Transatlantic influences

Sexual harassment as a concept was developed by grassroots women’s rights activists in North America in the early 1970s, spreading quickly to inform women’s movements in other countries (including the UK), through feminist networking and publishing. Women’s groups, involving both staff and students, on US university campuses were particularly prominent in campaigning.

US legal scholar Catherine Mackinnon was influential internationally through her work (from 1974 onwards) in developing the claim that existing legislation prohibiting sex discrimination also rendered harassment unlawful.[i] In Sexual Harassment of Working Women (published in 1979) she not only laid out a legal argument that was transferable across jurisdictions but highlighted the direct relationship between women’s sexual victimisation and inferior economic position. Mackinnon defined sexual harassment as ‘the unwanted imposition of sexual requirements in the context of a relationship of unequal power’, forming part of ‘a continuum of severity’ that linked sexual jokes, innuendo, touching, and indecent propositions through to sexual violence.[ii] Mackinnon cited cases in which female employees felt compromised into sex (through threats of reprisal or promises of promotion) or pressurised to leave their jobs through sexual harassment. The legal claim hinged on the argument that such cases were not purely personal or isolated acts, but a matter of policy. Where employers had no procedure in place to respond to sexual harassment complaints, they were vicariously liable.

A small number of unsuccessful workplace sexual harassment suits were brought in the USA in the mid-1970s, with African-American women – Paulette Barnes, Margaret Miller and Diane Williams – playing a leading role as claimants. The experience of poverty (which meant that black women as a group were more likely to be in paid work than white women), compounded by the legacies of slavery (in which the legal sexual abuse of black women had been systemic) meant far more was at stake for them.[iii] As leading scholar and lawyer Kimberlé Crenshaw argued subsequently, ‘sexist expectations of chastity and racist assumptions of sexual promiscuity’ have ‘combined to create a distinct set of issues confronting Black women’.[iv]  A key turning point came in 1976, in response to further litigation pursued by Diane Williams, when a federal judge held that ‘sexual advances coupled with retaliation for their refusal constituted actionable sex discrimination’.[v]

Media take-up, advocacy and the labour movement

In the UK references to ‘sexual harassment’ appeared sporadically in the mainstream news media from 1975, initially through the reporting of US stories. The Guardian, whose Women’s Page (launched in 1957) introduced a broader readership to ‘second-wave’ feminist ideas, helped to create a ‘counter-discourse’ to the ‘patriarchal’ narratives that were dominant within the public sphere (including through Jill Tweedie’s regular column ‘Letters from a faint-hearted feminist’ in the 1980s).[vi] The newspaper first mentioned sexual harassment in coverage of allegations made by female police officers against male colleagues in Washington, USA.[vii] In 1979 it was reporting on university campus politics at Berkeley and Yale, where female staff and students were bringing legal actions for sexual harassment by male professors.[viii]

By 1981 a concerted campaign was in place to raise awareness of the extent and seriousness of sexual harassment in the UK and change the law. It built on feminist networks that also traversed the labour movement, human rights advocacy and journalism. The National Council for Civil Liberties (NCCL) played a leading role, alongside the trade unions, especially those with a high proportion of female members such as the National Association of Local Government Officers (NALGO).

Inspired by Canadian trades unions, NALGO launched a survey of experiences of sexual harassment which shone a light on tensions within the trade union movement. The responses of male members (at the branch meetings where it was publicised) ranged from ‘hysteria and jokes’ through to hostility and threats, demonstrating why it was so difficult for women to make formal complaints given fear of ‘backlash’.[ix] This was an era in which sexual innuendo and unsolicited touching in the workplace was trivialised as banter or fun, reinforced through popular TV sitcoms such as On the Buses (1969-73) and Are You Being Served? (1972-85), whilst nude ‘pin up’ calendars were common on workplace walls.

The 1982 NCCL report Sexual Harassment at Work drew together the findings of the NALGO survey and others conducted by the Alfred Marks Bureau and the European Economic Community Commission.[x] Across surveys – covering public and private sectors – a third to a half of respondents reported unwanted sexual attention at work, with women afraid to speak out.[xi]

Statute law and legal tools

Cover image of Sex Discrimination Act 1975

The Sex Discrimination Act (SDA) of 1975 had made it unlawful to treat a woman ‘less favourably’ than a man ‘on the ground of her sex’ but did not make direct mention of sexual harassment.

UK human rights advocates, aware of developments in the USA, were convinced that sexual harassment constituted a form of discrimination under the SDA. But the 1975 Act had not yet been tested in this way. Whilst a small number of women had come forward to the Equal Opportunities Commission (EOC), which had been set up in 1975 to monitor and support sex discrimination cases, women were extremely reluctant to pursue their cases publicly through the courts. In June 1982 barrister David Pannick presciently wrote that ‘the first woman to bring a claim under the 1975 Act in respect of sexual harassment at work will have to be very brave’.[xii]

The NCCL promoted new parliamentary legislation – working with the TUC, the Labour Party (then in opposition), and in consultation with the EOC, to draft a new Sex Equality Bill to resolve the ‘grey areas’ in both the SDA and the Equal Pay Act of 1970. This included, amongst other wide-ranging elements, the defining of sexual harassment as discrimination.[xiii]

Labour MP Jo Richardson introduced it to Parliament in December 1983 as a Private Member’s Bill. She told MPs in the House of Commons:

Sexual harassment has been practised against women at work since time immemorial, but women were so embarrassed about it and found it so difficult to talk about, that it is only recently that the matter has been debated and discussed. Harassment ranges from sexist language to explicitly sexist calendars – [Interruption.] – to page three of The Sun, to the more threatening examples of women being touched up or asked for sexual favours and of being told, which many women have over the years, that they will not be promoted unless they submit to the sexual advances of someone who works higher up in their department. I assure those Conservative Members who seemed to think that my reference to calendars was trivial, that such matters offend many women.[xiv]

The bill fell ‘at the first hurdle’ with MPs (97% of whom were men) voting 198 to 118 against a second reading, despite the women thronged above in the public gallery.[xv] With the path to statutory legislation closed off for the meantime, the route now lay through case law as in the USA.

Winning the case

In 1986 a complaint brought by Jean Porcelli finally resulted in the ‘first definitive ruling by a British court’ that sexual harassment constituted discrimination within the terms of the SDA.

Employed as a school lab technician by Strathclyde Regional Council, Porcelli had faced a ‘policy of vindictive unpleasantness’ from her two male colleagues ‘with the deliberate purpose of making her apply for a transfer to another school’. Their behaviour had included lewd insults and comparisons to nude photographs on page three of the Daily Record.

The judgment reached by three judges in the High Court of Session in 1986 was the final one in a protracted series of industrial tribunal hearings and appeals that had taken two years. Lords Emslie, Grieve and Brand found that the behaviour used was ‘a particular kind of weapon’ or ‘sexual sword’ that was ‘based upon the sex of the victim’ and ‘would not have been used against an equally disliked man.’[xvi]

The outcome of the judgement was notified in June 1986. Looking back, some twenty years later, Jean Porcelli spoke of the very considerable toll the case had placed on her health, well-being, personal life and professional career. She told The Times: ‘My case did change things for women to some extent. But it disheartens me that harassment still happens.’[xvii]

This one ‘very brave’ woman, like the US claimants, made a significant difference in combatting sexual harassment.

Past and present

Jean Porcelli’s case and the circumstances leading up to it show the complex interplay of politics, popular culture and law in shaping women’s socio-economic position.

The pace of change in all these fields was slow, but the differing roles of key actors and of organisations – whether new (the EOC), old (the NCCL, trade unions, the media) or ancient (parliament, the judiciary) – warrant careful study. The examples cited above enable us to identify institutional constraints and limitations as well as the opportunities that created room for manoeuvre and the tactics that opened them up. The international context was paramount: not only was UK equalities law shaped by US models but activists and advocacy groups learned from North American successes. Solutions required a multi-pronged strategy: naming, defining and mapping the problem, then publicising it; testing the law as well as seeking to change it; and pursuing a broader educative approach to change behaviours.

The workplace and the university were the spaces on which the campaigns of the 1970s and 1980s focused – and, in the UK, local government (with its high proportion of female employees) was where it achieved its most notable successes.   Since then the light has been shone on other locations and structural relationships: Parliament and politicians of all political parties (including behaviour towards staff and the process for dealing with complaints), and, most recently, the sexual harassment and abuse of girls by boys in schools.[xviii]

Photo by Ehimetalor Akhere Unuabona on Unsplash

The campaigners of the 1970s-80s achieved significant success in enabling the concept of sexual harassment to permeate the mainstream, and they set a critical ‘counter-discourse’ in motion.[xix]  Yet, as the response in the House of Commons in 1983 demonstrates, there was an entrenched dominant public discourse that trivialised the very behaviours that feminist campaigners were seeking to highlight as problematic. It is this work in shifting the dial that the #MeToo movement has taken on so very prominently in recent years.

 

Acknowledgements

Many thanks to the ‘Gender Equalities at Work’ project team and advisory group for their suggestions and conversations which shaped the ideas and research discussed here.

[i] In the USA discrimination on the basis of sex as well as race was proscribed by the 1964 Civil Rights Act and (since 1971) the Equal Protection Clause of the Fourteenth Amendment.

[ii] Catherine Mackinnon (1979) Sexual Harassment of Working Women (Yale University Press), 1-2.

[iii] Ibid, 53-54.

[iv] Kimberlé Williams Crenshaw (1989) ‘Demarginalising the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics’, University of Chicago Legal Forum, article 8, 159.

[v] Mckinnon, Sexual Harassment, 63. The Supreme Court recognised sexual harassment as a form of discrimination in 1986.

[vi] D. Chambers (2017) ‘Journalism’ in C. Hanson and S. Watkins (eds) The History of British Women’s Writing, 1945-75 (Springer), 71-88.

[vii] Jane Sewberry, ‘Fair cop’, Guardian, 15 October 1975, 3.

[viii] Christopher Reed, ‘Degrees of misconduct, Guardian, 6 April 1979, 11.

[ix] Sue Landau, ‘Going to work on the sex-or-the-sack syndrome’, Guardian, 22 July 1981, 11.

[x] Ann Sedley and Melissa Benn (1982) Sexual Harassment at Work (NCCL).

[xi] Judith Judd, ‘When a glance becomes a leer’, Guardian, 27 June 1982; 4. Cary Cooper and Marilyn Davidson (1982) High Pressure. Working Lives of Women Manager (Fontana).

[xii] David Pannick, ‘A woman’s right to sue’, Guardian, 28 June 1982, 6.

[xiii] Ann Sedley and Catherine Scorer, Amending the Equality Laws (NCCL, 1983).

[xiv] PP. Hansard [HC], 9 December 1983, Jo Richardson MP.

[xv] ‘Sex equality bill falls at the first hurdle’, Guardian, 10 Dec 1983, 5. On the gender balance in Parliament, Harriet Harman (2018) A Woman’s Work (Random House), 71.

[xvi] Strathclyde Regional Council v. Porcelli [1986] IRLR 134.

[xvii] Alexandra Frean, ‘Sex case pioneer had to fight the law as well as male “jokes”’, Times, 10 June 2006, 6.

[xviii] Dame Laura Cox, ‘The Bullying and Harassment of House and Commons Staff’, Independent Inquiry Report, 15 October 2018, https://www.parliament.uk/globalassets/documents/Conduct-in-Parliament/dame-laura-cox-independent-inquiry-report.pdf [accessed 16/6/2021]; ‘Salmond enquiry having a chilling effect on women say experts’, Guardian 5 March 2021, https://www.theguardian.com/lifeandstyle/2021/mar/05/salmond-inquiry-having-chilling-effect-on-women-say-experts?CMP=Share_iOSApp_Other [accessed 16/6/2021]; Everyone’s Invited, https://www.everyonesinvited.uk/ [accessed 16/6/2021].

[xix] Chambers, ‘Journalism’.