the concept of “moral harassment” or what I gather to be “bullying” seriously, “sexual harassment” is stigmatized and diminished as a social ill. Most appallingly, some of the discourse surrounding sexual harassment is that a person who feels uncomfortable with sexual attention is in need of a good ____. The French distinction between public and private spheres is one of non-regulation, not that private relationships do not belong in the workplace, but that they should not be regulated.

The French legal and political system seems less concerned with gender discrimination in general, and suspicious of American-style Puritanism w/r/t sex as amplified by damages-seeking litigation tactics. In fact, the French think that seeking money damages dilutes a plaintiff’s claim.

Thus, French culture is more permissive of private sexual interactions in public spheres, and this is instantiated in the lax regulation of the workplace, and further reflected in the political and legal refusal to see the problem as one affecting a segment of society that should be remedied with broad legislation. It is definitely not an organizational value, either, and because employers are not vicariously liable, they do not have incentive to police the actions of their employees.

Evaluation

I thought that this book was interesting, if repetitive. What was most interesting was the recursion inherent in her argument: cultural norms, social structure, political structure, legal systems, traditions all combine in complex, multivalent ways to produce the very different models of sexual harassment law in the United States and France. This recursion was demonstrated best when she took a passage out of an interview and highlighted all the ways even a short response signified political, organizational, and cultural values.

However, I thought the book was kind of repetitive. She belabored the same recursive point, which is inherently repetitive, to death using her three methods. Also, while she mentions Catherine MacKinnon a lot, why not name Vicki Schultz’s important work in re-theorizing sexual harassment, or Lauren Edelman’s and Susan Bisom Rapp’s work on grievance procedures as symbolic myths for bulletproofing the workplace? It’s in the footnotes, but these would have watered down her argument somewhat that Americans are very strict about sexual harassment. Also, what about the legal consciousness value of sexual harassment law? Her argument that the French coverage of American sexual harassment cases served to reinforce symbolic differences and boundaries (mostly in the superior sense) to the U.S., but I wonder if there was any positive consciousness raising due to such coverage. Why didn’t she interview French workers in addition to management?

The most interesting parts of the book were the interviews and how she framed the difference between France and the U.S., but I would have liked to see a better explanation of how the different political structures and legal systems led to different laws. Her explanation falls short a bit, mainly because political expediency is not absent as a justificatory function in U.S. law (indeed, she didn’t even explain that “sex discrimination” was added last minute as a way to defeat Title VII, and nor is it the only reason to explain French law. This book is a sociology book, not a political science book. Which is fine, but when Saguy tries to explain how political institutions, laws, and legal systems interact to produce different laws, her best explanations are sociological rather than legal or political.