Sandra Erez waxes eloquent about milestones in the ongoing fight against sexual harassment and gender discrimination, covering cultural shifts, legislation and landmark Supreme Court cases. While we’ve made serious progress, there’s still work to be done, and training will play a key role.
I was a young girl in 1968, when the famed Virginia Slims cigarette commercial spilled over the airwaves and titillated the public with the notion of a cigarette designed just for women. As burgeoning women’s libbers – on fire with the promise of equality between the sexes – we fell into the commercial advertising abyss, hook, line and sinker. Although laughable now, the concept of a gender-based cigarette created just for women was timely, brilliant and, on the face of it, empowering!
Once ridiculed as “loose” if they smoked, women were suddenly flung over the ashes of past generations into an era of recognition by the powerful men of the advertising world. The tobacco industry was ready to peg women as a commercial force and to promote smoking as a symbol of our emancipation. This “torch of freedom” could yield the hungry mad men a tidy profit while leveraging so-called social justice, and it did. It didn’t matter that I was too young to smoke; I couldn’t wait to grow up and get a pack of those cool, slender cigarettes as my personal contribution to the feminist movement. How could we not buy in to this when pipedreams of a rosier, equality-based future clouded around our innocent heads like so much Virginia Slims smoke?
Many years later, that hummable jingle insisting we’ve “come a long way, baby” ruefully mingles with reverberating thuds as those smoke-and-mirrors walls come tumbling down around us. The countless #MeToo stories magnified in the public eye remind us that although the cigarette commercials might have long ago evaporated from the airwaves, the specter of women considered as mere sex objects stubbornly lingers on. The battle against sexual harassment and discrimination remains a burning ember that refuses to die, even as people try desperately to stomp it out.
The truth is, enough talk eventually evolves into enacted legislation. While we applaud the courageous voices speaking out now, we are obligated to those early pioneers who bravely marched to court to fight against previously unspoken injustices when it was neither a popular nor accepted thing to do.
Williams v. Saxbe
Although Title VII of the 1964 Civil Rights Act legally protects a person from being discriminated against because of sex, it wasn’t until 1972 that the Act got teeth, thanks to the case of Williams v. Saxbe and courtesy of a young, single mom named Diane Williams.
Diane worked as a public information aid at the U.S. Department of Justice for Community Relations Service. Diane was intimately familiar with the blatant racial tensions of the time and the associated legal discourse. Unfortunately, her supervisor wanted to get intimately familiar with her as well and made unwanted sexual advances, which she refused. After filing a complaint, she was dismissed from her position, stating her supervisor’s treatment was illegal under the Civil Rights Act, Title VII. The district court supported her claim and paid her compensation, ruling that the Civil Rights Act shields employees from retaliation for refusing their superior’s sexual propositions, otherwise known as setting the standard for the elimination of sexual cooperation as an employment condition. Because the supervisor, William B. Saxbe, had only required women to submit to his advances, he had created an artificial barrier to employment for one gender, but not the other. Bear in mind that although Williams v. Saxbe was decided in 1976, the term sexual harassment had been coined only a year earlier at Cornell University.
From the hallowed halls of justice to the venerated towers of academia, the fight against sexual discrimination ramped up a notch when Yale graduate Ann Olivarius arrived on the scene of the crime. Founder of Yale’s Women’s Caucus, Ann was asked to oversee a report marking the 10th(!) anniversary of women’s admission to the university. Her commissioned survey revealed rampant sexual harassment of students by professors in the form of standardized sex for grades.
Convening a group of plaintiffs and legal scholars to tackle the lack of recourse for the victims, they sued Yale over its lack of a mechanism for sexual harassment complaints using a recently passed piece of legislation, Title IX of the Education Amendments 1972, which established the prohibition of sex discrimination in institutions of higher education. Now the sexually harassed cat was out of the schoolbag, as sexual harassment laws also applied to students. As a result, a harassment grievance board was established at Yale in 1978, with other colleges quickly following suit with their own reporting procedures. Whether hallowed halls or harrowing halls, the perpetrators of sexual harassment at academic institutions could no longer hide behind their flowing gowns.
Meritor Savings Bank v. Vinson
Recently graduated and off to find its place in the corporate world, sexual harassment reared its ugly head in the finance industry in the seminal 1986 case of Meritor Savings Bank v. Vinson. Mechelle Vinson, a bank employee whose boss intimidated her into having sex in bank vaults and basements, literally clawed her way out of the dungeon and into federal court.
Despite her detailed, fact-based testimony, the court dismissed her claim, stating her actions were voluntary. The appeals court then reversed that decision, claiming Vinson’s toleration of sexual harassment was a direct result of the fear of losing her job, thus constituting a violation of Title VII. Darkness turned to light when the Supreme Court took off its blinders and ruled in Vinson’s favor, declaring that a hostile work environment can constitute a form of sexual harassment and violate Title VII, without any economic loss being incurred.
This landmark ruling established the criteria for analyzing whether conduct was unlawful and when the employer was liable. More significantly, it turned the real sexual harassment query upside down – from whether a plaintiff’s participation was voluntary to whether the behavior was unwelcome – thus setting the standard in rulings for decades to come.
Anita Hill and Clarence Thomas
But as the wheels of justice seemed to be rolling forward, they screeched to a halt during Clarence Thomas’ confirmation hearings to the Supreme Court. In 1991, Anita Hill testified that the candidate had, in fact, sexually harassed her. How ironic is it, we asked ourselves, that women are supposed to be able to find justice in sexual harassment cases where the presiding judges are guilty themselves? It seemed that frat boys’ drinking clubs would continue masquerading as a justice system and the bouncers would just keep throwing the women out of the bar.
But a sharp public backlash whipped President George H. W. Bush into action and to dropping his opposition to a bill that gave harassment victims the right to seek federal damage awards, back pay and reinstatement. In fact, just one year later, public opinion had shifted dramatically in Hill’s favor, and harassment complaints filed with the EEOC soared by 50 percent. What at the time seemed to be a defeat was, in retrospect, a resounding success for the cause against sexual harassment and the privilege of justice not just for the privileged. The power of storytelling, only in its infancy in the ‘90s, was growing and would sow the seeds for Alyssa Milano’s blossoming #MeToo movement a little more than 25 years later.
Burlington Industries, Inc. v. Ellerth
Another voice was added to the cacophony of the harassed in 1998, with the case of Burlington Industries, Inc. v. Ellerth. Kimberly Ellerth, an employee of Florida-based Burlington Industries, sued the company for sexual harassment. Citing offensive remarks and unwanted overtures by her supervisor, she recounted that he also threatened to deny her job benefits unless sexual favors were granted. Her claim was dismissed in district court, noting that she had suffered no actual negative job consequences and that her actions were considered voluntary, as she did not report them to her supervisor. However, the Supreme Court disagreed and found that employers are liable for workers who sexually harass subordinates, even if the harassed employee does not face any adverse job consequences as a result.
In doing so, the court delivered a two-pronged victory against harassment, solidifying quid pro quo as a form of sexual harassment and establishing the onus of responsibility for a supervisor’s behavior on the company itself. That ruling prompted company management in general to scramble about for a solution to cover their collective ass. If supervisors and managers were no longer paper dolls for CEOs to hide behind, their personnel better get some serious sexual harassment training under their belts, with the hope they will stay belted if the training is good enough!
Christine Blasey Ford and the #MeToo Movement
The song of sexual harassment is ancient, and the refrain hauntingly familiar. But when we uncover the sources of key anti-sexual-harassment milestones, we can almost hear the melodic chorus of each courageous individual, painfully baring her or his soul in the quest to seek justice in an echo chamber. Speaking of chambers, we cannot finish this tale without mentioning Supreme Court Justice Brett Kavanaugh and Dr. Ford.
It’s 2019, and the #MeToo stories keep on coming – one of the most recent of which ended in a shrill note of pain, with the confirmation of Brett Kavanaugh in the face of Dr. Christine Blasey Ford’s heart-rending testimony. As we have seen, storytelling is great and powerful, but without action, it cannot open the locks of justice alone. It didn’t take this many years to get our stories out for lack of courage, but for lack of a viable, working mechanism that could safely capture injustice without fear of reprisal. #MeToo was created as a platform to carry the cries for justice against sexual harassment. But in order for any platform to continue to float in the sea of voices and provide a safe haven, it must be anchored to legislation.
A Corporate Answer: Dynamic Training Programs
So, if we are smart and learn from history, we shouldn’t underestimate the opportunity for some new sexual harassment legislation to actually empower us. Riding on the coattails of a new legislative framework being stitched together from California to New York, people can wrap themselves in its protective arms and hope for the chance of redress like never before.
Be vigilant and leverage the legislative requirements to choose emotive, experiential sexual harassment training that will change behavior. We must continue plugging on with all the tools we have got, until the light of accountability begins to shine of its own volition. Like an emperor without clothes, each policy read, each training taken, each reporting mechanism in place will expose the predators who lurk among us until they begin to fear they might get caught. Now there’s a fashion statement!
Remember those Virginia Slims cigarettes pandering to women and promising liberation and equality? They can be likened to those traditional, ridiculous harassment trainings that insult the intelligence of people by pretending they don’t even know what behaviors constitute harassment. Don’t buy into the illusion that all training is the same – get out there and get yourself set with proper, groundbreaking sexual harassment training fit for the #MeToo world. It’s not simply about compliance, it’s about marking a new era – one in which transparency will eventually clear the smoke from our eyes, with or without my Virginia Slims.
