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THE BRIDGE BETWEEN AMBIGUOUS, SUBTLE FORMS OF SEXUAL HARASSMENT AND AN INVISIBLE CULTURE OF GENDER BIAS
by Eloise Rosenblatt
Introduction
The existence of tokenism in legal hiring does not end gender bias but perpetuates it by holding up minimal hiring of women as a point of honor. As example, a u.s.-based international business law firm sent out an extravagantly expensive mailing of a 9 x 11 glossy-paper catalogue to many members of the American Bar Association in March, 2003, announcing its latest roster of "appointments" to various offices in North America, Europe, and Asia. No photographs, but each person had a blurb featuring academic accomplishments, professional expertise, and areas of legal specialization, such as computerized technology, anti-trust, or oil, gas and mineral resources. Of the ninety-five appointments, the men were all referred to as "Mr." All twelve women were "Ms." At least half the twelve women were non-White, including one from a mostly-Muslim country. Within a group of twenty "multi-national men," there were two women. One woman had a specialty in engineering, and there was one "multi-lingual" woman.
What professional challenges do these women face? I wondered how many "Mr.'s" could be presumed to have a wife and children and also hold a high corporate position. By contrast, I wondered whether women described as "Ms." were married or had children, or whether they would ever acquire the years of experience, reach the equivalent positions of authority, or be employed by the firm as long as the men.
Has Gender Bias Been Overcome?
The scholar Deborah Rhode treated gender bias in the legal profession in her 2000 In the Interests of Justice: Reforming the Legal Profession, later noting that it must still be faced as:
problems in the advocate's role, the adversary system, the conditions of practice, the regulation of competition, the distribution of legal services, the oversight of professional conduct, the standards for admission, and the structure of legal education.
In his review essay, Robert Gordon of Yale assumes that the major effects of gender bias in the legal profession have been overcome:
The present order has some good effects: Perhaps it is more efficient than in the old days; perhaps it organizes work better; and at least if the clients have money and clout, it is certainly more competitive and more responsive to their demands. Certainly, it has broken down the old ethnic, racial and gender barriers. Elite law firm practice used to be a practice for white male Protestants only - that system only began to change in the 1970s. Now Catholics and Jews really are equals; women and blacks are hired in numbers proportionate to law school graduates, though, as Rhode among others has shown, they still have trouble making partner.
Gordon interprets the main problem of the legal profession to be the loss of perspective in which lawyers who used to construct legal arguments in the general interest of society now "rationalize adherence to a long-term client's narrow agenda as the lawyer's highest calling."
However, Gordon's sanguine view about gender bias is not shared by other scholars who look beyond the legal profession to women's workplace experiences. For example, Beiner maintains the problem of harassment persists and that courts should use clearer, empirical data of social science, based on the actual experience of women, instead of a narrow legal definition of harassment that blurs its particulars:
The purported confusion among American workers about what constitutes sexual harassment is not wholly supported by studies conducted by social scientists. On the contrary, in spite of the popular myth that people do not know how to behave in the workplace, there is a growing consensus among American workers about what constitutes sexual harassment.... Sexual harassment persists as a form of discriminatory workplace conduct in our society. The myth of ambiguity allows perpetrators of sexual harassment, complicit with courts, to excuse their behavior because they allegedly do not know what constitutes sexual harassment.
Similarly, Sarokin, Babin, and Goddard acknowledge that affirmative action programs have succeeded in their primary goal to achieve diversity, but subtle forms of discrimination survive:
To a large extent the need for affirmative action has diminished. The laws of discrimination are being enforced. Employers have become more aware and more sensitive. Training and education are directed at avoiding discrimination and harassment in the workplace. Progress has been made in hiring and promotions. But with that new awareness comes discrimination which is more sophisticated. The former, blatant discrimination has been replaced by a more subtle form which is more difficult to prove.
Empirical data suggest qualification of claims like Gordon's, that anti-discrimination legislation and affirmative action have "solved the problem" of gender bias in the workplace. A review of twenty years of sex and age discrimination case-outcomes shows that the balance has not tipped in the favor of women plaintiffs. When mid-life women brought their cases to trial, their chances of a favorable judgment were only 41% between 1975 and 1995, and the employers prevailed in 59% of cases.
From Proving Subtle Discrimination to Describing an Invisible Climate of Bias
Beiner discusses the disjunction between a victim's definition of conduct and the court's need for a better definition of behavior which rises to that level of "severe or pervasive"ì and which thus constitutes "an objectively hostile or abusive work environment, an environment that a reasonable person would find hostile or abusive."
In arguing that courts need to be better informed by social science explanations of what constitutes perception of harassment, Beiner points to some factors that vary when scientists construct their studies: the totality of the circumstances experienced by the victim, the pervasive effect of less severe but repetitive behaviors, the context in which harassing behaviors occur, behaviors which in themselves are not actionable such as a leer, as well as the age, educational background, and status of the victim, and her reliance on the job for food, clothing, or shelter as opposed to her ability to change jobs. She categorizes as "ambiguous behaviors" sexual remarks, gestures, and sexist jokes.
Forms of Gender Bias in the Work Environment
However, to resist bias, women cannot become preoccupied by identifying behaviors that count as specific acts and general forms of inter-personal sexual harassment. Stone turns attention to the psychological climate of the changing workplace in which women are not necessarily advantaged by a less hierarchical structure.Đ She describes several aspects of the work environment which negatively impact women: training programs, invisible authority of non-hierarchical structures, and peer-group cliques.
Data from employer-sponsored training programs, offered to employees to manage their own careers and develop new skills, show that many women cannot participate if the programs are offered after hours because of family obligations. Gender seems correlated to program access even for programs offered during the workday. Women, for whatever reason, are not receiving equal access to such training. Because authority in the workplace has become less hierarchical, everyone makes lateral movements, "but some move in circles while others spiral to the top." Since the lines of authority and power have become invisible, it is more difficult "to know to whom to make appeals, with whom to lodge complaints, or how to bring about change."
When a firm delegates decisions to peers, those very networks of "old crowd" male employees can perpetuate discrimination because their culture can segregate women and minorities from learning the tricks of the trade, acquiring necessary information and building a record of teamwork. Peer-group cliques of mostly men can use "tools of ostracism, belittlement, verbal harassment, innuendo, nefarious gossip and shunning-tools that are difficult to identify or remedy."
Stone concludes that that focus must be brought to behaviors that "reach beyond existing discrimination law and address heretofore unacknowledged forms of workplace injustice" because these "new types of employment discrimination... are not easily treated with the existing Title VII framework."
Because authority and power are often vested in peer-networks of co-workers, those work groups themselves often become sites of bias and harassment.
Conclusion
Responsibility for ending bias against women in the workplace cannot be assigned to individual male supervisors and managers alone. Bias permeates the workplace in subtle, typically ambiguous forms at the peer level of work-groups and training programs which include both men and women. Thus, analysis of gender bias must be brought to the culture in which men and women work together. Patterns of inclusion, exclusion, and non-verbal signals which reinforce the approval or disapproval given to women's words and women's performance should be included.
"Hostile work environment" may not take the form of offensive sexual jokes, posting of Playboy centerfolds, or suggestive nicknames for female workers. Women can take note of other forms of "hostility" as a culture of fear against bringing complaints, and an assertion of social codes which subordinate women to men in the workplace, according to traditional codes which subordinate them to men within the family.
A climate in which women are intimidated about bringing a complaint should be acknowledged as a very real factor in the workplace. A recent Supreme Court case, Burlington Northern & Santa Fe Railway Company v. White, decided in June, 2006, defines an act of retaliation in the workplace as any "materially adverse" employment action that "might have dissuaded a reasonable worker" from complaining about discrimination. A woman who files a complaint for sexual harassment now has a more clearly defined standard for claiming her employer retaliated after she complained.
By extension, she now has a clearer basis for naming "materially adverse" actions, not only as the extreme measure of actual termination, but as an "unfavorable annual evaluation, an unwelcome schedule change, or other action well short of losing a job."
In California, human resource directors should cue presenters of Mandatory Sexual Harassment Training sessions to include not only explicit forms of sexual harassment but also the ambiguous, subtle forms, as well as materially adverse employment actions which arise from the pervasive, invisible culture of gender bias.
Notes
1. Deborah L. Rhode, "The Profession and the Public Interest," 54 Stan. L. Rev. 1501 (2002).
2. Robert W. Gordon, "Portrait of a Profession in Crisis," 54 Stan. L. Rev. 1427, 1444 (2002).
3. Id. at 1444.
4. Theresa M. Beiner, "Let the Jury Decide: The Gap Between What Judges and Reasonable People Believe is Sexually Harassing," 75 South. Calif. L. Rev. 791, 845-46 (2002).
5. H.L. Sarokin, J.K. Babin, A.H. Goddard, "Has Affirmative Action Been Negated? A Closer Look at Public Employment," 37 San Diego L. Rev. 575, 633 (2000).
6."Employment Discrimination against Midlife and Older Women" Vol. I: How Courts Treat Sex-and-Age Discrimination Cases: A Report by the Women's Legal Defense Fund (1996): 23.
7. Meritor Sav. Bank, FSB v. Vinson, 477 u.s. 57, 67-69 (1986).
8. Beiner at 798.
9. Id. at 824.
10. Id. at 823.
11. Id. at 828.
12 Id. at 829.
13. Id. at 825.
14. Id. at 834.
15. Katherine V.W. Stone, "The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law," 48 UCLA. L. Rev., 519 (2001).
16. Id. at 606.
17. Id. at 606.
18. Id. at 607.
19. Id. at 607-08.
20. Id. at 610-11.
21. Linda Greenhouse, "Supreme Court Gives Employees Broader Protection Against Retaliation in Workplace," New York Times (June 23, 2006) A24.
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