Confronting Sexual Harassment

The Law and Politics of Everyday Life

Anna-Maria Marshall

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351949637
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Examining the relationship between law and social change in the context of employees' everyday problems with sexual harassment, this volume elaborates a framework for studying the role of law in everyday acts of resistance - what the author calls the legal consciousness of injustice. The framework situates the analysis in the context of a specific social problem and its related legal domain. It de-centres the law by accounting for the way that social movements, counter-movements, policy makers and powerful institutions frame the debate surrounding the social problem. Drawing on frame analysis developed in social movement studies, this aspect of the approach specifically incorporates other schema and shows how law supports both oppositional and dominant interpretations of experience. Following the stages of a dispute, the framework then examines the way that people use frames to make sense of their experiences.

1 The Legal Consciousness of Injustice: A Theoretical Framework

Inequality structures everyday life. Systems of stratification based on class, race, gender, sexual orientation, ethnicity, for example, shape such crucial aspects of daily life as the schools we attend, the jobs we hold, the neighborhoods we live in and the health care we receive. For the most part, our daily lives and routines are unquestioned and unexamined. Patterned by broad social forces, these routines seem inevitable and natural. Thus, inequality in life circumstances becomes an unfortunate but widely accepted aspect of social life.

Yet people do not always accept the oppressive conditions associated with inequality. At particular historical moments, challenges emerge. Indeed, these challenges are often mounted in public policy arenas, such as courts or legislatures. The civil rights movement of the 1950s combined a variety of strategies – direct action, legislative lobbying, coordinated litigation campaigns – all directed at developing policies that dismantled legalized segregation and other systematic inequalities (Kluger 1975; Tushnet 1987). Following in the path of the civil rights movement, women’s organizations pursued similar strategies to promote women’s equality in education and employment and to protect them from violence (Costain 1992). More recently, organizations advocating for the rights of gay, lesbian, bisexual and transgendered people are active in courts and legislatures at both the federal and state level, seeking protection from hate crime and support for their rights to form families (D’Emilio, Turner, and Vaid 2000; Cain 2000). These political and legal developments reflect a common strategy – one assuming that social change is ratified by changes to law and public policy.

Resistance is not confined to the public policy arena, but can also occur in everyday life (de Certeau 1984; Ewick and Silbey 1998; Scott 1985, 1990). “New” social movements, in particular, politicize the personal and explicitly encourage everyday resistance.

Movements focusing on gay rights or abortion, health movements such as … anti-smoking, … and the women’s movement all include efforts to change sexual and bodily behavior. They extend into areas of daily life: what we eat, wear and enjoy; how we make love, cope with personal problems, or plan and shun careers. (Johnston, Larana, and Gusfield 1994, p. 8)

Based on new, oppositional interpretations of their experiences, people alter their expectations, their desires, their needs, their grievances – the very meaning of their daily lives. As people are emboldened to make demands for better treatment, those demands can be opposed by spouses, children, neighbors, co-workers, teachers – all those with whom they interact in their normal routines. Thus, challenging inequality can create conflict in everyday life, and these conflicts become the seeds of social change.

Law provides one arena for these conflicts. Law helps shape the meaning that people make of their lives – the way that they understand the living conditions created by structural inequality (Engel and Munger 2003; Ewick and Silbey 1998; Merry 1990; Sarat and Kearns 1993; Nielsen 2000). People may see in law and the legal system a set of traps that support systems of oppression, but they may also find in law a set of tools to resist such oppression (Merry 1995; McCann 1994; Thompson 1975). But law alone does not determine people’s interpretations of their experiences. Rather, it is one of many frames and schemas – both hegemonic and subversive – that promote or discourage the everyday conflicts that constitute social change. So when African-Americans sought equal treatment by “trespassing” at lunch counters (Morris 1984), when the collective abortion service, Jane, helped women in Chicago obtain safe abortions before legalization (King 1993), when battered women’s shelters encouraged prosecutors to pursue criminal charges against batterers (Schneider 1986), law was both guiding and constraining those practices of resistance. In these cases, law supported oppressive regimes at the same time that it represented the hopes and aspirations of liberation, but it was always part of a larger social struggle that touched everyday lives.

This book develops a theoretical framework for analyzing the role of law in everyday resistance to inequality – what I call the legal consciousness of injustice. It represents an effort to understand the relationship between law and social change from the bottom up, where changing social, political, and cultural values create conflict in everyday life. Law is important in this analysis, but so are political debates and organizational practices that likewise shape disputes. I rely on this framework to conduct an empirical study of sexual harassment in a particular workplace. Specifically, I study the way that women confront their experiences with unwanted sexual attention at work, specifically how they interpret those experiences and how they respond. I argue that the meaning that women assign to these experiences reflects not just legal rules but broader political and social debates about equality and the role of women in the workplace. Women rely on these meanings to decide whether to complain or to ignore the behavior or even to participate in sexual joking and banter with co-workers. And the bundle of these women’s decisions – and management responses – shape the meaning of sexual harassment laws in particular workplaces.

Law and Social Change: Top-Down or Bottom-Up

In spite of considerable skepticism, the “myth of rights” has been politically potent in social movement challenges to inequality over the past fifty years (Scheingold 1974). In the 1950s and 1960s, civil rights activists went to court to challenge state-mandated segregation. With other political institutions inaccessible, the courts seemed to be the most likely arena for obtaining relief (Tushnet 1987; Vose 1967). Moreover, the language of rights was symbolically powerful, appealing to American audiences who believed, in the abstract, in such values as freedom and equality (Polletta 2000; Williams and Williams 1995; Snow and Benford 1992). Thus, the National Association for the Advancement of Colored People (NAACP) and other civil rights attorneys made the law and litigation appear to be potent tools in liberation movements for oppressed minorities in the United States (Kluger 1975; Tushnet 1987; Vose 1967). Legal strategies continue to be popular among social movement organizations representing oppressed minorities, including gays and lesbians, women, and racial and ethnic groups (Eskridge 2002; Cain 2000).

The judicial impact study challenged this political faith in the courts. Designed to measure the success of these legal campaigns, the studies showed that impact litigation could not dismantle structural inequality and that, in some situations, litigation campaigns could actually be detrimental to a social movement’s mobilization efforts. Using similar methodologies, the authors examined social conditions before a judicial decision, often from the Supreme Court, was handed down. Their data included survey results, as well as case studies and ethnographies of institutions and communities (Dolbeare and Hammond 1971, Muir 1973, Rosenberg 1991, Handler 1978, Tushnet 1987). Then, in the aftermath of the court’s decision, the studies examined the responses of various groups of actors, such as lower courts, the actors and institutions charged with enforcing the decision, the intended beneficiaries of the decision, as well as the public itself. They also consulted the baseline measures of social conditions to detect whether the decision produced a change (Canon and Johnson 1999).

In The Hollow Hope (1991), Gerald Rosenberg offered a bleak assessment of impact litigation. Rosenberg surveyed a variety of Supreme Court decisions in politically controversial cases,¹ including Brown v. Board of Education. He argued that the Supreme Court had little effect on Southern state legislatures that engaged in serious delay tactics to avoid complying with the Brown decision. He also argued that while Brown itself captured a great deal of media attention, it did not seriously affect media attention to the issue of desegregation over time. Finally, he showed that many children still attended segregated schools, decades later. Rosenberg concluded, based on Brown and several other constitutional cases, that the Supreme Court could not bring about social change on its own. To have any effect at all, the Court needed the cooperation of other powerful institutional actors, such as Congress or state legislatures. Although his methods have been criticized,² Rosenberg’s general conclusions about the limited capacity of the courts to bring about social change echo the skepticism of an earlier generation of judicial impact studies (Tushnet 1987; Handler 1978; Scheingold 1974; Muir 1973; Canon and Johnson 1999).

Rosenberg’s Hollow Hope and other judicial impact studies have been criticized as being overly attentive to the courts in trying to assess the relationship between law and social change. Such studies begin at the top – the Supreme Court or other judicial decision-makers. Law is conceptualized rather narrowly as a product of official behavior, such as judicial decisions. Judges are the critical legal actors in this research; it is their decisions that theoretically produce the social change, and change is assessed against the goals of the judicial decision. This approach, however, ignores the more symbolic aspects of law, where legal cases place pressing issues on the political agenda and garner sympathetic publicity for social movements (McCann 1992, Feeley 1992). In this broader view, law is not simply a collection of judicial pronouncements that trickle down from the courts, but rather constitutes a powerful set of symbolic resources and everyday practices that shape politics, culture and social relations.

By contrast, dispute-centered approaches to studying the legal struggles surrounding inequality are more attentive to the social struggle itself before it ever reaches a courtroom (McCann 1992). Rather than judicial behavior, such studies focus on non-judicial actors – particularly social movement organizations and activists – that frame their grievances and demands in legal terms. Law is but one arena of conflict, although it is an important one because by shaping opportunities, constraints, and the meaning of experience, law constitutes ongoing social relations (McCann 1994, Ewick and Silbey 1998). In the midst of social, political, and cultural conflict, legal action can have “implications … for issue agenda setting, movement building, negotiating and lobbying efforts, remedial program development, and even personal transformation” (McCann 1992, p. 735).

The first studies in this tradition analyzed social movements and their use of legal strategies, concluding that such strategies were of limited use in bringing about social change. First, litigation can oversimplify the complex social processes that constitute inequality and injustice by flattening structural problems into isolated disputes between parties that come to court in a lawsuit (Scheingold 1974; Handler 1978). In a legal proceeding, the dispute never turns on a vaguely identified social ill, such as poverty, unemployment, or the lack of adequate health care. Rather, a lawsuit must specify a tangible, legally-recognized harm, where the plaintiff has suffered some particular injury that violates a particular right or legal entitlement. Lawsuits also require identifiable defendants – some actor who has caused the injury and who may be held accountable for it. It is impossible to sue “society” or “an inadequate educational system” for one’s grievances. In addition, this form of policy-making depends on judges who, by training and expertise, are rarely reliably on the side of oppressed groups (Scheingold 1974, Handler 1978, Rosenberg 1991).

Second, this reduction of structural social problems into simplistic disputes makes it less likely that courts can alleviate serious inequalities. Not every injury has a legal remedy, and even when available, those remedies are very limited. Courts mostly provide monetary compensation or issue injunctions, neither of which may be suitable to redress the injuries resulting from widespread inequalities. On occasion, courts provide extensive injunctive relief or administer complex consent decrees that require sweeping reforms in an institution or organization (Handler 1978). Yet these remedies can also be ineffectual because they are difficult to enforce. Judicial resources for oversight are limited, and social movement organizations may not have the capacity for monitoring compliance to make such remedies effective. Thus, judicial remedies are ill-equipped to make the kind of structural social change sought by many social movements (Handler 1978; Scheingold 1974).

Finally, litigation strategies are dominated by lawyers who may be elevated to inordinately powerful positions in social movements, thus displacing the grassroots in favor of elites and making political mobilization more difficult (Scheingold 1974). The language and procedures of a courtroom are fraught with jargon and can be inaccessible to members of oppressed groups who make up the movement. Moreover, the publicity and disruption that sometimes accompany social movement strategies can be inconsistent with a lawyer’s desire to present a more conservative and less challenging picture to a judge. Lawyers themselves may be more interested in winning a particular case than in achieving the movement’s broader goals. Thus, lawyers can occupy a troublesome role in movements, deflecting energy away from direct action and other strategies to less effective legal strategies (Scheingold 1974; McCann and Silverstein 1998).

However, paying attention to the struggle rather than judicial opinions reveals that litigation is one of many strategies that social movements use to challenge inequitable social conditions. This perspective places law in a broader context of other movement tactics, such as direct action, boycotts, lobbying – a perspective that sometimes illustrates how ineffective litigation is compared to these other methods (McCann and Silverstein 1998). A struggle-centered perspective also demonstrates the many uses of litigation in a challenge to inequality. For example, litigation is often used as a tool to bring public attention to a pressing social problem and to obtain concessions in negotiations (Olson 1984, McCann 1994, Silverstein 1996). And when a lawsuit is successful, it provides evidence that the system is vulnerable and subject to wider reform. When publicized among potential movement members, this widening of “political opportunities” becomes a way to empower and mobilize more activists to participate in other forms of action (McCann 1994, McAdam 1982).

But law also plays a more formative role in the development of social movements because legal concepts, particularly rights, are so important in the shape of movement grievances, demands, and collective identity. Many scholars have demonstrated the significance of rights in modern social movements, including those for civil rights (Polletta 2000, Morris 1984), comparable worth (McCann 1994), animal rights (Silverstein 1996), and gay and lesbian rights (Goldberg-Hiller 2002). Grounded in individualistic and liberal values, rights are well-respected in American culture and therefore constitute an appealing frame to garner sympathy from adherents, the general public, and public officials. Moreover, the invocation of rights can be empowering for members of oppressed minorities who use rights to make a claim for citizenship (MacKinnon 1979, Polletta 2000, Schneider 1986). According to Elizabeth Schneider, “[T]he assertion or ‘experience’ of rights can express political vision, affirm a group’s humanity, … and assist in the collective political development of a social or political movement, particularly at its early stages” (Schneider 1986, p. 590).

By emphasizing social conflict over judicial decisions, the dispute-centered approach provides a complex picture of the role of law in bringing about social change. But studies of social movements that deploy legal norms and tactics are not necessarily at the “bottom” of a dispute. Social movement organizations are representing and formulating grievances and demands based on the experiences of their members, adherents, and other constituencies. As organizations and policy actors, they rarely confront the kinds of conflict they construct. While these studies analyze the rights consciousness of individual activists, those activists are already immersed in movement ideology, so it is not entirely surprising that they adopt movement frames in their daily encounters with inequality. Adopting a “bottom-up” perspective, then, requires an analysis of the way that ordinary people navigate the everyday conflicts that stem from conditions of inequality and oppression. Do social movement messages reach ordinary people? Or are people more attentive to messages from authority figures and counter-movements protecting the status quo? What role does law play in the many frames that are routinely available for interpreting daily manifestations of inequality? To build a framework that answers these questions, I turn to an analysis of law in everyday life that shows how people make sense of their quotidian encounters with inequality.

Getting to the Bottom of Disputes: The Study of Law in Everyday Life

Law and society research has always taken the ordinary person seriously as a legal actor (Jacob 1969; Zemans 1983; Felstiner, Abel and Sarat 1980–81; Sarat and Kearns 1993; Ewick and Silbey 1998; Marshall and Barclay 2003). Two prevailing law and society traditions – legal mobilization and legal consciousness – examine the role of law in everyday life. Defined as “the process by which legal norms are invoked to regulate behavior” (Lempert 1976, p. 173, quoted in Zemans 1983, p. 693), legal mobilization has been traditionally studied as the mechanism individuals use to enforce their legal rights. Adopting an instrumental perspective, this approach portrays law as a tool to resolve conflict when it arises. More recent work on legal consciousness has focused on the constitutive nature of law; that is, the way that law shapes how people make sense of their experiences (Sarat and Kearns 1993). In these studies, law does not simply resolve conflict – although that is always a possibility. Rather, law may be responsible for giving rise to the conflict in the first place. In this section, I describe these two different approaches to studying law in everyday life.

Legal Mobilization and the Disputing Process

Based in dispute-processing analysis, legal mobilization research has focused on how individuals navigate conflict in their daily lives and how they use law as a tool to resolve such conflict (Zemans 1983; Barclay 1999). In some of these early studies, legal mobilization was modeled as a form of political participation where ordinary people placed demands on state institutions for rights and privileges promised them by law (Zemans 1983; Jacob 1969). Even when simply invoking the law to resolve conflicts among private individuals, such legal mobilization involved bringing public norms to bear on private disputes, thus re-creating the law in a way that had broader significance for the next case (Zemans 1983). Compared to voting or joining a political party, this form of participation was a more direct form of democracy, although not necessarily egalitarian, since courts and other legal institutions are usually restricted to those who have access to material resources (Zemans 1983; Lawrence 1991a, 1991b). Still, in these early studies, legal mobilization was depicted as an important aspect of a democratic society.

Based largely on survey research, the studies in legal mobilization examined the everyday problems of ordinary people – coping with too much debt, seeking compensation for personal injurie...

Table of contents

• Cover Page
• Confronting Sexual Harassment
• Copyright Page
• Contents
• List of Tables
• Acknowledgements
• 1 The Legal Consciousness of Injustice: A Theoretical Framework
• 2 The Legal Environment of Sexual Harassment: Law, Policies, and the Women Who Use Them
• 3 Equality, Sex, and Productivity: The Competitive Framing Environment of Sexual Harassment
• 4 The Meaning of Equality: Perceiving the Harm of Sexual Harassment
• 5 ‘I Guess That Was Sexual Harassment’: Naming Sexual Harassment
• 6 Idle Rights: Employee Complaints and Management Responses
• 7 Sexual Harassment, Law, and Social Change: A View from the Ground
• Appendix A: Interview Schedule
• Appendix B: Questionnaire
• Appendix C: Measures for Gender Consciousness
• References
• Index