SEXUAL HARASSMENT IN THE UNITED STATES: ANALYZING THE HOSTILE ENVIRONMENT, by Mary Atwell. New York: Peter Lang Publishing. 2020. pp.156.. Hardback $94.95. ISBN: 978-1-4331-5607-6.
Reviewed by Carolyn Jones, Department of Political Science, University at Albany. Email: ccjones@albany.edu.
The book, SEXUAL HARASSMENT IN THE UNITED STATES: ANALYZING THE HOSTILE ENVIRONMENT by Mary Atwell, provides a brief history of sexual harassment in law. It traces the development of sexual harassment in law and explains the legal and social problems that remain today. In the first few chapters, Atwell defines sexual harassment and explores the legal framework, specifically in the context of a hostile work environment. The book recounts and examines the landmark cases heard before the Supreme Court that defined sexual harassment and developed the legal framework under the Civil Rights Act as a form of gender discrimination in violation of Title VII. The following chapters identify relevant cases which close the gaps left by the original case on sexual harassment. The later chapters evaluate sexual harassment cases that have played out in the media and reviews specific cultures of harassment in academia government and the military. The book concludes with a commentary on the #MeToo Movement. This book seeks to bring attention to the serious challenges that remaini in addressing sexual harassment both in the legal and cultural framework, even in light progress made by the #MeToo Movement.
In Chapter 1 “The Patriarchy and Sexual Harassment”, Atwell gives a brief history of sexual harassment as a concept and defines key terms. She explains that sexual harassment is often as less about women being perceived as attractive or sexual, and more about the power structure that society has accepted as a means to disenfranchise women in the workplace (Atwell, 2020 p.10). As women slowly worked their way into the workforce, legislatures attempted to safeguard their “virtue,” a practice that suggests that laws were more concerned with morals than economic inequality. As time went on however, women started to question the abuse they faced in the workplace. For example, the 1970’s saw use of the phrase “sexual harassment.” Simply naming the action helped people recognize the problem. The rise of the feminist movement brought attention to legal protections and defined sexual harassment in law.
In Chapter 2, “The Supreme Court Discovers Sexual Harassment”, Atwell breaks down the critical case which defines sexual harassment in a hostile environment for the Court: MERITOR SAVINGS BANK V. VINSON, 477 U.S. 57 (1986).In this case, sexual harassment is argued to be sex-based discrimination and in violation of Title VII of the Civil Rights Act of 1964. While the Supreme Court ruled in favor of this argument, questions remained about employer liability, requirements for a hostile work environment and worker compensation. Before VINSON, women who had been previously harassed in the workplace were dismissed in court. The court either refused to hear their cases or ruled in favor of the accused, not the victim. Atwell believes VINSON failed to address larger questions, but that it marked a start.
In Chapter 3, “The Supreme Court Revisits Sexual Harassment”, Atwell explains the litigation following VINSON and further defines sexual harassment. Four cases are described: HARRIS V. FORKLIFT SYSTEMS, INC., 510 U.S. 17. (1993), ONCALE V. SUNDOWNER OFFSHORE SERVICES, INC., 523 U.S. 75. (1998), FARAGHER V. CITY OF BOCA RATON, 524 U.S. 775 (1998), and BURLINGTON INDUSTRIES, INC V. ELLERTH, 524 U.S. 742 (1998). HARRIS grapples with how serious a person must be affected in order to claim an abusive or hostile work environment. The Supreme Court ruled the “environment would reasonably be perceived, and is perceived, as hostile or abusive... there is no need for it also to be psychologically injurious” (HARRIS V. FORKLIFT SYSTEMS, INC.)This set precedent for the definition of a hostile work environment which could then be applied to future cases. ONCALE considered the question of same-sex harassment asJoseph Oncale was harassed by another male employee at work. The Supreme Court ruled that not all unequal treatment of men and women in the workplace qualifies as harassment. However, the Court stated that “when a workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” the bar for sexual harassment has been met (p. 45). Lastly, the cases FARAGHER V. CITY OF BOCA RATON and BURLINGTON INDUSTRIES, INC V. ELLERTH focused on employer liability under Title VII of the Civil Rights Act of 1965. In FARAGHER, Beth Ann Faragher sued the city of Boca Raton after she resigned from her job as a lifeguard. She claimed her supervisors had created a hostile environment which violated Title VII. The Court ruled in a 7-2 decision that an employer would be liable if the employee was fired or reassigned. However, in the case of the hostile work environment a two-pronged defense could be employed. Here “the employer would be required to demonstrate they had promulgated an anti-harassment policy [,] and that the employee showed an unreasonable failure to make use of the procedures available” (p.50). In BURLINGTON INDUSTRIES, INC V. ELLERTH, the question before the court was whether the employer could be liable even if the employee refused sexual advances and suffered no adverse job consequences. Again in a 7-2 ruling, the Supreme Court held that “an employer would be liable for an actionable hostile environment created by a supervisor … but if no tangible employment action was taken against the employee, the employer could raise the same two-pronged affirmative defense” (p.52). The four major cases that are highlighted are the last cases to be heard by the Supreme Court regarding gender discrimination under Title VII. These cases did not solve the problems of sexual harassment in the workplace, but they did clarify gaps left in the original ruling of MERITOR SAVINGS. BANK V. VINSON.
Chapter explores the story of Anita Hill, who accused Clarence Thomas, then a Supreme Court nominee, of unwanted sexual advances. Atwell draws a stark connection between the nominations of Thomas in 1991 and Brett Kavanaugh in 2019, noting society has made limited progress. Atwell explains that Hills hearings and accusations, which played out on national television, were not taken seriously by senators. Atwell describes the hearings and the strategies of Republicans who were eager to paint Thomas as a self-made man, rising from poverty to Yale Law School. Democrats questioned Thomas strongly on abortion but worried that questioning his qualifications would make them seem racist (p.61). Atwell explains that both groups dismissed Hill’s claims and could not understand why she had not reported him (p.65). Atwell argues this televised event brought attention to sexual harassment and a rise of a third wave of feminism that represented intersectionality. The story of Anita Hill also changed public opinion of sexual harassment. In 1992 people reported believing Hill 42% compared to 34% who say they believed Thomas (p.73). In terms of legislative progress, Congress passed the Civil Rights Act of 1991 which includes coverage for victims of discrimination including sexual harassment (p.73).
In Chapter 5, Atwell reviews schools’ and colleges’ attempts to deal with sexual harassment. Since Title VII only deals with workplace discrimination, this chapter evaluates the legal challenges of Title IX, which covers the education system, and reinforces the theme of sexual harassment as a form of power asserted over victims. Atwell describes CANNON V. UNIVERSITY OF CHICAGO., 441 U.S. 677 (1979), the first case under Title IX in 1979. The Court ruled “individuals could claim sex discrimination and sue schools and universities under Title IX” (p.83). The Court did not address if sexual harassment discrimination victims could claim damages until 1992 in FRANKLIN V. GWINNETT CNY. PUB. SCH., 503 U.S. 60 (1992).The Supreme Court agreed that victims could receive damages. In a later case, GEBSER V. LAGO VISTA INDEPENDENT SCH. DIST., 524 U.S. 274(1998),Alida Gebser sued the school district after Alida’s teacher, Frank Waldrop, had intercourse with her (p.84). The court specified that “the school is not liable for the sexual harassment of students by teachers unless officials knew about the behavior and remained deliberately indifferent” (p.83). Dissenters on the Court saw this ruling as “deviating from previous rulings'' and outrageous since Gebser was too young to consent (p.84). Atwell notes that some scholars believed this ruling did not incentivize schools to protect children from sexual harassment, but instead encouraged an “ignorance is bliss” policy. In the case of DAVIS V. MONROE COUNTY. BD. OF ED., 526 U.S. 629 (1999) , the question was raised as to if the school was liable for the actions of another student. Here, fifth grader LaShonda Davis was sexually harassed by another student. The Supreme Court ruled that “in return for federal funds, recipients must comply with Title IX.” Schools have more control over their students than employees (p.87). The chapter also addressed the challenges students face today. Atwell also notes that during the Obama administration, many policies were put in place to support victims of harassment. However, this was undone after Secretary of Education Betsy DeVos was appointed by President Trump.
Chapter 6 reviews sexual harassment in the legal and cultural context of the military. Early in this chapter, Atwell addresses the prevalence of harassment among female military members and recounts Tailhook, an event that captured the attention of the media. Atwell continues to explain the legal challenges that exist within bureaucratic settings, reviews the issues within military academies, and ends with a review of military culture today. Atwell uses the military as a means to provide another example of the pervasive culture of sexual harassment. As women began integrating into all aspects of the predominantly-male military, their presence was not always welcome. Men in the military have expressed resistance when conceding power to women, resulting in a culture of sexual harassment. While recent reporting has increased, problems with reporting and the culture surrounding assault still exists in the military. Since the military is not covered by Title VII, cases must be filed under the Military Equal Opportunity Program, which falls within the Department of Defense (p.111). These laws differ from those of civilian employees or students. sexual assault victims are not allowed to seek liability from the Department of Defense. Additionally, the military is the sole entity to prosecute assault claims and the definitions of work and home are often blurred in a military setting, making litigation increasingly difficult (p.112). Further, military academies do not fall under the protections of Title IX and report only to the Department of Defense, rather than the Department of Education. Atwell concludes that although the military has committed to zero tolerance policies for sexual harassment, the statistics show an inability for the culture to correspond with their policies.
Chapter 7, “Politics, Politicians and Sexual Harassment”, examines the harassment of women working in politics. Congress is an example of a male dominated field where women are a minority with unequal amounts of status and power, allowing a culture of harassment to prevail. Atwell starts with a story of former Congressman Robert Packwood, who was forced to resign from the Senate after multiple accusations of sexual harassment. Atwell recounts the story of President Bill Clinton, accused by a former staffer of inviting her to a hotel room and exposing himself. She sued him for damages and the litigation took place as he held presidential office. CLINTON V. JONES, 520 U.S. 681 (1997) ended up in the Supreme Court, despite Clinton’s attempt to delay the litigation as the Court ruled that there was no reason for postponement. Simultaneously, Washington lawyer Ken Starr was launching an investigation into all aspects of the Clintons' lives, which eventually led to President Clinton’s impeachment. Atwell points out that much of the country remained divided on the issues faced by President Clinton. Feminist icon Gloria Steinman “wrote off the case as borderline and noted that it did not happen in the workplace” (p.135). Others believed Clinton’s actions were a “violation of human rights'' (p.135). Atwell expressed how in light of #MeToo, these stances seem confusing, but that feminists were acting pragmatically. Feminists, notably Gloria Steinem, believed Clinton would advance and advocate for women’s rights regardless of his personal behavior. The discussion transfers to recent cases of allegations, such as those concerning Al Franken and Blake Farthenhold, both of whom reisgned as a result of allegations and investigations of harassment. While these examples do show some amount of accountability in Congress, Atwell questioned the Congressional culture around harassment, and concludes that while there have been some efforts to expand harassment policies in 2017 and 2018, efforts are less than perfect. They do, however, signal that “the culture that tolerated harassment is being challenged” (p.139).
Chapter 8, “Sexual Harassment, Then, Now and After #Metoo”, analyzes the rise of the #MeToo movement, which started as a way for African American women to express their experiences on social media in 2006. The movement quickly challenged “structural misogyny” and “acted as a catalyst to change the response to sexual harassment from tolerance to repulsion and shunning of harassers” (p.143). While #MeToo has drawn attention to large scale abuses of women, there are still many contexts where women continue to face harassment. Notably, women who have jobs at the “bottom of the economic ladder” fear the loss of a job and view harassment as a necessary evil that needs to be tolerated (p.145). Unfortunately, these problems will remain unchanged until the culture and the laws change. Debates about the impact of the movement continue to this day, but Atwell believes the #MeToo movement is an important first step in the hopes for real social change.
While this book clearly demonstrated sexual harassment is a structural problem in American culture, greater attention should have been paid to the history and waves of feminism. The book could have covered communities effected by sexual harassment in a much deeper fashion. Although Atwell mentions the LGBTQ community, immigrant workers, and minority groups, the prevalence of harassment within these communities demands deeper evaluation.
The chapter on politicians and government was also too narrow. Scandals among congressmen are important since they are national figures, but state and local governments have their own cultures of harassment which are of equal importance. After the #MeToo Movement, many state legislatures reformed their own reporting and investigation processes for sexual assault which could have been compared to federal policies. In terms of the book's order, I would have preferred that the chapters on Anita Hill and Congress followed each other. It seemed strange to separate chapters on similar themes and policies with the military. In addition, while I understand that only so many things can be covered in one book, the omission of these specific topics is important to note.
I would recommend this book as an overview of sexual harassment culture and the law. The book was broken down into digestible sections, each covering a variety of the most pressing issues related to sexual harassment culture. The language was not complicated, and the topics were laid out clearly. In terms of overall contributions to the study of sexual harassment, this book provides a brief overview and draws interesting parallels between the past and today. These parallels are critical to understanding the progress, or lack thereof, that have been made. Hopefully, this book will draw attention to the legal and cultural work which remains to be done in the United States.
CASES:
BURLINGTON INDUSTRIES, INC. V. ELLERTH, 524 U.S. 742 (1998).
CANNON V. UNIVERSITY OF CHICAGO., 441 U.S. 677 (1979).
CLINTON V. JONES, 520 U.S. 681 (1997).
DAVIS V. MONROE COUNTY. BD. OF ED.., 526 U.S. 629 (1999).
FARAGHER V. CITY OF BOCA RATON, 524 U.S. 775 (1998).
FRANKLIN V. GWINNETT CTY. PUB. SCH., 503 U.S. 60 (1992).
GEBSER V. LAGO VISTA INDEPENDENT SCH. DIST., 524 U.S. 274 (1998).
HARRIS V. FORKLIFT SYSTEMS, INC., 510 U.S. 17 (1993).
MERITOR SAVINGS BANK V. VINSON, 477 U.S. 57 (1986).
ONCALE V. SUNDOWNER OFFSHORE SERVICES, INC., 523 U.S. 75 (1998).
© Copyright 2021 by author, Carolyn Jones
