Court OK's "Equal Opportunity" Sexual Harassment

It seems that while we were sleeping, or at least not paying much attention to the issue of sexual harassment in the wake of Anita Hill, the Supreme Court began to slowly redefine the legal interpretation of sexual harassment. On October 2, 2000, the Court let stand a decision that created a loophole for “bisexual” or “equal opportunity” harassers. In explaining its position, the Court made it clear that it is only the “discrimination,” not the “harassment” or the “sexual” that is covered by Title VII of the federal Civil Rights Act. Because the alleged offender harassed both a man and a woman, the Court could not find the behavior in question to be discriminating.

Ironically, the “equal opportunity” harasser loophole came out of a landmark Supreme Court decision that expanded the interpretation of Title VII to include same-sex sexual harassment. At the same time that the Court began opening the door to issues of same-sex sexual harassment, they began closing the door to traditional understandings of sexual harassment. They did this by shifting the focus from “What is the effect of the harassment?” meaning “Did the behavior create a hostile environment?” to “What was the motivation of the alleged harasser?”

With its narrow focus on discrimination, the Court has misinterpreted the meaning and experience of sexual harassment. To get back to basics, sexual harassment can be defined as words, gestures, and bodily actions used to insult, humiliate, degrade, or dehumanize another. The list of offending behaviors and comments includes but is not limited to: wolf whistles; unwelcome “endearments” such as “honey,” “sweetheart,” and “babe;” pressure for dates or sexual encounters, staring at a woman’s chest or a man’s crotch; homophobic comments such “faggot,” “dyke,” “homo,” “lessie,” or other anti-gay/lesbian/bisexual/transgendered (anti-glbt) comments; sexist or homophobic jokes; sexual innuendo; obscene phone calls; lewd and threatening letters; stalking; and sexual assault. How the comment or behavior feels to the recipient is the determining factor. If something feels offensive to the recipient, then it is offensive. Context is important. Being called “honey” by a loved one, for example, may make one feel loved, whereas being called “honey” by a stranger or authority figure is unwanted and may make one feel put down or humiliated.

In their attachment to the concept of discrimination, the members of the Supreme Court also completely overlooked the dynamics of harassment and the connection between harassment and discrimination. Sexual harassment is about power and control, to put it simply. The reason that women have traditionally been the targets of sexual harassment relates to the fact that women have traditionally held less political, social, economic and physical power in society.

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