Still Unequal: A Review of Two Recent Books on Sexual Harassment by Catharine MacKinnon and Theresa Beiner

MacKinnon's Book: Her Evolving Thought on Sex Harassment and Sex Equality

MacKinnon, of course, is the matriarch of feminist legal theory. She has paved the way for many other thinkers with her innovative work regarding sexual harassment law - a field she is credited with inventing.

Her book is divided into two parts, the first of which discusses "equality re-envisioned," focusing on women's lives under men's laws and sexual abuse as sex inequality. It provides a retrospective of book reviews, law review articles and speeches from 1981 through 2004; they show the evolution of MacKinnon's groundbreaking thinking on legal sex equality theory.

MacKinnon's opening essay on "Unthinking ERA Thinking" was first published nearly twenty years ago. Unfortunately, it is not outdated. The underlying critique - that sex equality issues come down to women's sameness or difference from men, rather than to men's dominance over women - still holds true today.

The battlefields may have shifted, but the fight is the same - as MacKinnon points out, the culture still assumes an essentially dominant (male) definition of what issues are "sex equality" issues.

MacKinnon's preoccupations in the 80s and 90s were rape, prostitution and pornography. The contemporary focus is on gay marriage and "moral values" - a phrase that is code for a number of issues that affect primarily women. Reproductive freedom has been a constant - though now the issues range from access to the "morning-after pill" without a prescription, to the FDA's politicization of RU-486, to stem-cell research, to the Unborn Victims of Violence Act.

MacKinnon's Continuing Conflation of Pornography and Violence Against Women

MacKinnon has always been a foe of pornography - claiming that there is a smooth continuum that "runs from Playboy through sadomasochism to snuff." But this conflation of very different issues has, in my opinion, weakened her work - and believe me, I'm not suffering from false consciousness.

I have appeared in Playboy twice and can assure readers that I was not coerced, it has not led to S&M or snuff, and they can see more skin than I ever showed by simply reading Elle, Vogue, or Vanity Fair. Pictures in Playboy do not oppress women any more than MacKinnon's fawning poses for a lovey-dovey pictorial with her then-fiancé Jeffrey Masson in New York magazine oppressed her. If you're not convinced, consider that, by posing, I made three times what I'm being paid for this column in one-tenth of the time it took to write it.

To the extent MacKinnon felt an "explosion in the pornography industry" in 1990, it must feel like a nuclear meltdown these days. Pornography is so ubiquitous and mainstream that it was recently joked about on the primetime TV show Friends. And sadomasochism is a key plot line on the hit show Desperate Housewives; one character's husband seeks out a prostitute to play out fantasies he is afraid to broach with his wife.

The current ubiquity of pornography means that when MacKinnon argues that "[u]nder the law of obscenity, pornography is supposed to be against the law," the essay clearly seems dated. Plainly, our culture does not see the pornographic as inherently obscene, nor does our law.

Can Privacy Protect Women, Rather Than Putting Them in Jeopardy?

Similarly, MacKinnon's argument that "[a]s a legal doctrine, privacy has become the affirmative triumph of the state's abdication of women" - essentially an excuse to abuse women behind closed doors - is less convincing than it once was.

Consider the 2003 landmark Supreme Court decision in Lawrence v. Texas, which enshrined for the first time a broad constitutional right to sexual privacy - and rejected purely "moral" justifications for laws. Even though Lawrence stemmed from the arrest of two gay men for violating an anti-sodomy law, lesbians, too, have achieved traction with privacy arguments.

For example, when Hillary and Julie Goodridge became lead plaintiffs in the lawsuit that led to same-sex marriage in Massachusetts in 2003, the Boston Bar Association supported gay marriage on the ground that it showed the proper respect for individual privacy in the matter of marriage. While equality arguments ultimately prevailed in Goodridge, privacy arguments are making a significant contribution to the same-sex marriage fight.

MacKinnon once complained that the privacy of the bedroom was an excuse for men to watch pornography. But more recently, it's been a wedge for gay women to seek equality when it comes to the right to marry.

MacKinnon on a New Theory of Sex Equality that Takes Hierarchy Into Account

In her essay on a new theory of sex equality, MacKinnon criticizes the mainstream legal approach of using the Constitution's "similarly situated" test as the threshold for equal protection scrutiny. She offers an alternative approach: A theory of equality that is not blind to the hierarchy of systematic group-based disadvantage. She makes this argument again, three chapters later, in her essay on "What Brown v. Board of Education Should Have Said," which is poignant in light of the decision's recent 50th anniversary.

The chapter on law's stories as reality and politics contains an interesting discussion of the contribution of narrative to law. MacKinnon worries that, while storytelling can make law more real, it also risks making it entertainment. (She must be mortified by the advent of Court TV and "reality" programs since she first wrote on the subject.) The chapter that follows reiterates that law is not fiction, and expresses concern that the collective story told by academic theorists takes from people their authorship of their own lives. Yet MacKinnon, later, also acknowledges that storytelling is a key contribution of critical race theory to legal methods, and remains a powerful means of exposing dominant realities and sharing subordinated ones.

The subsection on "sexual abuse as sex inequality" contains lengthier articles, beginning with an examination of the effect of the addition of sexual harassment into sex discrimination doctrine and equal protection theory. Thanks to MacKinnon (and, as she explains in a later chapter, to the D.C. Circuit's sage decisions), the law now recognizes sexual harassment as a form of sex discrimination. She outlines this new doctrine of sex equality, and shows what it would look like as applied to sexual assault and abortion, so that the former would be actionable as a form of sex discrimination, and the latter would be a sex equality right.

"Beyond Moralism" is one of the most fascinating essays in the book. In discussing how sexual harassment law transformed what was once a moral foible (if that) into a legal injury, MacKinnon examines the watershed events of the Thomas-Hill hearings of 1991 and the Clinton-Jones-Lewinsky debacle of 1998.

While Theresa Beiner's book suggests these two events increased public awareness and understanding of sexual harassment, MacKinnon believes that the Clinton scandal was a setback to the gains made by the Thomas-Hill hearings.

In support of this contention, MacKinnon points out that what happened to Anita Hill was publicly perceived as sexual harassment (even though hostile environment sexual harassment was barely recognized at the time), while what happened to Paula Jones was legally deemed not to be (even though what she alleged was both more severe and more certainly within then-existing legal standards for sexual harassment). She also points out that the extreme power differential - and thus the question of whether there was truly mutual consent - between Clinton and Lewinsky was hardly touched on in discussions of the case.

In a later chapter, MacKinnon deftly answers the nine most frequently-asked questions she received on the Thomas-Hill hearings, and in two of the most powerful paragraphs in the book, she scripts what an apology from President Clinton should have looked like. This is an apology that American women of every political stripe, especially those who adore him, have so far only imagined in the back of their minds; MacKinnon's articulation of it is thus powerful indeed.

MacKinnon does an in-depth analysis of the Supreme Court's split decision in United States v. Morrison, which invalidated the Violence Against Women Act of 1994. The Act's civil remedy provision made gender-motivated violence federally actionable as sex discrimination, and MacKinnon feels the Court did not correctly assess the law's constitutionality under existing federalism, commerce, or equality doctrines.

She points out, on the bright side, that at least the Supreme Court, in Morrison, did not question the legislative conclusion that sexual assault is a practice of discrimination on the basis of sex. And, in the next chapter, she proposes applying this reasoning to the law of sexual assault.

The Second Part of MacKinnon's Book: Controversial Essays on Speech and Sex

The second part of MacKinnon's book deals with sexuality, inequality and speech. This is the more controversial material for which MacKinnon is infamous - and that I have touched on above.

"Sex, Lies, and Psychotherapy" is her glowing introduction for A Dark Science by Jeffrey Masson. She praises his exposure of Freud's rejection of his original belief in his patients who claimed they were sexually assaulted. In addition, she criticizes not only Freud and his successors, but also historian Foucault and his followers, for how they defined the history of sexuality; specifically, she notes, they ignored the role of misogyny in sexuality and the place of rape, sexual harassment, forced prostitution, and pornography. (In an otherwise eye-opening essay, it blurs her objectivity that MacKinnon neglects to mention she was once engaged to Masson; romantic relationships that are as pertinent as this one ought to be part of any author's full disclosure.)

"The Death of Feminism" is one of the better, though tragic, histories I've read of the women's movement and its demise, or at least its corruption. But it is difficult to reconcile what MacKinnon views as the power of "women speaking in public" (particularly about "private" things like abuse and pornography), and her criticism that abuse in pornography should not be protected as "speech."

As a First Amendment absolutist, I do not think you can have it both ways, and on balance, I think free speech is more a friend of the subordinated than an enemy. Those who are dominant have many kinds of power; those who are dominated sometimes have only the power of speech. To let the dominant decide if the subordinated can exercise that power is dangerous indeed, as evidenced by the current Administration's assault on the civil liberties of immigrants, the politically unpopular, and other disenfranchised groups.

The final section on "pornography as sex inequality" contains MacKinnon's most notorious proposals, including pornography-as-defamation. It also references her proposed antipornography ordinance that would have made pornography civilly actionable by its victims as sex discrimination. As she notes, "[T]he civil rights law defines pornography as the graphic sexually explicit subordination of women [and men] through pictures and words that also includes women being sexually used and abused . . ."

This strikingly broad definition of what is "pornography" makes me wonder about whether classics like Tropic of Cancer and Lolita--books often waved at MacKinnon by her opponents fifteen years ago - would qualify. It also caused me to reflect on more recent examples that would be arguably actionable under MacKinnon's ordinance.

Were MacKinnon's ordinance the applicable law, Paris Hilton could sue Rick Solomon for Internet distribution of their sex video (made with her consent, but circulated without it). And the thinly-disguised paramours of Jessica Cutler (a.k.a. Washingtonienne) could sue her for producing, exhibiting and selling their stories in her graphic and explicit sex blog and subsequent book. But, ironically, it was Ms. Cutler who was arguably the prostitute for these wealthy and powerful men. Under MacKinnon's analysis, why should Cutler be the one who is penalized?

These incidents beg for a new look at MacKinnon's ordinance - and also at her later essay, which addresses cyberporn.

Even if I don't always agree with MacKinnon, she is brilliant and the book left me wanting to read more. I wanted to know what she thought about the sexual humiliation-as-torture in the Abu Ghraib prison abuse scandal. What about the use of women soldiers--performing lap dances on prisoners and straddling them--as sexual foils in interrogations? Has the clergy sex abuse scandal garnered so much attention because it is men who are making the majority of the claims, or because it involves not just a priest-parishioner power differential, but that of a priest and child?

Likewise, did the Michael Jackson case resonate because it involved boys as claimants and an extreme child-superstar power differential? Or was part of the hysteria over a defendant who literally appears conflicted about both his race and gender?

Did people believe the former producer who accused talk show host Bill O'Reilly of sexual harassment because of his hypocrisy or her credibility (a fact enhanced by the recordings she made of his "phone sex," which undermines MacKinnon's claim that all taped lurid sex-talk is pornography)?

Some Sharp Contrasts Between MacKinnon and Beiner

Whereas MacKinnon often focuses on theory, Theresa Beiner's book, Gender Myths v. Working Realities, is an attempt to evaluate sexual harassment law in practice - to see how it may conflict with, or be supported by, social science research about the reality of the workplace.

One interesting contrast between theoretician MacKinnon, and the more pragmatic Beiner, comes in their respective discussions of the "unwelcomeness standard" of sexual harassment law: If sexual conduct is unwelcome, it's illegal - whether or not the victim protests.

MacKinnon believes the "unwelcomeness" standard would be a good replacement for the "consent" standard of rape law - because she believes even "consenting" victims may be under compulsion, and not free to say no.

Beiner, however. views the "unwelcomeness" requirement as at best unnecessary or irrelevant, and at worst as dangerously subjective. And she points out that it has hurt women - leading to intrusive discovery about victims' personal information. (Discovery may ask: If this sex was "unwelcome," what kind of sex did the victim "welcome" in the past?)

Another difference between the two writers centers on the controversial and prolific Judge Richard Posner. MacKinnon criticizes Posner for being a biological determinist, while Beiner cites him favorably, especially his observation that "welcome sexual harassment is an oxymoron."

Finally, there is a difference in the two authors' choice of the paradigmatic workplace environment. While MacKinnon focuses primarily on typical office harassment, Beiner focuses on sexual harassment in male-dominated, blue-collar work environments (for example, those of autoworkers and miners).

Still, MacKinnon and Beiner's bottom line is the same: sexual harassment is based on sex discrimination, and sex discrimination still exists in spades.

Beiner's Book: A More Pragmatic Take on the Law of Sexual Harassment

Beiner dissects each element of sexual harassment law and evaluates it through the lens of social science. Under the law, sexual harassment must be "unwelcome," "based on sex," and "severe or pervasive". Also, while the harassing actions are those of a supervisor or co-worker, it is the employer who faces imputed liability. Beiner asks: How do these legal requirements play out in the real world?

In conceptualizing sexual harassment as "because of sex," Beiner uses social science models of sexual harassment - including the sociocultural/power model (pioneered by MacKinnon), the organizational model (a cousin of the power model, but one that focuses on hierarchical power imbalance, not gender-based power imbalance), the sex-role spillover model (postulating and examining the carryover into the workplace of gender-based expectations for behavior), and the natural/biological model (rejected by both MacKinnon and Beiner, this model sees sexual harassment as rooted in nature).

Courts have had difficulty, at times, determining whether harassment is "because of sex." Beiner suggests that these models may be helpful to provide a basis for the courts to rule that harassment was indeed "because of sex," as the law requires, in specific contexts that have proved problematic - such as male-on-male harassment, the equal-opportunity bisexual harasser, and the failed consensual relationship). Although such cases are statistically rare compared to instances of ordinary sexual harassment, it is important that the law reach them, too - for there, too, individuals' work life is unjustly controlled not by their work, but by their boss's or colleague's sexuality.

Responding to the Reality that Women Often Don't Feel Free to Report Harassment

Beiner also critiques the legal standard for imputing liability to employers for the harassing acts of supervisors (as opposed to co-workers). The net effect of the Supreme Court cases defining this standard is that lower courts often place a significant burden on the plaintiff to report harassment, even though in reality - and understandably - victims delay reporting or do not report at all, and even though the burden of proof to establish the affirmative defense based on employee non-reporting is, in theory, on the employer.

MacKinnon agrees that the Supreme Court's rulings reflect a lapse in measuring sexual harassment as an injury on equality terms - the very reasons women do not report, or do not quickly report, harassment, may be the same reasons of workplace inequality that meant they were harassed in the first place. Like Beiner, she argues that it is inappropriate to place the burden on a woman to rapidly report harassment to the same company in which she is suffering it.

Beiner suggests reformulating the legal approach for imputing liability, which places so much emphasis on the targets' reporting behavior. Instead, she suggests, courts should examine the workplace environment in assessing the "totality of the circumstances" that made the harassment possible (including, as one factor, whether there are reasonable measures to prevent and correct harassment, such as reporting mechanisms). She also suggests using punitive damages in a creative manner to encourage such measures.

Beiner's Practical Suggestions to Reform the Law to Match Reality

Beiner not only dissects the courts' standards for evaluating sexual harassment claims, she also makes constructive suggestions for how the law should be reformed. She suggests loosening the "severe or pervasive" standard - which leaves some significant harassment legal. She also suggests abandoning the reasonableness standard, and jettisoning the "unwelcomeness" standard.

In addition, Beiner proposes that courts should conduct a multifactored analysis (one whose factors would be based on social science research on workplaces) in determining whether harassment was "because of sex." Also, she advises doing away with the "avoid harm otherwise" (through providing policies, training programs and reporting mechanisms) prong of the test for imputed liability, and eliminating damages caps.

It makes one wonder what would be left of sexual harassment law, if all Beiner's proposals were adopted - and wonder, also, why the law is so out of step with workplace realities that Beiner is impelled to propose such sweeping reform.

If MacKinnon's passion could be combined with Beiner's practicality, books like theirs would not need to exist.

---

Jesselyn Radack teaches and writes on legal ethics and national security/ counterterrorism. She currently works with the ABA Task Force on Treatment of Enemy Combatants and serves on the D.C. Bar Legal Ethics Committee.