from NWSA Journal Volume 9, Number 2
What's a Reasonable Woman to Do? The Judicial Rhetoric of Sexual Harassment
FRANCES J. RANNEY
Miami University
Permission to CopyYou may download, save, or print for your personal use without permission. If you wish to disseminate the electronic article, or to produce multiple copies for classroom or educational use, please request permission from:
Copyright Clearance CenterFor other permissions, use our online reprint request form.
Professional Relations Department
222 Rosewood Drive
Danvers MA 01923 FAX: 978-750-4470/4744
Web address: www.copyright.com
The aim of this essay is to interrogate the rhetoric of judicial opinions in the context of sexual harassment disputes. I pay particular attention to six appeals and Supreme Court opinions, whose factual findings, outcomes, and legal rationales are summarized in the Appendix. I have chosen these particular cases because they allow me to examine two especially interesting concepts unique to hostile environment claims in sexual harassment law: the "reasonable woman" standard of review, and the curious legal category "welcome harassment."1
"Welcome harassment," as Judge Richard Posner pointed out in his 1994 opinion in Carr v. Allison Gas Turbine Division (see Appendix), is obviously an oxymoron (1008). That its classification as such will not allow us to summarily dismiss the possibility of its legal existence is made clear by a strenuous dissent to Posner's opinion arguing that welcome harassment was recognized by precedent in the court's district (1013). The dissent could well have referred to precedent in many other districts; the existence of welcome harassment is implied by numerous judicial opinions referring to its logical counterpart, "unwelcome harassment" (my emphasis). Though the concept of "welcomeness" is of great importance in sexual harassment law and is frequently analyzed, the creation and derivation of "welcome harassment" has itself been the subject of very little notice or commentary.
The "reasonable woman" standard, in marked contrast, has received a great deal of attention since its use in a majority opinion in Ellison v. Brady in 1991 (see Appendix). Relying on the dissent to a 1986 case, Rabidue v. Osceola Refining Co. (see Appendix), the Ellison court held that the reasonable woman standard was more appropriate than the "reasonable person" standard derived from tort law (itself a replacement of the traditional "reasonable man" standard) to determine whether behavior directed toward women creates a hostile work environment and thereby constitutes harassment. Decried by some as signaling a feminist "attack on all rational discourse" (Letwin 34) and hailed by others as a way to allow justices to "borrow" (Brenneman 1301) the perspective of the "usual victim" (Rabidue 626) of sexual harassment, the reasonable woman standard has nevertheless so far failed to revolutionize this area of law.
As I examine these two terms--welcome harassment and the reasonable woman--I wish to make two major claims. First, I argue that a construction such as "welcome harassment," neither irrational nor dismissible because of its oxymoronic nature, provides clues to otherwise implicit ideological struggles. Second, I argue that justices encounter problems in visualizing or recognizing reasonable female behavior that could form the basis of a "reasonable woman" standard because the term is rendered oxymoronic by the ways its components have been traditionally defined in the legal context. To contend that these terms are oxymorons, and that this characterization is significant, is to recognize that an oxymoron is somewhat more than merely amusing, and somewhat less than logically false. Because its contradiction may be more apparent than real, we need to question our perception of it. What lies behind the seeming incompatibility of the oxymoron's terms?
I begin by examining the discussion regarding welcome harassment in Carr and the few commentaries that have alluded to it, and discuss briefly the concept of "welcomeness" developed by the Supreme Court for sexual harassment cases. Next I trace the history of "reasonableness" in the legal context. Noting its derivation from social convention, I examine both the reasonable man and reasonable person standards before moving to the reasonable woman standard. To question what happens to "reasonableness" when it is imported into the context of femaleness, I then turn to the judicial cases. In the judicial discussions of reasonable and unreasonable female behavior we find, I argue, an implied portrait of the reasonable woman. I conclude with some speculation as to the usefulness of the legal oxymoron as a rhetorical figure that can make visible otherwise implicit conflicts, and that can focus our attention on those areas where we most need to intrude into the legal discourse.
"Welcome Harassment"
Mary Carr was the first and only female tinsmith at the GM Allison Gas Turbine Division. Her male coworkers frequently referred to her by obscene epithets such as "whore," "cunt," and "split tail"; they displayed sexually oriented signs and posters throughout the work area and sabotaged her equipment; and one exposed himself to her on two occasions (1009). Her complaints to supervisors were ignored, and she lost her claim at the trial court level because the court believed that she had "invited" the behavior both by her poor work record (she was frequently absent) and by her own use of vulgar language and participation in some of the sexual jokes in the workplace (1015; 1010). "The tinners' conduct, to the extent it may have constituted sexual harassment," the trial court concluded, "was not unwelcome" (quoted in Carr 1011; 1014).
On appeal, the Carr majority opinion cursorily dismissed the notion that harassment could be "welcome" as oxymoronic, even though it exerted considerable effort to demonstrate that Carr had not invited the abuse she suffered. But the concept of welcome harassment, and the arguments deemed necessary to refute it, rates more attention than the Carr majority devotes to it. The dissenting judge in that case argued vigorously against overruling precedent in its district that recognized that a woman could invite, hence welcome, behavior that would otherwise be clearly defined under federal guidelines as harassment (1014).
In arguing that welcome harassment has a legal existence, the dissent relied upon precedent in its district that is matched in others. The most frequently cited source of this precedent is a 1982 case, Henson v. City of Dundee, which developed a five-part test for determining whether a woman presents a valid claim of sexual harassment. The Henson test, imported wholesale into succeeding judicial opinions, refers to language issued by the Equal Employment Opportunity Commission (EEOC) as its authority, though the form that language takes in Henson has been significantly altered.2
EEOC guidelines effective since 1980 say that sexual harassment may consist of "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" (Equal Employment 1604.11-a; my emphasis). But element 2 of the Henson five part test, through a process resembling that of a children's game of gossip, alters the regulatory language so that a woman must show she has been subjected to "unwelcome sexual harassment," which may take the form of sexual advances, requests for sexual favors, and so on (903; my emphasis). This transposed terminology appears in three of the six cases I analyze in this essay (Rabidue 619; Staton 998; Harris, 6th Cir. 5) as well as in many others.3
That "welcomeness" is crucial to claims of sexual harassment was confirmed after Henson by the Supreme Court in Meritor Savings Bank v. Vinson (see Appendix). Mechelle Vinson had participated in a sexual relationship with her supervisor out of fear that she would otherwise lose her job; she also testified that the supervisor had forcibly raped her on several occasions. Though the Supreme Court agreed with the trial and appeals courts that Vinson's participation in the sexual relationship was "voluntary," it remanded the case for a determination as to whether she had shown "by her conduct" (68) that her supervisor's sexual advances were unwelcome. The review of the plaintiff's conduct, the Court also held, could include her "speech or dress" (69).
Though the Court's distinction between "voluntariness" and "welcomeness" seems artificial and is not particularly useful, its establishment of criteria for determining whether behavior was welcomed by a plaintiff is controlling in all federal circuit courts. Welcomeness is thus the subject of numerous analyses. Radford notes that laying the burden of proof on the plaintiff-that is, requiring the plaintiff to provide evidence that she did not welcome the complained-of behavior-creates a "presumption of welcomeness" that assumes all behavior is welcomed until proven otherwise (524; see also Brennan 587n347 for a discussion of the parallel determination of "resistance" in rape law). Determining "welcomeness" itself is not unproblematic; as Bull shows, "irrelevant behaviors" such as dress and conduct (at the workplace and otherwise) are sometimes weighed more heavily than a woman's direct request to an individual to stop harassing her (148). Such evidence should be excluded, according to Juliano, under federal rules that bar admitting testimony about evidence that does not make the existence of any other fact more or less probable (1589).
Most analyses of Meritor, such as the above, are concerned with interpreting the Supreme Court's guidance rather than tracing the lineage of its language. The Supreme Court itself, though it refers to both the EEOC guidelines and the Henson opinion, does not remark upon the language shift that occurs between those two texts. Recent commentary regarding the Carr opinion pays scant attention to Posner's discovery and rejection of "welcome harassment": Nussbaum merely notes that Posner dismisses it as a "nonquestion" (1503n77); Gregory notes without elaboration that Posner's refusal to consider the viability of "welcome harassment" is "flawed" (379n88).4 Posner himself seems uninterested in the origin of the term, and does not question it.
More is at stake here than what some might derisively call "mere semantics" (or "mere" rhetoric). A great deal of legal scholarship today both affirms and expands upon Mellinkoff's assertion that "the law is a profession of words" (vi). Rhetorical exigencies such as legal disputes "require the use of language to effect change" (Levine and Saunders 115); in the texts from which such disputes arise (or in which they are resolved), we may not separate content from the words in which it is expressed (Gopen 347), so that by studying writing we study the law itself (Britt, Longo, and Woolever 232). For Sarat and Kearns, words take on in law "a seriousness virtually unparalleled in any other domain of human experience" (2); for White, law is language (77). Can we, then, change our language without changing the law? And if not, as I argue, what is at issue in this particular change?
Classical rhetoric, in texts ranging from Aristotle's Rhetoric to Cicero's De Inventione and Quintilian's De Oratore, provides a heuristic specifically designed to identify what is at issue in legal disputes. Coming directly from the Greek as stasis (and often translated into English as "issue"), it appears to have originated in Aristotle's Physics, where it was the name given to the point of tension existing between two opposed motions (Dieter 349-51). Abstracted into rhetoric, stasis could both represent and characterize the tension existing between opposing arguments; it can also serve to characterize the apparent contradiction between the terms of an oxymoron.
Classical rhetoric generally recognized four types of stasis. I will not deal here with the first stasis, that of fact (concerned with discovering what actually happened) or with the fourth, that called variously translation or objection (concerned with the proper jurisdiction in which to bring a complaint). Issues of fact and jurisdiction are, in the U.S. legal system, generally resolved at the trial court level and do not figure in the appeals courts, the area of my interest in this essay. Instead, I will focus on the second and third stases, those of definition and quality.
Clearly, part of what is at issue in the debate over welcome harassment is definition. Meritor attempted to define welcomeness, but its definition has been controversial and difficult to apply; the Supreme Court itself remarked that such determinations present "difficult problems of proof" that are based largely on determinations of the credibility of the witnesses (68). The courts generally assume that they are defining harassment as set forth in the EEOC guidelines, though, as we have seen, they are not. Both courts and legal analysts sometimes use "harassment" rather loosely; Gregory, for example, discusses unwelcome "harassment" (363n2), "advances" (373), "conduct" (382), and "encounters" (383) without distinguishing among them. The Henson transposition of (sexual) harassment and (sexual) advances appears to support the notion that the terms are interchangeable and nearly equivalent, with significant consequences. For if advances and harassment are synonymous neither one of them, per se, is illegal, as the "unwelcomeness" requirement makes clear.
It would be unusual for a legal dispute to revolve around only one issue, and such is not the case here. That quality, referring to the seriousness of an action, is also an issue is evidenced by the eerie resemblance the usual defenses invoked to justify harassing behavior bear to the qualitative defenses recognized by classical rhetoric. These include "blame-shifting," where a defendant claims to have been compelled to an action by other parties; "counterplea," in which a defendant argues that the action actually produced a benefit; and "countercharge," the argument that any injury the action produced was deserved (Nadeau 56). In the frequent argument that harassers are acting in accordance with normal male behavior we see classical blame shifting; in the claim that their intentions are good we find counterplea; the defense that any injury the plaintiff received was justified because she deserved (or "welcomed") it is a classical countercharge.
Once "welcome harassment" is recognized as an issue of quality, of the "seriousness" of the action, it also becomes clear that it is a matter of extent: the question to be determined is not whether male workers can legally harass female workers but only to what degree. We might well adopt MacKinnon's observation regarding rape and apply it to sexual harassment; it is not so much prohibited as it is regulated ("Feminism" 190).
By most people's standards, "welcome harassment" remains an oxymoron. However, the idiosyncracies of the legal definitions of welcomeness and harassment create of that oxymoron a viable legal category, one created by judicial language and preserved through the legal system's reliance on precedent. Until that category is seriously addressed by the judiciary, any individual bringing a sexual harassment suit will have the burden of proving not only that she was harassed but also that she did not enjoy it.
Reasonable Men, Persons, or Women?
The various reasonableness standards, and choices regarding which should be used in making sexual harassment decisions, are intricately tied to the notion of welcome harassment by the requirements of the hostile environment claim. Because the EEOC guidelines do not specify how courts should determine whether an environment is hostile, it is necessary for the courts to adopt a perspective from which to make that judgment. A more or less concrete standard of reasonableness is needed in order to provide that perspective. The reasonable man standard, constructed gradually over several centuries and reflecting the traditional male control of our legal system, does not appear in sexual discrimination adjudication. Appearing instead is the reasonable person standard that is intended to correct the reasonable man standard's male bias. Yet this standard, too, is of questionable neutrality as it appears in the realm of sexual harassment disputes. The reasonable woman standard is therefore often proposed to correct the deficiencies of its predecessors. After a discussion of the construction of reasonableness itself, I discuss each standard briefly in turn.
Reasonableness and custom. According to Whitman, reason has been linked to custom since at least the late Middle Ages. The identification, however, began to form early in the medieval period, when judges' reliance on local customs to resolve legal disputes became more difficult owing to the increasing centralization of the court systems in Europe and England (1340-41). Assembling "wise men" to testify as to local tradition became problematic, as was the difficulty such men had in articulating coherent traditions. Judges eventually resolved the dilemma by relying on findings in earlier cases that seemed similar to the case at hand, if those prior cases reflected a customary practice that could be justified as "reasonable" (1339).
Linking reason and reasonableness to local custom potentially allows disputes to be resolved contextually, with full knowledge that such resolutions are individual and contingent. However, we tend to view social custom as necessary and natural, a view that Whitman links to a shift from the Aristotelian concept of phronesis (a practical wisdom learned through cultural experience) to a Cartesian conflation of tradition with universal first principles (1349; 1362). The same naturalizing and universalizing tendency that led medieval jurists to see custom as a secondary form of natural law (1349) is visible in the more recent tradition linking reason to social consensus through the image of the reasonable man.
The "reasonable man." The "man in his shirtsleeves" was used to give concrete meaning to the image of reasonableness developed in negligence law early in the twentieth century (Ehrenreich 1210). That image, later imported into sexual discrimination law, unabashedly invokes maleness as it simultaneously attempts to appeal to ideals of tolerance and inclusiveness. This unjacketed man, who "takes the magazines at home and in the evening pushes the lawn mower," is clearly neither an elite nor a member of the underclass (1211). As such, the image is intended to mediate among diverse social and economic groups. But Ehrenreich argues convincingly that the image incorporates not only gender but also class hierarchies; the man in his shirtsleeves has no office at which to receive magazines and no groundskeeper to mow his lawn--though he does have a lawn. Simultaneous with its invocation of average middle-class norms, then, is the standard's reliance upon class hierarchies that derogate the norms themselves. It can claim to be tolerant of diversity, that is, by the very act of sympathetically portraying a working-class male--and precisely because that male is generally considered inferior to the upper-class males creating the standard (1213).
Far from mediating between conflicting individuals and groups, the legal concept of reasonableness embodied by the man in his shirtsleeves invokes and coerces adherence to conventional norms (Ehrenreich 1181). Those norms are presumed to have arisen from a social consensus that recognizes differences among individuals and groups, since the need for consensus would not exist if all were alike. Yet reliance on that presumed consensus minimizes the importance of those differences through the implication that any consensus is necessarily widespread and that those who deviate from it are frankly deviant (1204, 1213). The reasonableness standard becomes in Ehrenreich's view explicitly tied to the (male) status quo (1178).
The "reasonable person." Adler and Peirce are probably correct in maintaining that most courts now use the term "reasonable person" to replace the "reasonable man" (807). The presumption that the reasonable person standard carries with it a neutrality that the reasonable man standard lacks--particularly, gender neutrality--is, however, questioned by many feminist legal theorists. MacKinnon maintains that "gender neutrality" merely excuses a blindness to gender that in turn requires women to be the same as men, thus benefiting primarily those women who can show that they meet the male standard, at least on paper ("Difference" 83, 85). Williams, voicing an objection similar to MacKinnon's, maintains that insisting on gender neutrality "by definition precludes protection for women victimized by gender" (111).
Williams argues that what we need instead is a rule that is "sex- but not gender-neutral" (111). Such a rule, she argues, would benefit not only women but others who may function socially in ways normally expected of women (for example, men who are the primary caretakers of their children). Sex, in this view, is a biological characteristic; gender is a social construct that incorporates common conceptions of the proper roles for persons of one or the other biological sex. Williams's "sex-neutral" rule is intended to protect cultural behaviors normally associated with females, whether those engaging in the behaviors are female or male. MacKinnon, however, does not share Williams's interest in sex neutrality. Her brand of feminism is not objective, claiming "no neutral ground or unsexed sphere of generalization or abstraction beyond male power" ("Feminism" 182). Society has a way of taking care of the biological male, she says, since "virtually every quality that distinguishes men from women is already affirmatively compensated" ("Difference" 84).
Merely substituting the word "person" for the word "man" in the reasonableness standard fails to import neutrality into the standard because of the long association of reasonableness itself with customs and conventions drawn from male contexts. Such an association allows courts using a reasonable person standard to make otherwise unsupported assumptions about the potential offensiveness of workplace behaviors: that women are not harmed by sexual objectification in the workplace since that objectification is rampant in our society, as the Rabidue majority claimed; that women could even welcome harassment as the Carr dissent insisted. In the face of these and similar judicial "findings," many believe (or at least hope) that the reasonable woman standard can serve as a corrective.
The "reasonable woman." The reasonable woman's history is, of course, the shortest of the three. Perhaps the first inkling that such a creature might exist occurs in a 1928 legal commentary noting simply that an exhaustive search of common law cases had yielded "no single mention of a reasonable woman" (Herbert, quoted in Adler and Peirce 807). Little wonder that the conjunction of the terms "reasonable" and "woman" has a peculiar sound to legal ears. Yet the two terms are conjoined in a 1984 Harvard Law Review "Comment" that suggests the new standard of review as the appropriate one for sexual harassment cases. Taking tort law as its point of departure, this Comment describes the new standard as an objective one that calls upon the perspective of a reasonable victim or plaintiff rather than the subjective perspective of a particular individual (1458-59).
Not all agree with this claim of objectivity or believe that it is essential to the standard's validity. Adler and Peirce see the reasonable woman standard as a combination of subjective and objective perspectives-the subjective perspective of a particular woman combined with the objective measure of reasonableness (798-99). Brenneman claims that courts should not attempt to analyze sexual harassment from a neutral viewpoint but should do so from the viewpoint of those who suffer from its effects.5 The reasonableness requirement, in her view, will protect defendants from what the Rabidue dissent called "the neurotic complainant" (Brenneman 1298, 1296; Rabidue 626). Neither Adler and Peirce nor Brenneman question the validity of reasonableness as an objective measure.
I have already discussed how legal tradition has established its understanding of reasonableness. It remains to be seen how legal tradition envisions women. Many judicial cases, legal commentaries, and business publication summaries of employment discrimination law accept the findings of studies showing that women's views of what constitutes acceptable or unacceptable sexual behavior differ considerably from those of men (Rabidue 626; Brenneman 1293; Collins 82). The challenge involved in applying such findings lies in recognizing the diversity of women's perspectives in order to avoid homogenizing them into a fallaciously universal "woman's point of view" (Rhode 41).
Rather than attempt to provide a comprehensive survey of how "woman" has been defined in the Western legal tradition, a project clearly beyond the scope of this essay, I prefer to let the judicial cases speak for themselves. From their discussions of reasonable and unreasonable female behavior I now draw the implied judicial portrait of a reasonable woman.
Judicial Portraits of (Un)Reasonable Women
Early in this essay, I claimed that the term "reasonable woman" takes on an oxymoronic character in the judicial opinions under discussion here. By making this claim, I do not wish to imply that women are not or cannot be reasonable. Instead, as I hope to show in this section, the traditional legal definitions of the two terms of this standard conflict. Often relying on essentialized and stereotypical views, and assuming a consensus among women that does not exist, the judicial concept of "woman" inevitably collides with the male-derived concept of reasonableness with which it is paired.
In general, and in these six opinions, the so-called reasonable woman must satisfy the usual feminine stereotypes: she must be passive and delicate so that she can easily be represented as a victim; she must be more pure and moral than men (Cahn 1416-17). This portrait certainly could not include Vivienne Rabidue, a woman the court described as "capable, independent, ambitious, aggressive, intractable, and opinionated" (Rabidue 615). Rabidue's nemesis at Osceola Refining Company was Douglas Henry, described by the court as an "extremely vulgar and crude" man who routinely referred to women as "whores," "cunt," "pussy," and "tits." He occasionally directed such comments at Rabidue, whom he also called a "fat bitch" who just "need[ed] a good lay" (Rabidue 615, 624). When Rabidue was fired (her employer said for arguing with the company president in the presence of a customer) she filed a sexual discrimination suit that included a claim of sexual harassment.
Rabidue did not prevail; the appeals court held that she had not shown the serious psychological damage that it believed necessary to a claim of sexual harassment. That requirement was specifically rejected by the Ellison court five years later, which adopted a reasonable woman standard.6 Kerry Ellison, a revenue agent for the IRS, filed her suit in response to the behavior of Sterling Gray, another agent who habitually pestered her with unnecessary questions, stared at her all day, and issued social invitations that she refused. When he began to write her disturbing letters that assumed they were involved in a relationship, Ellison complained to her supervisor. Because Ellison was being sent out of state for training, she did not pursue the complaint. However, when she received a long letter from Gray at her out-of-town hotel, she called her supervisor. Gray was temporarily transferred to another office upon Ellison's return from training but was permitted to return six months later. Ellison requested and received a transfer herself, and filed complaints with the IRS, the EEOC, and the courts successively.
Ellison eventually won her suit at the appeals court level. Her self-descriptions maintaining that she was "frightened and really upset," even "frantic" at the actions of her harasser, aided her cause with a court that saw her behavior as consistent with that of a reasonable woman (Ellison 874). There are hazards, however, to the strategy of portraying oneself as a victim. To make these hazards apparent, we must consider the alternatives available to working women--to fit into the already existing work environment as best they can (assimilation) or to demand that the workplace change to allow them to participate on an equal footing (accommodation).
Both assimilationist and accommodationist positions find voice in the Rabidue decision. The reasonable person standard adopted by the majority leads to a strict assimilationist view that validates existing conditions and rejects the notion that women are unable to tolerate them; the constant obscenities addressed by Henry directly to Rabidue were, the court said, annoying but not "startling," and even combined with the sexually oriented posters in the workplace
had a de minimis effect on the plaintiff's work environment when considered in the context of a society that condones and publicly features and commercially exploits open displays of written and pictorial erotica at the newsstands, on prime-time television, at the cinema, and in other public places. (Rabidue 622)
The accommodationist view expressed in the dissent, advocating the reasonable woman standard, contested the majority view of the workplace as a given to which women must adjust and maintained that the purpose of sexual harassment law, contrary to the view of the majority, was to bring about both workplace and broader social change (626), that is, to make accommodations.
Demanding that the workplace change in order accommodate women is problematic, as it can lend credence to those who might claim that women simply can't cut it in the modern workplace. But assimilation is also problematic, since it requires women to adopt male behaviors in order to succeed. Feminist legal theorists are, not surprisingly, split on the question of which strategy to pursue. Minow advocates both assimilation and accommodation in a dual strategy that questions male norms at the same time that it maintains women's fitness to enjoy male privileges (358). But Littleton rejects both, noting that assimilation requires only that we "treat likes alike," thus disqualifying women from privileges granted to men; accommodation, she claims, merely requires giving women what it takes for them to resemble men (36, 40).
Though both strategies are problematic, the perils of accommodation pale beside the consequences women face if they assimilate into the existing work culture and engage in male behaviors, following what appears to be the spirit of the Rabidue majority. Mary Carr provides a particularly vivid illustration of these perils, as her participation in so-called shop talk, the "roughhewn" language that cases like Rabidue contend is a condition of acceptance in the male-dominated workplace, seriously backfired. Labeled a "tramp" in testimony by a female welder because of her use of "the 'F' word" and because she told dirty jokes, Carr left herself open to the conclusion that she brought the admittedly excessive abuse she suffered upon herself (Carr 1010, 1014). Her claim, that she behaved as she did in order to "fit in" and earn the respect of her male coworkers, became plausible only upon appeal and was summarily dismissed by the dissenting judge (1011, 1015).
As Cahn points out and as Carr illustrates, the reasonable woman, whatever her faults, must be sexually chaste and more moral than men. Carr clearly failed the morality test in the eyes of the trial court, which criticized her "unladylike" behavior (quoted in Carr 1011). Staton v. Maries County provides us with another example of the virtue required of sexual harassment plaintiffs (see Appendix). Charlotte Staton, an ambulance dispatcher, filed a suit that claimed the county sheriff had made frequent sexual advances and eventually raped her. For the usual reasons (she had been "close to and confided with" the sheriff; she may have "invited" the behavior) the trial court had been unable to decide whether Staton had actually been raped. The appeals court, however, decided it didn't matter: because Staton had worked ten shifts after the "act of intercourse," it had not interfered with her work sufficiently to qualify as sexual harassment (Staton 997-98). As Adler and Peirce would say, the environment had not been "sufficiently hostile" (794).
The Eagle Forum's Schlafly has stated that a virtuous woman is rarely the target of sexual harassment (cited by MacKinnon, Feminism Unmodified 25 and Brenneman 1281). Paradoxically, these two cases show a presumption that the unvirtuous woman cannot be harassed either, though for different reasons. The unvirtuous woman, it seems, welcomes harassment; apparently the virtuous woman, like the female welder who testified against Carr, knows how to protect herself. She had no trouble with the men in the shop, the welder testified, because she would occasionally "zap them with her welding arc to fend them off" (Carr 1010). Unfortunately most women, like Carr, are not so equipped (1011).
The reasoning of judicial opinions is generally too sophisticated to invoke stereotypical images, however implicitly, without providing an apparent basis for them. The basis provided is often a comparison between the individual woman bringing the complaint and other women. In some cases, justices have relied on the claims of relational feminism to make individual women appear out of sync with their counterparts. In the case of EEOC v. Sears, for example, the court relied on the testimony of two feminist historians to conclude that Sears had not hired women for high-paying commission sales positions because women "lacked interest" in such competitive work (Milkman 375-76).
Another apparent basis for invoking stereotypical views of women rests in the notion of consensus. As Ehrenreich noted, "consensus" can function to both recognize and minimize differences among individuals, thus effectively characterizing differences as deviance. When the reasonableness standard becomes embodied in a man, woman, or (supposedly ungendered) person, that embodied individual is assumed to be not an "ideal" measure, but a representation of the "average" person possessing "all of the shortcomings and weaknesses tolerated by the community" (Adler and Pierce 807, glossing Herbert), or at least "those the community will tolerate on the occasion" (Keaton, quoted in Ehrenreich 1212n131). Once again, however, a seemingly tolerant and contextual standard of measure goes awry, as an arithmetic understanding of averageness results in what Ehrenreich calls "little more than headcounting" (1204).
Harris v. Forklift Systems, Inc. illustrates the results of such judicial arithmetic. Theresa Harris was one of only two female managers at Forklift Systems. The other female manager was the daughter of the company president, Charles Hardy, who was also the man Harris accused of harassment. Hardy, whom the district court's report characterized as a "vulgar" man, had a habit of asking female employees to retrieve coins from his front pants pockets or to pick up objects he tossed on the floor before him while he commented on their clothing. He occasionally suggested to Harris, in the presence of other employees, that she clinched contracts with customers by sexual means; when she finally complained about his behavior, he expressed surprise and promised to modify it but soon reverted to his prior manner.
The initial referee's report in this case, which was adopted by both the trial and appeals courts, remarked that the other female employees did not object to what it called "the joking work environment" at Forklift (6th Cir. 3). It concluded on that basis that Harris's status as a manager meant that she was "more sensitive" to Hardy's behavior than the (female) clerical employees (6th Cir. 5). Using those average female employees as the basis of this decision's sometimes reasonable woman, sometimes reasonable person standard resulted in a dismissal of Harris's claim at the trial and appeals levels, though Harris's case was later remanded by the Supreme Court.7
What construction of reasonableness, as it is presumed to exist in women, may we abstract from the characterizations and assumptions of these cases? It appears that the reasonable woman is indeed conceived as an "average" woman, though the term is construed in its arithmetic sense as measuring how "most" or "many" or "the other" women at a particular workplace would react to particular behaviors (Rabidue 626; Ellison 879; Harris 5-6). None of these decisions attempts to define the "shortcomings and weaknesses" cited by legal tradition or to delineate the standards of the community by any means other than an apparent, untested consensus. Instead, the decisions rely on customary views of women without questioning either those views or the tradition that assumes that what has "always" been represents both what is natural and what is reasonable.
Given the cases' acceptance of the customary and the status quo as definitive of reason, predictable consequences appear. Because few women hold management positions, for example, being average means not being a manager; syllogistic logic then holds that a female manager whose perspective differs from that of nonmanagement employees is not only not "average," but also not "reasonable" as well. As both Rabidue and Harris learned, women in the unusual position of being managers run the risk of looking "hypersensitive" to judicial eyes, so that their expectations about the ways they should be treated by male workers appear unreasonable (Rabidue 622; Harris, 6th Cir. 5).
Also predictably, the courts' reliance on stereotypes means that "reason" takes on distinctive characteristics in the "female" context. It is reasonable, for instance, for a woman to react emotionally to harassment--as Ellison did; it would be reasonable, again, for a woman to quit a badly needed job in response to harassment--as Staton did not, or at least not for a few days after her alleged rape. We find here a remarkable and unquestioned equation of reason with emotion when reason is conceived in its "female" form.
Less predictable, and even more disturbing, is the conclusion pointed to by the language of the referee's report in the Harris case. It was the clerical employees at Forklift Systems who served as the average and thus provided a benchmark of "reasonableness" against which Harris's sensitivity was measured. Those women, the referee bemusedly noted, appeared to have been "conditioned to accept denigrating treatment" (6th Cir. 5-6). The identification of reason, in the context of women, and the acceptance of debasing treatment could not be more clear, however circuitous the logical path may seem.
The reasonable woman implied by these judicial portraits should give us pause. Emotional, passive, and differing in no significant ways from her female coworkers, she must accept denigration. She must accept the status quo.
Intruding in the Discourse: The Uses of Oxymorons
The legal doctrine that at first seems "incoherent or puzzling as syllogistic logic," MacKinnon notes, "become[s] coherent as ideology" ("Feminism" 191). The puzzling incoherence of the oxymoronic "welcome harassment" is resolved when we realize that legal ideology creates a presumption of welcomeness until disproved, and an identification of sexual advances with sexual harassment. Given such ideologies, welcome harassment is not an oxymoron at all in the context of sexual harassment adjudication.
Likewise, understanding the ideologies behind legal constructions of reasonableness and female behavior reveals that the "reasonable woman" becomes, in this context if in no other, an oxymoron. The equation of reasonableness with male tradition sets up an irreconcilable conflict with the female context, one that cannot be resolved by resorting to an equally problematic equation of "female" reason with emotion.
So what's a reasonable woman to do?
If we want to bring about change in the field of law, Levine and Saunders have reminded us that we must use language in order to do so (115). Though Mellinkoff sees reasonableness as a flexible word that can absorb the shock of social change and make a "gradual adjustment of principle to fact" possible (450), we cannot share his optimism. Mellinkoff's caveat, that we must avoid confounding the term's appearance of determinacy with reality, is too often overlooked. The law does not, in fact, deal with "unattached reasonable's," as Mellinkoff points out (302). And it is, of course, on account of that attachment to context and to history that the meaning of "reasonableness" has been unable to provide the neutrality variously promised by the reasonable man, person, and (sometimes) woman in turn.
The contextualized reasoning so important to feminist theory will backfire if we make the mistake of claiming that its primary contribution is to identify a "neutral" consensus. Consensus, Ehrenreich reminds us, is not a determinant of legal results but a "vehicle for value choices" (1218). Rather than repudiate such choices, we must acknowledge that we are making them and contend that such choices have as much worth, if not more, than traditional legal "neutrality." Traditional neutrality attempts to "make legal categories trace and trap the way things are, . . . to make rules that fit reality" (MacKinnon, "Difference" 87). But we should, as MacKinnon says, be critical of reality (87).
We must, then, use language in order to critique reality, expose current ideologies, and reconstruct contexts and the questionable consensus about what is reasonable. Language is, of course, an imperfect medium; Derrida saw in the temporal deferral and spatial difference created by its representations (in what he called "différance") an inevitable intrusion (Bok 418). But we wish to intrude--to alter the traditional representations and thereby create new contexts, new and tentative agreements.
We need to lend a voice to the legal discourse, a voice that objects and hopes eventually to be sustained.
Appendix: Case Summaries
Meritor Savings Bank v. Vinson 477 U.S. Sup. Ct. 57 (1986)
Facts of the case. Mechelle Vinson was hired as a teller at Meritor by Sidney Taylor, who was her immediate supervisor for the next four years. Vinson testified that Taylor was at first a "fatherly figure" but that he eventually asked her to dinner, where he suggested that they go to a motel in order to have sex. Vinson consented, she said, out of fear that she would lose her job. She continued to have sex with him over the course of two years, and said that on several occasions he forcibly raped her. Taylor denied ever having had sex with Vinson.
Vinson was promoted several times during the years she worked at Meritor, but she was fired in 1978 after a series of disputes with Taylor (though the reason for her firing is not specified in the judicial opinion). She had never filed a complaint with the bank concerning Taylor's behavior.
The courts' holdings. The district trial court found that the sexual relationship between Vinson and Taylor was "voluntary" and that the bank had no responsibility for Taylor's behavior since it did not know about it. It also held that she had not suffered any economic harm, noting that her promotions had not been premised upon her participation in the relationship.
The appeals court remanded the case, saying that the district court had mistakenly treated the case as a "quid pro quo" complaint rather than a hostile environment complaint. It also held that the district court should not have relied on testimony about Vinson's dress or personal fantasies in deciding the relationship was voluntary, and that an employer is responsible for the behavior of its supervisory personnel whether it knows about it or not.
The Supreme Court agreed with the district court that Vinson's participation in the sexual relationship was voluntary, and held that testimony about her "speech or dress" was admissible in making that determination. However, it agreed with the appeals court that economic damage is not required for a hostile environment complaint. The Meritor court's definition of "welcomeness" (not necessarily implied, it said, in Vinson's "voluntary" relationship) is now a foundation of sexual harassment case law.
Rabidue v. Osceola Refining Co. 805 Fed. Rep. 2d ser. 611 (6th Cir. 1986)
(based in Cincinnati, OH)Facts of the case. Vivienne Rabidue was employed by Osceola's predecessor corporation as a secretary in 1970. During the time she worked there, Osceola was sold twice and Rabidue was promoted twice, to administrative assistant and then to office manager. The court, summarizing witnesses' testimony, found that Rabidue was a "capable, independent, ambitious, aggressive, intractable, and opinionated" woman, as well as an "abrasive, rude, antagonistic, extremely willful, uncooperative, and irascible" one (615).
Rabidue was involved in many confrontations with a company supervisor (Douglas Henry), and after she was fired for engaging in an argument with the company president in the presence of a customer, she charged the company with sex discrimination, including sexual harassment. According to the court, Henry was "an extremely vulgar and crude individual who customarily made obscene comments about women generally, and, on occasion directed such obscenities to the plaintiff" (615). Other women also found Henry annoying, and the company was aware of his behavior but unable to curb it.
A number of male employees had posters of nude or partially clad women in common work areas, including one of a prone woman with a golf ball on her nipple and a man standing over her with a golf club, yelling, "fore!" Henry routinely referred to women as "whores," "cunt," "pussy," and "tits." He said of Rabidue "all that bitch needs is a good lay," and called her "fat ass" (624). Though Rabidue filed frequent written complaints, the management did not fire Henry but gave him "a little fatherly advice" (624).
The court's holding. Rabidue lost her harassment claim when the court held that Henry's behavior had not altered a term or condition of her employment or caused her serious psychological harm. The work environment at Osceola, the court said, could not have seriously affected "the psyches" of the female employees, since it merely reflected existing social mores (622).
Staton v. Maries County 868 Fed. Rep. 2d ser. 996 (8th Cir. 1989) (based in St. Louis, MO)
Facts of the case. Charlotte Staton filed suit in district court for sexual harassment, claiming that while she worked for the county ambulance service the sheriff had made numerous sexual advances and eventually raped her. She continued to work for ten shifts after the alleged rape before quitting her job. The district court, based on testimony, agreed that both the advances and an "act of intercourse" occurred.
The courts' holdings. The district court, holding that Staton may have "invited" the sheriff's conduct, that the behavior was not "pervasive" enough to have altered the conditions of her employment, and that the county could not be held liable because it did not know of the incidents (998), denied Staton's claim.
The appeals court upheld the district court's decision, noting that Staton had not filed criminal charges against the sheriff and that because she had continued to work for ten shifts after the alleged rape, it had not interfered with her work performance. The court was therefore not required to determine whether the "act of intercourse" was rape or consensual.
Ellison v. Brady 924 Fed. Rep. 2d ser. 872 (9th Cir. 1991) (based in San Francisco, CA):
Facts of the case. Kerry Ellison, a revenue agent for the IRS, objected to the behavior of another agent, Sterling Gray, who was pestering her with unnecessary questions, hanging around her desk, staring at her all day, and constantly issuing social invitations that she refused. He began to write letters to her that assumed they were involved in a relationship and told her of how he enjoyed watching her "from O so far away" (874). Ellison was sent to another city for training and hoped that the harassment would stop, but she received a letter from Gray at her hotel. She then discussed the problem with her supervisor, and Gray was counseled and sent to another branch office when Ellison returned from training.
After six months, however, Gray was given permission to return to Ellison's branch. Ellison requested and was given a transfer to a different office. She then filed a complaint with the IRS, which found that Gray's behavior was not sexual harassment. When Ellison complained to the EEOC, that agency found Gray's behavior was sexual harassment but concluded that the IRS had taken care of the problem (875). Ellison then filed suit at the district court level, where she lost her claim.
The court's holding. The Appeals Court cited the dissent in Rabidue v. Osceola Refining Co. as it applied a "reasonable woman" standard to find that Gray's behavior didconstitute sexual harassment. It reversed and remanded the district court decision.
Harris v. Forklift Systems, Inc., West Law 45361 (U.S. Sup. Ct. 1993)
Facts of the case. Theresa Harris was one of only two female managers at Forklift Systems. The other female manager was the daughter of the company president, Charles Hardy, who was also the man Harris accused of harassment. Hardy, whom the district court's report characterized as a "vulgar" man, had a habit of asking female employees to retrieve coins from his front pants pockets or to pick up objects he tossed on the floor before him while he commented on their clothing. He occasionally suggested to Harris, in the presence of other employees, that she clinched contracts with customers by sexual means; when she finally complained about his behavior, he expressed surprise and promised to modify it but soon reverted to his prior manner. Harris finally resigned her position with Forklift.
The courts' holdings. The initial referee's report in this case, which was adopted by both the trial and appeals courts, finding that the other female employees did not object to what it called "the joking work environment" at Forklift concluded that Harris's status as a manager made her "more sensitive" to Hardy's behavior than the (female) clerical employees. Harris lost her claim at both the trial and appeals levels.
The Supreme Court reviewed Harris's case solely to determine whether the Rabidue standard of harm required to prevail in a sexual harassment suit was appropriate. It concluded, in an opinion written by Justice O'Connor, that a plaintiff may prevail in a suit "before the harassing conduct leads to a nervous breakdown" (3). Justice Scalia, reluctantly concurring in the decision, wrote that determining whether an environment is "hostile" is an ambiguous endeavor, and proposed an "objective" standard testing whether the plaintiff's work performance had suffered (4). Justice Ginsburg also added a concurring opinion, seemingly in response to Scalia's, specifying that a plaintiff need show not that tangible productivity has been affected by harassing behavior but that harassment had made it more difficult to do the job (5).
Carr v. Allison Gas Turbine Division 32 Fed. Rep. 3rd ser. 1007 (7th Cir. 1994)
Facts of the case. Mary Carr was the first and only female tinsmith at the GM Allison Gas Turbine Division. Her male coworkers frequently referred to her by obscene epithets such as "whore," "cunt," and "split tail"; they displayed sexually oriented signs and posters throughout the work area and sabotaged her equipment; and one exposed himself to her on two occasions. Her complaints to supervisors were ignored, and she eventually resigned after five years in the tin shop.
The courts' holdings. Carr lost her claim at the trial court level because the court believed that she had "invited" the behavior both by her poor work record (she was frequently absent) and by her own use of vulgar language and participation in some of the sexual jokes in the workplace. The court concluded that the tinners' conduct, "to the extent it may have constituted sexual harassment, was not unwelcome" (quoted at 1011; 1014).
The appeals court majority opinion dismissed the notion that harassment could be "welcome" as oxymoronic but also concluded that Carr had not invited the abuse she suffered. All Carr had to show, it held, was that the discrimination she suffered was "severe enough to cause a reasonable person to quit" (1012). It reversed and remanded the district court ruling. A vigorous dissent to the majority opinion argued that Carr had indeed welcomed the harassment and that precedent in the court's district required that her claim be denied.
Correspondence should be sent to Frances J. Ranney, English Dept., 356 Bachelor Hall, Miami University, Oxford, OH 45056.
Notes
1. The law generally recognizes two types of sexual harassment claims: "quid pro quo," where a plaintiff claims that she was discriminated against because she refused to engage in sexually oriented activity with the accused harasser; and "hostile environment," where the plaintiff claims that the accused harasser created hostile, abusive, or offensive working conditions (Equal Employment 1604.11-a).
2. Decisions in seven of the thirteen federal court districts cite some or all of the five-part test developed in Henson v. Dundee, including that requiring plaintiffs to show that they have been subjected to "unwelcome sexual harassment" (Radford 513-14).
3. The courts are within their rights in modifying the EEOC language, which was promulgated as "guidelines" to which courts "may properly resort for guidance" (General Electric Co. v. Gilbert 141-42). The guidelines are not controlling, but reference to the EEOC guidelines or the Henson test are customary.
4. Presumably, Gregory would agree with the Carr dissent that precedent has created "welcome harassment," at least as a legal category.
5. Brenneman's rejection of neutrality is not, however, consistent. Elsewhere in her essay she claims that the reasonable woman standard will be able to "neutralize" the divergent views of men and women about proper behavior (1283).
6. It was also later rejected by the Supreme Court in Harris v. Forklift Systems, Inc. (3-6).
7. The Supreme Court did not consider whether the person or woman standard should be applied but only whether the standard of harm adopted from Rabidue was correct. It determined that it was erroneous (Harris 3-6).
Works Cited
Adler, Robert S., and Ellen R. Peirce. "The Legal, Ethical, and Social Implications of the 'Reasonable Woman' Standard in Sexual Harassment Cases." Fordham Law Review 61 (1993): 773-827.
Bartlett, Katharine T., and Rosanne Kennedy, eds. Feminist Legal Theory: Readings in Law and Gender. Boulder, CO: Westview, 1991.
Bok, Christian. "The Monstrosity of Representation: Frankenstein and Rousseau." English Studies in Canada 18 (1992): 415-32.
Brennan, Noelle C. "Hostile Environment Sexual Harassment: The Hostile Environment of a Courtroom." DePaul Law Review 44 (1995): 545-98.
Brenneman, Deborah S. "From a Woman's Point of View: The Use of the Reasonable Woman Standard in Sexual Harassment Cases." Cincinnati Law Review 60 (1992): 1281-1306.
Britt, Elizabeth C., Bernadette Longo, and Kristin R. Woolever. "Extending the Boundaries of Rhetoric in Legal Writing Pedagogy." Journal of Business and Technical Communication 10 (1996): 213-38.
Bull, Christina A. "Comment: The Implications of Admitting Evidence of a Sexual Harassment Plaintiff's Speech and Dress in the Aftermath of Meritor Savings Bank v. Vinson." UCLA Law Review 41 (1993): 117-51.
Cahn, Naomi R. "The Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice." Cornell Law Review 77 (1992): 1398-1446.
Carr v. Allison Gas Turbine Division 32 Fed. Rep. 3d ser. 1007 (7th Cir. 1994).
Cicero. De Inventione; De Optimo Genere Oratorum; Topica. Trans. H. M. Hubbell. Cambridge: Harvard UP, 1949.
Collins, Eliza G., and Timothy B. Blodgett. "Sexual Harassment: Some See It, Some Won't."Harvard Business Review 59 (1981): 76-95.
Derrida, Jacques. "Différance." Margins of Philosophy. Trans. A. Bass. Chicago: U of Chicago P, 1982. 3-27.
Dieter, Otto A. L. "Stasis." Speech Monographs 17 (1950): 345-69.
Ehrenreich, Nancy S. "Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law." The Yale Law Journal 99 (1990): 1177-1234.
Ellison v. Brady 924 Fed. Rep. 2d ser. 872 (9th Cir. 1991).
Equal Employment Opportunity Commission. "Guidelines on Sexual Harassment." Code of Federal Regulations. Washington, DC: U.S. Government Printing Office, 1980. 29: 1604.11 (1980).
General Electric Co. v. Gilbert 429 U.S. Sup. Ct. 125 (1976).
Gopen, George D. "Rhyme and Reason: Why the Study of Poetry is the Best Preparation for the Study of Law." College English 46 (1984): 333-47.
Gregory, David L. "Sex Discrimination: Continuing Clarifications by the Second Circuit." Brooklyn Law Review 61 (1995): 363-95.
Harris v. Forklift Systems, Inc. West Law 487444 (M. D. Tenn. 1991). (6th Cir. 1992).
Harris v. Forklift Systems, Inc. West Law 45361 (U.S. Sup. Ct. 1993).
Henson v. City of Dundee 682 Fed. Rep. 2d ser. 897 (1982).
Juliano, Ann C. "Did She Ask for It? The 'Unwelcome' Requirement in Sexual Harassment Cases." Cornell Law Review 77 (1992): 1558-92.
Kennedy, George A., trans. Aristotle on Rhetoric: A Theory of Civic Discourse. New York: Oxford UP, 1991.
Letwin, Shirley R. "Law and the Unreasonable Woman." The National Review November 1991: 34-38.
Levine, Linda, and Kurt M. Saunders. "Thinking Like a Rhetor." Journal of Legal Education 43 (1993): 108-22.
Littleton, Christine A. "Reconstructing Sexual Equality." Bartlett and Kennedy 35-56.
MacKinnon, Catharine A. "Difference and Dominance: On Sex Discrimination." Bartlett and Kennedy 81-94.
---. "Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence." Bartlett and Kennedy 181-200.
---. Feminism Unmodified: Discourses on Life and Law. Cambridge: Harvard UP, 1987.
Mellinkoff, David. The Language of the Law. Boston: Little, Brown, 1963.
Meritor Savings Bank v. Vinson 477 U.S. Sup. Ct. 57 (1986).
Milkman, Ruth. "Women's History and the Sears Case." Feminist Studies 12 (1986): 375-400.
Minow, Martha. "Feminist Reason: Getting It and Losing It." Bartlett and Kennedy 357-69.
Nadeau, Ray. "Classical Systems of Stases in Greek: Hermagoras to Hermogenes." Greek, Roman, and Byzantine Studies 2 (1959): 51-71.
Nussbaum, Martha C. "Poets as Judges: Judicial Rhetoric and the Literary Imagination." University of Chicago Law Review 62 1995): 1477-1519.
Quintilian. Quinctilian's Institutes of Eloquence. Trans. W. Guthrie. London: Dutton, 1805.
Rabidue v. Osceola Refining Co. 805 Fed. Rep. 2d ser. 611 (6th Cir. 1986).
Radford, Michelle F. "By Invitation Only: The Proof of Welcomeness in Sexual Harassment Cases." North Carolina Law Review 72 (1994): 499-548.
Rhode, Deborah L. "The 'Woman's Point of View.'" Journal of Legal Education 38 (1988): 39-46.
Sarat, Austin, and Thomas R. Kearns. Editorial Introduction. The Rhetoric of Law. Ed. Austin Sarat and Thomas R. Kearns. Ann Arbor: U of Michigan P, 1994. 1-27.
Staton v. Maries County 868 Fed. Rep. 2d ser. 996 (8th Cir. 1989).
Vermett v. Hough 627 Fed. Supp. 587 (W. Dist. Mich. 1986).
White, James B. Heracles' Bow: Essays on the Rhetoric and Poetics of the Law. Madison: U of Wisconsin P, 1985.
Whitman, James Q. "Why Did the Revolutionary Lawyers Confuse Custom and Reason?" University of Chicago Law Review 58 (1991): 1321-68.
Williams, Joan C. "Deconstructing Gender." Bartlett and Kennedy 95-123.
IU Press Journals |
More about NWSA Journal |
Library |
Advance |
Tables of |
Copyright |