Sexual Harassment Law in the United States and South Africa: Facilitating the Transition from Legal Standards to Social Norms

Abstract

This article deals with the effect of sexual harassment legislation on social change. The Article considers the development of sexual harassment law over the past several decades in the United States and the resulting backlash from that law, and then examines whether South Africa has and will experience a similar pattern of behavior in light of its unique social context. Using the American and South African experiences as a guide, the Article suggests ways to facilitate the transition from legal reform to actual change in social behavior, both for nations that will soon start along the path to outlawing harassment, and for nations that have recently done so.

In the United States five recent Supreme Court decisions about sexual harassment, as well as the extensive media coverage of those decisions, have heightened awareness of the problem, and large jury awards against American employers have scared companies into improving their policies and practices. In South Africa the 1998 Employment Equity Act - groundbreaking federal legislation prohibiting sexual harassment - comprehensively and ambitiously defines sexual harassment, recognizes its severity, and provides detailed procedures to deal with the problem and to prevent its recurrence. But in both countries progressive sexual harassment laws have been met with resistance and hostility by employers, law enforcement, and court officials.

This Article explores the causes of resistance to sexual harassment legislation by focusing on the political, economic, and cultural roadblocks to its full implementation. The Article identifies a variety of factors that are crucial in facilitating or retarding the effectiveness of anti-harassment objectives. It examines each of these factors in light of the American and South African experiences and goes on to demonstrate the effect each factor might have in societies with different cultural and historical starting points. Ultimately the Article concludes that sexism, racism, unequal access to the law, gender-specific cultural norms, and failure to make sexual harassment a priority, may continue to thwart the progress in the area of sexual harassment many countries have made in recent years.

Only law that has cultural legitimacy can be useful as an impetus for social change. A statute's legitimacy, and thus its capacity for social reform, depends in large part upon the eradication of misperceptions and stereotypes about the nature and harm of sexual harassment, and it depends upon the statute's integration into the legal and political discourse on both economic equality and violence against women.

Keywords: Sexual harassment, South Africa, Employment Equity Act, Title VII, Backlash, Gender Discrimination, Law and social change, Legal reform

JEL Classification: J71, K30, K31