The Sanitized Workplace

134 Pages Posted: 9 Apr 2003 Last revised: 30 Oct 2007


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.

Suggested Citation

Schultz, Vicki, The Sanitized Workplace. 112 Yale L.J. 2061 (2003). Available at SSRN:

Vicki Schultz (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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