Documenting What Really Goes on in the Workplace

Emily A. Leskinen, Lilia M. Cortina, and Dana B. Kabat, Gender Harassment: Broadening our Understanding of Sex-Based Harassment at Work, 35 Law & Hum. Behav. 25 (2011).

Scholars who opine on issues of workplace discrimination know that the lifeblood of their scholarship is the work of those who conduct studies that capture and document the phenomena about which they write.  Those researchers who conduct such studies with an informed eye toward the law are thus invaluable to employment discrimination scholars, and it was with great interest that I read Gender Harassment: Broadening our Understanding of Sex-Based Harassment at Work by Emily A. Leskinen, Lilia M. Cortina, and Dana B. Kabat, 35 Law & Hum. Behav. 25 (2011).  The study, in the authors’ own words, seeks to “challenge[] the common legal and organizational practice of privileging sexual advance forms of sex-based harassment, while neglecting gender harassment.”

Citing to eminent scholars who have contended that gender harassment should be subsumed within the broader category of cognizable sexual harassment, the authors explain that gender harassment has been defined as “a form of hostile environment harassment that appears to be motivated by hostility toward individuals who violate gender ideals rather than by desire for those who meet them.”  Simply put, it is “hostility that is devoid of sexual interest.”  Proffering some much needed empirical support for the notion that gender harassment is at least as deleterious, if not more so, than its actionable counterpart, the authors advance ideas that may not have entered cultural consciousness, but that need to be properly understood by legislators, judges, advocates, scholars, and all others who shape and affect the law of workplace discrimination.  So, for example, the authors’ research enables them to posit that sexual harassment, in what they call “traditionally male domains,” mostly consists of gender harassment absent any sexual advances.  This compelling finding necessitates a shift in the popular conception of what sex-based harassment in the workplace truly looks like.  Moreover, the authors’ research enables them to posit that the negative personal and professional impact of gender harassment in the workplace on women is immense.

The article begins with a thorough and thoughtful recitation of the relevant types of harassing behavior and the relevant legal history of and perspectives on that which is cognizable harassment.  It concludes that while not formally precluded from inclusion in the category of actionable sexual harassment, gender harassment has been “routinely . . . neglected by the law,” with many federal judges averse or even hostile to the idea that “anti-female animus,” unacted upon, was ever intended by lawmakers to run afoul of Title VII. It discusses the failure of researchers and the subjects of their studies alike to recognize gender harassment as sexual harassment or as being as pernicious as sexual harassment.  It explores the ways in which and the reasons why gender harassment is corrosive to so many women’s sense of wellbeing in the workplace, observing that it transmits a message to women “that they are inadequate, out of place, and unable to perform at the level of men.”

With all of this in mind, the researchers developed two hypotheses: 1) that gender harassment, absent unwanted sexual overtures, would be the most commonly experienced type of sex-based harassment experienced by women; and 2) that even when women experienced gender harassment without a trace of sex-based harassment, they would report negative professional and personal results.  Moreover, the researchers carefully selected two traditionally male-dominated workplaces as the backdrop for their studies: the U.S. military and federal legal practice.  Their findings were compelling: the most common type of harassment experienced by women in the military and in federal legal practice was, in fact, gender harassment without sexual coercion or attention.  As the researchers put it, gender harassment “is not about misguided attempts to draw women into sexual relationships; quite the contrary, it rejects women and attempts to drive them out of jobs . . . .”  Further, gender harassment absent sexual behavior was, in fact, shown to have numerous negative outcomes, including, among others, lower levels of performance at work, psychological well-being, and professional and personal satisfaction.

In light of Title VII’s broad remedial goals, the work of those like Leskinen, Cortina, and Kabat is essential to advancing the jurisprudence that will permit the law to comport with the realities of the modern American workplace.  There should be much more work like theirs to support and further thought and scholarship in this field.