“The Problem is Not One that Can or Should be Legislated”: Sexual Harassment Doctrine, Gender, and Workplace Culture, 1964–91

Two years after the passage of Title VII, the federal provision that created women’s right to equality at work, a new guide to office politics urged women to emphasize the unique assets of their sex.  The author of “Working Girl in a Man’s World” claimed that a woman who controlled and manipulated her femininity, which was her “prize asset,” could obtain the objectives also sought by working men: higher pay, promotions, and respect.  Many feminists disagreed, arguing that a work environment in which sex difference was emphasized could expose women to disrespect or even assault.  In the mid-1970s, a coalition of employment rights and rape crisis activists gave a name to unwanted sexualized attention in the workplace: sexual harassment.  To counter the practice, activists pressured courts and employers to regulate workplace interactions and to enforce women’s right to be treated as gender-less workers. 

Yet, the records of feminist groups, professional associations, and contemporary publications reveal that working women disagreed over the terms and value of sexual harassment law.  Many wondered whether a litigious, adversarial approach was the best way to either end harassment or advocate for themselves. Struggles over sexual harassment did not unfold in the terms of sex equality and difference that have preoccupied scholars; rather, invested parties debated how to create the most material benefit for working women.  This paper argues that high profile court cases and growing employer concerns about liability, rather than a united struggle among working women, cemented today’s definition of sexual harassment as any unwanted attention to a worker’s sex or gender.  Further, today’s conception of women’s workplace rights as the downplaying of sex and sexuality has compounded the difficulty of discussing the ongoing disadvantages facing women due to their differences—whether real or perceived, biological or culturally assigned—from men.