The history of responses to sexual harassment is a transatlantic story. 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.
In an important book, Sexual Harassment of Working Women (published in 1979), Mackinnon highlighted the direct relationship between women’s sexual victimisation and inferior economic position. She 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 (pp1-2). 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.
In the USA a small number of unsuccessful workplace sexual harassment law suits were brought in the mid-1970s, with African-American women – Paulette Barnes, Margaret Miller and Diane Williams – playing a leading role as claimants. 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’ (Mackinnon, p63). In 1980 the Equal Employment Opportunity Commission in the USA issued guidelines (influenced by Mackinnon’s legal work) stating that that civil rights’ legislation prohibiting sex discrimination in employment also rendered harassment unlawful (Mackinnon, 5-6).
In the UK the Sex Discrimination Act 1975 did not directly mention sexual harassment but it did make it unlawful to treat a woman ‘less favourably’ than a man ‘on the ground of her sex’ or, in relation to employment, to subject ‘her to any other detriment’. Given the shared common law tradition, UK legal experts suggested Mackinnon’s arguments were equally applicable. This legal framing of sexual harassment as sex discrimination was taken up by feminist trade unionists and other advocacy groups. The first task was to test the law in the courts. The first successful cases were won in 1983 and an important landmark case in 1986 (Strathclyde Regional Council v. Porcelli) led to the determination that sexual harassment was a form of sex discrimination under the 1975 Act.
Further reading:
- Catherine Mackinnon, Sexual Harassment of Working Women (Yale University Press, 1979)
- Kathrin S. Zippel, The Politics of Sexual Harassment. A Comparative Study of the United States, the European Union and Germany (Cambridge University Press, 2006)
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