In America, the middle of the twentieth century was marked by widespread protests against racial and sexual inequality. Slavery was over, as was the male-only vote. But discrimination persisted, ensuring that white men continued to dominate the public sphere—in politics, schools, workplaces, and elsewhere. Black people could not eat at a lunch counter or buy a house on equal footing. Women were not allowed to take out a credit card without their husband’s permission or, in many states, serve on a jury.
Advocates called for the federal government to pass civil rights laws that would forbid such unequal treatment. Despite much resistance from white men (including many elected officials) eager to hold on to their power, in the 1960s and ’70s Congress passed a series of important antidiscrimination statutes. Among these were the Civil Rights Act of 1964 and the Education Amendments of 1972. Together, these statutes officially prohibited sex and race discrimination in many workplaces and schools. It fell to the courts, though, to interpret these laws, defining exactly which forms of unfair treatment they do and do not cover. It took until 1986—not so long ago, really—for the Supreme Court to consider whether the scope of the civil rights laws encompasses sexual harassment.
Mechelle Vinson started work as a teller at a bank in 1974, when she was not yet twenty years old. She was hired by Sidney Taylor, a former janitor at the bank who had risen through the ranks to become manager. At first, Taylor acted “fatherly,” providing Vinson advice and generous bonuses. The two sometimes ate dinner together at a local Chinese restaurant. It was there, Vinson testified, that Taylor first propositioned her. In a dodge familiar to many workers, Vinson deflected her boss’s come-on, demurring while insisting she was grateful for all his help. “I don’t want appreciation,” Taylor reportedly replied. “I want to go to bed with you.… Just like I hired you, I’ll fire you, and just like I made you, I’ll break you, and if you don’t do what I say then I’ll have you killed.” The threat worked. That night, in a motel room connected to the restaurant, Vinson, crying, lay “stiff like a board, almost like I was dead,” as the man she depended on for her livelihood “did what he wanted to do.”
The abuse intensified. When Vinson balked on later occasions, Taylor used more force to rape her, at least once injuring her to the point that she required medical care. Vinson’s appetite disappeared, her hair began falling out, and she could not sleep—but she saw no way out. She needed the job. Besides, even if she could have afforded to leave, Taylor continued to threaten to kill her if she did not obey his orders. She had no reason to believe he would not follow through.
Given that very real fear, it’s all the more remarkable that, after connecting by chance with a sympathetic lawyer, Vinson sued the bank. Through Taylor’s harassment, she said, her employer had violated civil rights law. Shortly after she filed the lawsuit, she was fired; the bank insisted she had misused her sick leave.
Despite the severity of the abuse, it was not obvious Vinson would win her case. At the time, courts were still grappling with a then novel theory identifying sexual harassment as a form of discrimination. Even if a court believed every word Vinson said, it might still determine that nothing the bank had done was against the law.
ONE OF VINSON’S attorneys was Catharine MacKinnon, a pioneer in trying to convince scholars and courts that sexual harassment was a form of illegal discrimination. Shortly after graduating from Smith College in 1969, MacKinnon had enrolled in Yale’s graduate program in political science, and then also in its law school. New Haven, a working-class industrial city that plays host to a liberal university, was fertile ground for the feminist projects of the 1960s and ’70s. Consciousness-raising groups, which gave women of all backgrounds a chance to discuss how private indignities connected to larger inequalities, were a key element of the women’s movement. In one of those groups, MacKinnon heard stories from female secretaries about abuses they suffered at the hands of their male employers, a long-accepted practice that had only just started to become known as “sexual harassment.”
Those accounts, among others, inspired what eventually became MacKinnon’s first book, published just two years after her graduation from Yale Law. Sexual Harassment of Working Women introduced lawyers and legal academics to a new vision of workplace abuses as a civil rights violation. Sexual harassment, MacKinnon proposed, came in two often overlapping forms: quid pro quo harassment, where workers were offered professional advancement (or safety from professional retaliation) for sexual favors; and “hostile environment” harassment, where sexually demeaning behavior, comments, and attitudes pervade the workplace.
The theoretical heavy lifting of MacKinnon’s book builds on a couple of key premises. First, she stressed the importance of power and social context for understanding harassment. A judge or juror might be tempted to view abuse like Taylor’s as an inherently private matter, a dispute between a young woman and her disappointed suitor in which courts should not intervene. But sexual harassment occurs in a world dominated by men, in spaces and situations where men so often have outsize influence and power, especially over subordinates.
Second, and relatedly, MacKinnon argued that victims were targeted for sexual harassment “on the basis of sex.” This was critical as a legal matter, because Title VII of the Civil Rights Act of 1964 only made it unlawful for an employer to discriminate against an employee “because of such individual’s race, color, religion, sex, or national origin.” Other civil rights laws also focused only on such special aspects of a person’s identity. Discrimination based on something else—a person’s musical tastes, for example—just isn’t the concern of civil rights legislation, no matter how abusive or distasteful it may be.
It might seem obvious from statistics about sexual harassment (as described in the previous chapter) that it has a disproportionate impact on girls and women. But as a technical legal matter, that wasn’t enough. MacKinnon needed to show that when a woman was harassed, she was harassed because she was a woman. To do so, MacKinnon argued that sexual harassment expresses and reinforces social meanings of what it means to be a woman or a man. In other words, when Taylor harassed Vinson, he did so because he understood women to be first and foremost sexual objects, not workers. And in making her employment contingent on sex, he solidified those social meanings, “perpetuat[ing] the interlocked structure by which women have been kept sexually in thrall to men and at the bottom of the labor market.”
In the decades since the publication of Sexual Harassment of Working Women, other feminist theorists have built on MacKinnon’s work, offering various additional theories that explain why sexual harassment is a form of sex discrimination. In my view, the diversity of these academic opinions underscores just how many forms discrimination can take. Some scholars make the commonsense observation that gender is often a key element in sexual desire—that is, when an abusive boss desires women, he will not attempt to sleep with his secretary unless she is a woman. Other theorists elaborate on MacKinnon’s central observation that sexual harassment serves to reinforce a gendered hierarchy. They emphasize the connection between sexual harassment and sex-based stereotypes of all kinds—a helpful framework for understanding harassment against people of all genders. After all, everyone, not just women, faces sexist stereotypes about how they “should” act.
As law professor Katherine Franke puts it, “sexual harassment is a technology of sexism.” It is both an example of sex discrimination and a tool to further entrench gender-based roles. And that tool can work in different ways to put victims “in their place.” The “sex” in sexual harassment might be clearest in a case like Vinson’s, where a male boss saw his female employee not as a full human or valuable colleague but as a means of gratification. The resulting abuse served to push Vinson out of the workplace and into women’s traditional sphere, the home. Not all sexual harassment, though, centers on sexual desire. For example, some women, especially those in male-dominated fields, are subjected to sexually explicit comments not as expressions of lust but as a means of showing them that they do not belong in the workplace, a man’s domain.
Take the experience of Barbara Steiner, the first female floor manager at a Las Vegas casino. The industry was characterized by a strict gendered hierarchy, with men comfortably at the top. Female employees were seen first and foremost as objects of desire, and required to dress the part. Even though Steiner had been promoted into a traditionally masculine position, her male manager called her gendered epithets and yelled that she was “not a fucking floor man”—even though being a “floor person” was, quite literally, her job. “You are a fucking casino host,” he told her. “Why don’t you go in the restaurant and suck their dicks?” As Franke explains, “What made it sex discrimination, was … that he used sexual harassment to put Steiner in her ‘proper place,’ thereby diminishing her authority and role as a floor person. In this sense, the sexual harassment feminized Steiner, rendering her less competent and more sexual, while at the same time it masculinized the male supervisor as someone who possessed both the will and the power to render his female subordinate a sex object.” To borrow from the philosopher Kate Manne, this kind of misogynistic harassment “primarily targets women because they are women in a man’s world.”
And it’s not only women who suffer. People of all genders may be sexually harassed because they do not conform to gendered expectations. Non-binary people may be harassed because their very existence challenges the whole framework: they fit in neither box. Men may be sexually harassed by colleagues who think they are insufficiently masculine. In one case in Illinois, a man who worked at a paper plant was targeted because he lived at home with his mother and blushed easily when the other men talked about sex. As Franke puts it, “By asserting their proper masculinity through … sexual harassment, [the victim’s] male coworkers humiliated him because he held a man’s job without acting manly.”
VINSON LOST HER case at the trial level, and appealed it all the way up to the Supreme Court. In the meantime, some lower courts considering other suits ruled that sexual harassment was sex discrimination. Other judges, as the attorney Gillian Thomas puts it in her book Because of Sex, had “responded to complaints about abusive bosses with a collective shrug that conveyed, ‘You can’t blame a guy for trying.’”
Confusion reigned until the Supreme Court stepped in and decided Vinson’s case. In an important victory, the court unambiguously acknowledged sexual harassment as a form of sex discrimination, a civil rights violation. Its opinion recognized that abuses like the ones Vinson survived are not only crimes but also threats to equality and dignity. As a result, the court made clear, employers are required to do their part in stopping harassment and addressing its impact on the victim after it occurs. Six years later, in a different case, the Supreme Court extended its reasoning to the context of schools: it held that Title IX, which prohibits sex discrimination in educational programs that receive federal funding, requires schools to respond to sexual harassment as part of their general legal responsibility to ensure gender equality.
In ruling for Vinson, the Supreme Court relied in part on the better-established principle that racial harassment constituted race-based discrimination for purposes of Title VII and similar laws. That analogy reflected the insights of civil rights pioneer Pauli Murray, who had first argued that sex discrimination suits could be modeled on race discrimination claims. MacKinnon had noted this parallel in Sexual Harassment of Working Women and then again as a part of Vinson’s legal team, and feminist groups drew the same analogy in “friend of the court” briefs filed in support of Vinson. It’s meaningful that a Black woman, Vinson, was the plaintiff whose case established that antidiscrimination law prohibits sexual harassment: the fight for gender justice has been inextricably tied to the fight for racial justice, and Black women have led the way.
With all that said, the Supreme Court’s opinion in Vinson’s case was far from perfect. It stated that a complainant’s “sexually provocative speech or dress” were “obviously relevant” to whether “he or she found particular sexual advances unwelcome”—an invitation for courts to blame victims for their treatment. The court also rejected Vinson’s argument that the bank was automatically liable for Taylor’s misconduct because he was the bank’s employee and manager. Instead, Vinson had to prove that the bank had failed to intervene to stop the abuse. As a result, today the general rule is that an employer is only liable for harassment about which it actually knew or should have known, and which it fails to address—a requirement that frequently allows employers who operate hostile work environments to avoid liability. The court’s test for Title IX claims is even less friendly to victims. A student can only win their suit if the school had “actual knowledge” of the abuse and was “deliberately indifferent,” which excuses school responses that are poor but not “clearly unreasonable.” Obviously, the Supreme Court hasn’t ended sexual harassment—both because it has invented ungenerous standards and because, ultimately, there is only so much that law can do. As an attorney, I am under no illusion that courts alone will save us.
Still, Vinson’s win and its Title IX sequel were major victories, especially given the alternatives for survivors. Without the Supreme Court’s rulings, many victims would have no legal recourse at all. This is partly because a lot of sexual harassment—especially verbal abuse—does not violate any criminal law. A boss who subtly conditions an employee’s promotion on a date is likely not committing a crime. Neither is the student who sits behind a classmate’s desk every day and makes explicit, sexualized comments about his body. But even where sexual harm is a criminal offense, most violations never lead to prosecution. Of sexual assaults that are reported to the police, only about 20 percent lead to an arrest and around 4 percent are referred to prosecutors. Those rates do not reflect how many victims want their case to move forward. Rather, the issue is that survivors don’t get to decide what comes of their police reports.
As I noted before, a criminal case is brought by the government, not the victim. In other words, it is a contest between the state and the defendant. The victim is, at most, an important witness, not a party to the case. She does not get to determine whether and how the case proceeds, and she typically doesn’t receive any kind of personal remedy if the defendant is convicted: he goes to jail, while she attempts to struggle on with her life. The intent of prosecution is to vindicate the state’s interests, not to assure the survivor’s well-being. Under American legal theory, the four purposes of a criminal prosecution are supposed to be retribution (making sure the wrongdoer gets what he deserves), rehabilitation (helping the convicted become a law-abiding member of society), deterrence (discouraging the defendant and others from violating the law in the future), and incapacitation (separating the defendant from society so he can’t offend again for some time). The welfare of the victim simply is not in that mix.
In contrast, a civil rights case is usually brought by the victim. She gets to decide whether to initiate the lawsuit and, with her attorney, makes strategic calls about how to proceed. Brought against an institution, such a suit also offers remedies that the criminal prosecution of individual wrongdoers cannot. Not every victim wants her assailant to go to prison, and even those who do may also have other needs and goals that punishment alone can’t serve. If a survivor wins a civil rights suit, the court may order the institution to take specific actions—for instance, reinstating an employee who lost her job when she spoke up about her boss’s harassment. The court can also order the institution to make bigger, systemic improvements that will help others avoid harassment, such as changes to company policies. And that is to say nothing about the significant financial awards that a judge or jury may order the defending institution to pay a victim. Those damages can go toward therapy or other medical expenses, allow her to pay off debts incurred after leaving work or school, and help her get back to her life. (While monetary support is sometimes available through the criminal justice system, it’s usually only as compensation for a set of specific expenses victims may incur as a result of the crime.)
Theoretically, before Vinson’s case established sexual harassment as a civil rights violation, victims could have brought a different kind of civil suit: a “tort” claim for money damages, either against an institution or against the individual assailant. A tort is what many people think of when they picture a classic civil proceeding—the lawsuit that follows after person A injures person B with their car, or with medical malpractice, or with a public lie. Because torts are civil, not criminal, claims, a victim gets to stay in charge of the case. But there are a number of reasons a survivor might prefer to file a civil rights suit instead of a tort claim. Chief among these is that tort laws, like criminal laws, are very focused on the assault itself, but don’t have much to say about what institutions have to do to remedy that harm after it occurs. If Darbi’s school had caused her assault, for example, it might have been on the hook under tort law. But because Darbi challenged the school’s failure to protect her education after the rape, she needed a civil rights statute. Plus, in some states, public institutions like schools are immune from tort suits altogether.
Instead of suing an institution, a victim could always try to bring a tort claim against an individual perpetrator. (By contrast, civil rights claims under Title IX and Title VII only permit suits against the school or workplace.) But tort suits only cover a narrow set of physical harms, and rarely result in remedies beyond money damages. Even financial awards might prove elusive, since individual defendants, unlike institutions, often simply can’t afford to pay out a significant sum. A jury’s verdict ordering the defendant to pay the victim, then, could be a symbolic victory only. For that reason, it can be hard for a survivor to find a lawyer for a tort suit against her harasser if he doesn’t happen to be rich. Civil rights suits, in contrast, go after institutions that often have deep pockets or insurance. And civil rights laws include special provisions to provide financial compensation for attorneys to encourage them to take on these important cases.
VINSON’S HARASSMENT KEPT her from being able to do her job. It threatened her and her economic livelihood. It deprived her of the opportunity to show up at work on the same footing as everyone else. In fighting back, she proved that sexual harassment is a civil rights issue, a profound injustice for individual victims and for society.
For me, learning to think about responses to sexual harms outside the criminal system isn’t just about the mechanics of law. It’s a philosophical shift. Earlier, I observed how rarely we hear about survivors’ lives after harassment. Instead, we focus on the assailant and his punishment alone. We fail to center survivors in their own stories, in the action of their own lives. As I see it, this is a criminal law mindset: the victim falls out of the picture, just like in a criminal prosecution. Thinking about sexual harassment as not just a crime but also a civil rights issue expands our view. Social justice movements fought for civil rights legislation to root out inequality, both to help wronged individuals rebuild their lives and to end systemic injustice. So when we approach sexual harassment as a matter of civil rights, we see violence in its full context—the circumstances that give rise to it, the material impact it has on survivors, and the effects that ripple out afterward. We are guided not by the state’s simplistic thirst for punishment, but by what victims need to ameliorate the harm and build a more just world.
I think we should bring the civil rights lens to every question about harassment, whether it be how to design a smart policy or how to best support a friend. As I see it, our communities and institutions can choose to embrace the values that motivate civil rights legislation, or they can adopt criminal law’s narrow, punitive approach. Consider Darbi’s story. All of us should want H. to understand that what he did was wrong and, yes, to be held accountable. But if all we did was punish him, we would lose the chance to provide Darbi with what she needed to learn and thrive in the wake of the assault. We would also lose an opening to teach students to treat each other with respect—a lesson that would serve H. and his friends well as they become adults. And we would squander the chance to make sure Pennridge students never face obstacles to learning because of their gender, so that all of them can go into the world with the same education, opportunities, confidence, and recognized dignity.