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Abstract:
In this symposium essay, Professor Schultz argues against the notion that the current rethinking of sexual harassment law represents a backlash against feminist thought. To the contrary, she contends, recent trends linked to the current conception of sexual harassment should be cause for concern among feminist theorists and activists. Sexual harassment law has led courts and commentators to focus obsessively on sexual conduct, while deflecting attention from more common, non-sexual forms of discrimination and abuse. In addition, the emphasis on sexual conduct encourages people to think of harassment as a form of behavioral misconduct in which bad actors engage, rather than as a set of social relations embedded in a larger context of structural workplace inequality. On the one hand, the sexual focus invites inquiry into the sexual history and self-presentation of people who are harassed. On the other hand, it facilitates harassment complaints against people who are viewed as sexually deviant. Feminists need a new model of harassment that avoids these pernicious effects. The current model treats harassment as a way for men to use work to appropriate sex from women. But it is more helpful to see harassment as a way for a group to use sex - and other tools of exclusion - to appropriate work for themselves. In other words, harassment is not so much about securing sex as it is about gendering work.

Abstract:
This paper argues that a reduced workweek offers a way to alleviate work-family conflict without exacerbating the sex-based division of labor in paid work and unpaid family work. We distinguish our position from two other approaches: (1) one that compensates unpaid family work directly (through such policies as traditional welfare provision, or alimony), policies we argue can discourage women from labor force attachment and contribute to sex-stereotyping and sex-segregated employment; and (2) an approach that spurs employers to accommodate workers' family responsibilities (through such policies as part-time work for parents), policies workers often avoid out of a well founded fear that they will be penalized unless all workers take advantage of them.

Although there is room for supplemental policies such as paid leave, we argue that it is only by reducing the long hours required for many higher-paying full-time jobs - and increasing the hours associated with many lower-paying non-standard jobs - that post-industrial societies can actually create opportunities for both men and women to participate fully in paid employment and parenting. Requiring employers to pay premium wages or compensatory time, plus proportionally additional benefits, to people who work more than 30 to 35 hours a week could help eliminate current legal incentives for employers to overwork full-time employees, who are disproportionately male. Similarly, requiring employers to pay equal wages and proportional benefits to people who work less than 30 to 35 hours a week could eliminate the incentive for employers to create the part-time and contingent jobs in which women are disproportionately concentrated. Other policies, such as an expanded earned-income tax credit, could help men and women converge toward a more moderate workweek norm.

Drawing on experience in Europe and the United States, we evaluate the likely effectiveness of various regulatory approaches. Although the matter is complex, the evidence suggests that it is possible to design policy approaches that could help achieve a more moderate workweek in the U.S. We conclude that, even though doing so would alleviate gender inequalities around paid work and unpaid family work, the current political and economic climate is not conducive to achieving such change. We call upon scholars, policymakers, and activists to study and press this issue further.

Abstract:
This piece was first presented as Professor Schultz's comments on a panel on prostitution held at a conference at Yale Law School entitled "Sex for Sale." Commenting and drawing on papers presented by Kathleen A. Bergin, Melissa Farley, Norma Hotaling, Ann C. McGinley, and Rhacel Salazar Parrenas, the piece considers whether and when it is appropriate to refer to such sex as "work."

Abstract:
This panel discussion features Law Professors Vicki Schultz, Tanya Hernandez, and David Yamada, Sociology Professor Abigail Saguy and Yale Law School graduate Gabrielle Friedman discussing sexual harassment law in global, comparative terms. Different conceptions of harassment - including sexual advances, gender harassment, racial intimidation, mobbing, bullying and ostracization - are elaborated in the context of discussing how harassment is understood and deal with in the United States, Latin America, Germany, France, and continentual Europe, and Northern Europe, Canada and the United Kingdom. This work should be of interest to scholars of discrimination and harassment and comparative law.

Abstract:
This article, given as the Fourth Annual Ruth Bader Ginsburg Lecture, analyzes the historical development of sexual harassment law as it has played out in U. S. courts and companies over the past thirty years. I document the simultaneous overinclusiveness and underinclusiveness of the traditional approach, which defines sexual harassment as unwelcome sexual advances. I show the need for a more expansive definition of harassment which turns the focus away from sexuality and places it on the broader work structures and social relations thorugh which gender inequality is produced. I then explore the implications of this change in approach for legal reform and legal scholarship.

sex discrimination, sexual harassment, discrimination, gender, employment

Abstract:
This Article documents and criticizes the prevailing paradigm for conceptualizing sex-based hostile work environment harassment. The prevailing paradigm understands harassment as an expression of men's sexual desire for, or domination of, women. Within the paradigm, male-female sexual advances are the core forms of harassment that can constitute a hostile work environment.

The paper demonstrates the limitations of this paradigm. Most importantly, the sexual desire-dominance paradigm is underinclusive. The focus on sexual abuse omits, and even obscures, many of the most debilitating forms of harassment experienced by women at work. Much of the conduct that makes workplaces hostile and alienating to women is difficult to construe as sexual in design; many men are also harmed by sex based harassment that cannot be easily understood within a sexualized paradigm. In addition, the prevailing paradigm may be overinclusive. By emphasizing sexual advances as the core harassment, the paradigm may subtly encourage a paternalism that seeks to protect women's sexual sensibilities rather than to promote their empowerment as workers. This paternalism may inspire companies to prohibit some forms of sex talk that do not contribute to gender hierarchy at work. These problems point to a need for a new account of hostile work environment harassment that highlights its relationship to broader forms of gender stratification of work.

This piece proposes a new account. It advances an account of sex harassment that emphasizes its role in reproducing work and work competence along gendered lines. In this account, harassment is not driven by a need for sexual domination, but by some men's desire to retain favored lines of work for themselves. Hostile work environment harassment serves a gender-guarding, competence- undermining function. By marking women as incompetent to perform the most highly rewarded forms of work, harassment policies the boundaries of such work and protects its idealized masculine image. By maintaining their jobs as bastions of masculine competence, men protect their material advantage and also preserve their sense of identity (even superiority) as men.

This new competence-centered account not only provides a more comprehensive basis for understanding the customary cases of male female harassment by supervisors and coworkers, it also opens up promising new approaches to less conventional forms of harassment, such as harassment of female supervisors by their male subordinates. It also provides a basis for prohibiting some, but not all, instances of men's harassment of other men at work. The conclusion describes concrete ways to implement the new account, at both a conceptual and doctrinal level.

sex harassment, sex discrimination, law

Abstract:
After a remarkably swift development in law and popular consciousness, sexual harassment has become the subject of controversy and debate. Sexual harassment is a legal concept that originated in the United States in the 1970s, when feminists succeeded in establishing it as a form of sex discrimination prohibited by national employment discrimination laws. The law defines harassment in largely sexual terms: Harassment consists of powerful men directing unwanted sexual advances toward less powerful women. By the late 1980s and early 1990s, this sexual view of harassment had been consolidated in law, media representation, social science research, organizational practice, and everyday thought. Recently, however, this view has come under challenge in the U.S. among civil libertarians, feminists, and queer theorists, who have voiced concerns that the emphasis on curbing sexual conduct may penalize less mainstream workers who are viewed as sexually deviant. Some feminists have also warned that the focus on sexuality neglects equally pernicious, non-sexual forms of gender-based harassment and discrimination designed to exclude and marginalize women (and many men) from work they want to pursue. Just at the time when the narrow sexual definition of harassment has come under criticism in the U.S., feminists and lawmakers in other countries have begun to borrow from this definition in formulating their own harassment policies. It is to be hoped that such new international efforts will pay heed to recent debates about workplace harassment in the U. S., and that U. S. reformers will seek to learn from broader traditions of employee protection upon which other nations draw.

sexual harassment, sex discrimination, law, feminist theory

Abstract:
This Article is a follow-up study to Professor Schultz's classic Article, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument (1990). We provide quantatitative and qualitative analyses of the universe of Title VII cases in which employers sought to defend allegations of race or sex discrimination by arguing that racial minorities or women lacked interest in the work at issue.

Several striking patterns emerge from the data. In race discrimination cases, the lower federal courts almost universally rejected the lack of interest defense before 1977, but after that judges began to accept the argument with some frequency - and more often than they did in sex discrimination cases. This change is not attributable to an increase in Republican judges. Both Republican and Democratic judges - and judges appointed by the most liberal Democratic Presidents - began to accept the lack of interest argument with some frequency after 1977. As other scholars have suggested, it appears that the late 1970s represented a turning point in antidiscrimination law: Our analysis suggests that the liberal consensus on race broke down, and the federal courts became more willing to accept neo-conservative explanations for racial segregation in employment.

In sex discrimination cases, by contrast, the courts' willingness to accept the lack of interest defense over time remained stable over time. Remarkably, however, courts treated the very same types of evidence differently in sex discrimination cases and race discrimination cases (at least when considered in the aggregate. For example, anecdotal evidence of discrimination significantly helped plaintiffs in sex discrimination cases, but not in race discrimination cases. Conversely, evidence of past discrimination by the employer helped plaintiffs in race discrimination cases, but not sex discrimination cases. These differences have become minimized after 1977, as the courts have begun to regard evidence produced by race discrimination plaintiffs with the same sort of skepticism with which they have historically regarded the evidence produced by sex discrimination plaintiffs.

Abstract:
Decades after Title VII prohibited sex discrimination in employment, most women continue to work in low-paying, low-status, traditionally female jobs. Employers have avoided liability for sex segregation by arguing that women lack interest in the more highly rewarded jobs done by men. This analysis of Title VII cases addressing the lack of interest argument shows that courts have failed to recognize the role of labor markets and firms in shaping women's work aspirations. Courts attribute sex segregation either to women's choice or to employer coercion. Both these explanations, however, incorrectly assume that women form stable preferences for jobs of a certain sex type before they ever begin working. Sociological research reveals that, like men, women develop their job preferences instead in response to changing structural and cultural features of work organizations. This Article draws on sociological research to propose a new way of understanding sex segregation that will enable courts and policymakers to fulfill title VII's unrealized promise to working women and men.

Abstract:
One of American society's most cherished beliefs is that the workplace is, or should be, asexual. This ethic is a legacy of our historic commitment to a conception of organizational rationality that treats sexuality as irrational and unproductive - a conception that had come under challenge until sexual harassment law gave it a new lease on life. Using a historical and sociological analysis, Professor Schultz shows that the law's focus on eliminating unwanted sexual conduct has provided added incentive and increased legitimacy for a managerial project of suppressing sexuality in the workplace. In the name of preventing sexual harassment, many employers are prohibiting potentially benign forms of sexual conduct, without attending to the larger structures of sex segregation and inequality in which genuine sex harassment flourishes. Employers have begun to impose strict disciplinary measures, costing many people their jobs or reputations and threatening employees' ability to form their own work cultures. Employers also increasingly ban or discourage employee romance, chilling intimacy and solidarity among workers of both a sexual and nonsexual variety. Evidence also suggests that employers sometimes use sexual harassment charges as a pretext for punishing employees for discriminatory or other suspect reasons, and employees are quicker to accuse coworkers of a different race, sexual orientation, or class whose sexuality threatens or offends them. Worst of all, employers are punishing sexual conduct without examining whether it is linked to sex discrimination in purpose or effect.

Contrary to the prevailing orthodoxy, Professor Schultz argues, workplace sexuality is not always discriminatory or disruptive: Sexual conduct takes its shape and meaning from the larger organizational context. Sociological research shows that women who work in well-integrated, egalitarian settings often participate and take pleasure in sexual interactions - probably because their numerical strength gives them the power to help shape sexual norms to their own liking. Thus, rather than encouraging employers to desexualize, we should encourage employers to desegregate. To create the incentive to do so, the law should make sex harassment easier to prove in significantly segregated and unequal work settings, and harder to prove in fully integrated and equal ones. At an even more basic level, legal actors and reformers must abandon the traditional definition of harassment as sexual conduct in favor of a broader focus on discriminatory conduct, because the emphasis on sexual conduct as harmful has given the law a cultural tilt that meshes well with the preexisting managerial view of sexuality and motivates managers to extend the law's reach within organizations. By the same token, the fact that managers can justify their actions with reference to a feminist-inspired body of law has facilitated their ability to implement zealous policies that extend the law. Thus, Professor Schultz's account of the development of sexual harassment law teaches that law makes a difference, but the difference it makes depends on how it interacts with larger institutional and cultural forces that will shape it in everyday life. Ultimately, she argues, those who seek to halt sanitization must offer a new vision in which sexuality can coexist with, and even enhance, gender equality and organizational rationality.

Abstract:
This Essay develops a vision of social justice grounded in the redistribution and restructuring of paid work. Work is a site of deep self-formation offering rich opportunities for human flourishing or devastation. In the United States, paid work has been central to citizenship, community, and personal identity: It is largely through the work we do for a living that most of us develop into the men and women we see ourselves (and others see us) as being. Although family-wage thinking has blinded society to the fact that this is true for women, research shows that paid work is vital to women (as it is to men); women who work for a living are better off than other women on a variety of dimensions, despite the fact that women still experience sex discrimination at work. Currently, however, transformations in the structure of work are increasing insecurity and deepening inequality for all but those at the top; many once privileged workers now face conditions akin to those that women and disadvantaged men have long confronted. These trends present deep challenges, but they also provide us with the opportunity to reshape social life by democratizing work. Schultz argues that employment discrimination alone is not capable of generating the needed reforms. Instead, we must remake our laws and culture to create a world in which everyone has the right to participate meaningfully in life-sustaining work, with the social support necessary to do so. She elaborates on the concept of a life's work to describe the central elements of a utopian vision in which women and men from all walks of life can work alongside each other as equals, pursuing common projects and forging connected lives. She calls upon feminists to forego a narrow identity politics in favor of joining with a broad array of other groups to fashion a social order in which work provides a foundation for egalitarian conceptions of citizenship and care. This approach demands that we consider seriously such measures as job creation programs, wage subsidies for workers, universal child care and health care programs, enhanced forms of employee representation, periodic sabbaticals and a reduced workweek for everyone.

Abstract:
This piece captures a provocative plenary discussion at a conference at the University of Texas Law School entitled, Subversive Legacies: Learning from History, Constructing the Future. Moderated by Professor Karen Engle, the panel includes set pieces and a robust discussion by leading legal scholars Elizabeth Schneider, Vicki Schultz, Nathaniel Berman, Adrienne Davis, and Janet Halley. The discussion is important to feminist theory, queer theory, critical race theory, and more!

Abstract:
This piece is a tribute to Professor James E. Jones, Jr., the Nathan P. Feinsinger Professor of Labor Law at the University of Wisconsin Law School and School of Industrial Relations. Professor Jones was one of the principal architects of the field of employment discrimination law. His career, spanning several decades of important developments in American labor and employment law and civil rights law, should be of great interest to legal historians and to everyone who wants to make a difference in the law.