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Tuesday, November 08, 2011

Where does it start? Where does it end?

This week, the American Association of University Women released information from a study that said that almost half of students in grades 7-12 have experienced sexual harassment in the last school year. Although more girls than boys reported being the target of sexual harassment at school, defined by the nonprofit research organization as “unwelcome sexual behavior that takes place in person or electronically,” boys and girls alike were identified across the board as harassers and victims. Rumors and jabs about students’ promiscuity and sexual orientation looked to be a significant part of the reported behavior, and victimized students reported deleterious tangible effects of the harassment that resulted in physical ailments and missed school days.

It is very interesting that most of the concentration of awareness, prevention efforts, and campaigns around schools has dealt primarily with the problem of bullying, when, in fact, the nature of the bullying has apparently been so overwhelmingly sexualized and gendered. This is especially ironic when one notes the fact that in the workplace, bullying is wholly lawful, while sexual harassment may result in corporate liability. Even more ironic and unfortunate, because sexual orientation is not a protected class status under federal law, many courts have rejected harassment claims made by homosexuals because although in many cases, they are being abused because of their failure to conform to gender norms, the courts see them as trying to advance claims that are ultimately not cognizable. Referring to someone’s sexual orientation (actual or perceived) as the reason for an adverse employment action is similarly seen as lawful under federal law. Moreover, in all but a few courts, “generalized vulgarity,” even that of a somewhat sexual nature, so long as it is not directly targeted at one sex, is seen as lawful as well.  

Yes; 56 percent of girls, as opposed to only 40 percent of boys reported being harassed in school, but these are still relatively large numbers that reveal the pervasiveness of sexualized verbal and physical abuse aimed at children of both sexes by children of both sexes. Has society become too preoccupied with the notion of students being bullied to notice how much of this bullying is sexualized?  Have those who set forth the law of the workplace been too preoccupied with the idea that actionable workplace abuse be “because of sex” as per title VII for lawmakers to pass the anti-bullying statutes that have come to their attention, but have not been passed, in 21 States since 2003? There are currently 16 anti-bullying bills active in 11 states, but proponents of the Healthy Workplace Bill, a model statute that has yet to be passed, cannot seem to convince lawmakers that employees’ dignity and sense of well-being at work need to be protected when threatened outside of a “because of sex” context, or some other context that would implicate currently cognizable harassment.

Of course, there is the argument that children are fragile and should be spared the indignities of sexual harassment and bullying, whereas adults in the workplace are just that—adults. When workplace bullying, even gendered workplace bullying comes up in my class, many of my students (male and female alike) take the position that people generally need to “toughen up” and “move along” if workplace bullying (even gendered bullying) becomes too much for them to bear. With so many people leaving school and “graduating” to the workplace each year, however, I wonder how much longer it will behoove us as a society to fail to call attention to both the sexual harassment that goes on in schools and the generalized bullying that goes on in the workplace. 

I have written and will continue to write about the connection between this attitude and the professional status gap that exists with respect to women and minorities, and I continue to think that this connection is worthy of consideration.  We can only look at skewed statistics as to who is assuming leadership roles in every arena from politics to law, to industry, to the academy, and tell ourselves that some people just “don’t have what it takes” or “can’t tough it out,” for so long before we stop and reconsider whether “what it takes” is aligned with the traits and values we want to see reflected at the top of organizations from Wall Street to Washington.

We might want to rethink everything we thought we had decided about what is going on and what is being permitted at every stage of the education, training, evaluation, and promotion of American employees and decide whether the cultures that we’ve permitted to take hold might be weeding out  hardworking and talented people and ultimately thwarting the goals of equal access, equal opportunity, and the eradication of discrimination held out by Title VII.

Posted by Kerri Stone on November 8, 2011 at 08:58 AM in Torts, Workplace Law | Permalink

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Comments

Glenn--I think your insights are dead on here. It is interesting to note that so much vulgarity--generalized vulgarity--is inherently "gendered' in that it refers to sex acts or the use of words that are often used to refer to females in one way or another. As the workplace becomes more sexualized and more vulgar, it starts to matter less and less whether anyone is directly being propositioned because people are made to feel marginilized/demeaned/undermined "because of" their sex.

Posted by: Kerri Stone | Nov 8, 2011 2:08:19 PM

Great post! I too was curious what one means by "gendered." As some interesting work on prison rape by men on men suggests, the mere fact that there are no women involved in an episode does not necessarily mean it is not gendered. Indeed, there are some who say same-sex prison rape is gender-subordinative in that the rape victim is made into a woman by the act, and the man who does the raping has his masculinity reinforced; the rape is power not sex line. When you say bullying is gendered, do you mean to make a similar argument, i.e., that even bullying of boys by other boys enacts a gender subordinative dynamic where the boy being bullied is feminized? Certainly this would be most obvious when gay taunts are used (although that of course itself collapses the gay-straight and the feminine-masculine continua).

Posted by: I. Glenn Cohen | Nov 8, 2011 1:30:49 PM

That's a good question. I am talking about when people in the workplace either 1) express negative attitudes about women generally; or 2) use vulgar language and protracted sexual metaphors that demean individuals even when they are not being referred to or addressed directly. The problem becomes that the bullying falls short of cognizable Title VII sexual harassment because either 1) it is not deemed to be "because of sex" as Title VII requires due to either the lack of direct targeting or the subtlety of the language employed; 2) it is coming not from a supervisor, but from peer employees, and the higher standard for employer liability is not met, although the sentiments reflect the workplace culture; or 3) it happens too infrequently or in too mild of a form to rise to the level of being "severe or pervasive," as the law requires.

Posted by: Kerri Stone | Nov 8, 2011 1:21:48 PM

What do you mean by saying that the bullying has become "gendered," if it's relatively evenly spread across genders? That it's targeted based on gender?

Posted by: Andrew MacKie-Mason | Nov 8, 2011 11:46:36 AM

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