Bearing Witness: Sexual Harassment and Beyond, Everywoman's Story.

• Author: Ontiveros, Maria L.

... people often tell stories. And these stories are telling.(1)

Ask an experienced employment discrimination laywer to describe a "typical sexual harassment case," and the lawyer might describe the case of a saleswoman who becomes part of a previously all-male department, is subjected to sexist jokes and pranks, and is told that she could only close a sale in a motel room and that a woman has no place in sales. Another lawyer might describe a Latina custodian who, over her protests, is regularly touched and kissed by her supervisor and told that she will have to submit to his advances to keep her job. Few attorneys, if any, would describe a white male professional harassed by his new female boss on her first day of a new job.(2)

It is disheartening, then, that the only best-selling work of popular fiction to deal with sexual harassment(3) -- Disclosure, by Michael Crichton(4) -- deals with a woman who sexually harasses a man and then falsely claims that he in fact harassed her. It is disheartening because stories both reflect and shape values. Disclosure presents the problem of sexual harassment as women abusing power -- by harassing men and by falsely accusing men. This definition of the problem marginalizes legitimate claims of sexual harassment brought by women against men and obscures the issue of power imbalances between men and women.

Yet this is hardly surprising once one considers the source of the story. Stories can be told from many different perspectives, and Disclosure is the sexual harassment story told from the white male perspective. As Carolyn Heilbrun observes, "power consists to a large extent in deciding what stories will be told ... male power has made certain stories unthinkable."(5) The white-male perspective has prevailed in both popular fiction and the doctrine of sexual harassment law. This essay contrasts the two different stories of sexual harassment: the dominant story, told from the perspective of white men, that is found in sexual harassment law and in the pages of Disclosure, and the marginalized story, told from the perspective of women, that is found in feminist theory and in the pages of Bearing Witness.

In her book, Bearing Witness, Celia Morris(6) uses Professor Heilbrun's observation as a challenge to compile and tell the stories of women who have been sexually harassed. As Morris puts it:

My own response was to crisscross the country listening to women's stories.... The Hill/Thomas hearings had forced one of those "unthinkable" stories into the open -- a story that many women knew to be rather ordinary. Along with Heilbrun, I believed that "we must begin to tell the truth, in groups, to one another...."

I was convinced that if we resurrected that will to truth-telling, the weight of evidence could then help us shift the focus from the women who are abused to the men who do the abusing....

....

And so, because these stories are relatively new on the world's stage, they can help us understand more clearly how men use women's sexuality to stunt and frighten them -- and thereby keep them in "their place." Ultimately, these stories, and others like them, can give us the tools and energy to reshape our world. [pp. 7-8; citations omitted]

These two nontraditional legal books -- one a work of fiction and the other a collection of narratives -- tell us a great deal about sexual harassment in our society. They contrast the fictitious vision of harassment from a white-male point of view with the dramatic experiences of approximately fifty women from different races, classes, and occupations.

Celia Morris's central themes -- that storytelling plays an important role in setting a nation's agenda and that stories possess a unique ability to communicate information -- are at the heart of what has come to be known in legal scholarship as the narrative debate. Narrative or storytelling has become a force in legal scholarship -- as an accompaniment to, a defining structure of, or a substitute for traditional law review articles.(7) Narrative has served at least two major purposes. "Counterstories" have been used to change the terms of the legal agenda by retelling stories of legal encounters from the outsider's perspective or by giving a legal cast to encounters that might not previously have been viewed as legal problems.(8) Narrative has also been put forward as a different epistemological or methodological approach to the law. Stories or experiences can communicate and promote understanding or learning in a different way than traditional legal analysis can.(9)

Some commentators have resisted the narrative movement,(10) claiming that narratives lack analysis,(11) do not constitute scholarship,(12) lack legal significance,(13) and deceive by not disclosing whether they are objectively true.(14) Narrative scholars have responded that these criticisms beg the questions of what constitutes scholarship, truth, legal issues, analysis, and reason -- which are exactly the epistemological and methodological questions that the movement seeks to explore.(15) These arguments, as well as the counter-responses,(16) constitute the narrative debate.

At the same time that this debate has been raging, theories pioneered by the law and literature movement and expanded in the law and popular culture school of thought also explain the importance of storytelling to legal scholarship. One branch of law and literature jurisprudence examines the law-related content of great literary works.(17) Law and popular culture, on the other hand, looks at popular books and other media to see how they reflect and reinforce the societal views and values that shape legal issues. These books are popular precisely because they "reflect whatever it is that ordinary readers feel most comfortable with."(18) They are especially effective at influencing and reinforcing "familiar values with subtlety and ease"(19) because of their entertaining, trance-inducing natures.(20)

Part I of this review discusses the plots, themes, and organizing structures of the two books. Part II discusses how the current doctrine of sexual harassment in practice, and its misinterpretation of women's response to harassment, has incorporated the themes of the dominant story found in Disclosure and ignored those themes brought out in Bearing Witness. Part III discusses how these books help us understand the nature of sexual harassment as a power dynamic between the genders -- a dynamic that is also influenced by the race of the participants. It discusses the question "Can a woman sexually harass a man?"

1. TWO VIEWPOINTS ON SEXUAL HARASSMENT: DISCLOSURE AND BEARING WITNESS

   A. Disclosure

   1. Sexual Harassment From the Male Perspective

      The action contained within the main text of Disclosure occurs during four days.(21) On Monday we meet Tom Sanders, our protagonist, getting ready to go to work at a high-tech company in Seattle. Tom anticipates the announcement of a company reorganization and his promotion at a morning meeting. He gets to work later than he planned,(22) because his wife needs his help with the children, even though Monday is the day she "takes off" from work to spend with the kids.(23) Because he is late, he finds out through the grapevine that his promotion has been given to Meredith Johnson, a young, beautiful executive from the California office. She also happens to be Tom's former lover. At the same time, Tom is combatting various problems in the company's product lines, including a production line in Malaysia for which he is personally responsible.

      Meredith arranges a meeting with Tom for 6:00 p.m. to discuss his department; she also promises to reminisce about old times over a bottle of dry chardonnay. After several minutes of sexual innuendoes,(24) and tricking him into rubbing her neck, Meredith starts to kiss him; the telephone rings, and she is interrupted (pp. 87-90). Tom also places a call, and as he leaves a message on an answering machine, Meredith advances on him (pp. 90-91). She kisses him, presses her body against his, opens his trousers, and performs fellatio (pp. 91-93). Tom, being a good husband and a good employee, initially protests;(25) then he responds and tries to take control sexually and dominate the situation.(26) Finally, "in an instant of harsh clarity," he realizes that he does not want to "do this" and ends the encounter (pp. 94-96). She is furious at being scorned -- she pounds on his chest, scratches him, and threatens to get revenge.(27) Sanders retreats to his home, where he has a fight with his wife but otherwise goes on about his life as if nothing has happened (pp. 97-108).

      The next day, Tom goes to work and discovers that Meredith has accused him of sexual harassment, that the company is backing her, and that he is expected to accept a transfer to another division (pp. 127-30). Tom decides to fight the charges, and he hires a Latina attorney named Louise Fernandez to pursue his own claim of sexual harassment. Fernandez actively listens to his story, painstakingly and accurately describes the doctrine of sexual harassment, and finally agrees to represent him.(28) The adversaries end up in mediation, where the existence of a tape recording of the sexual encounter is disclosed.(29)

      After some posturing, the company offers to drop the charges against Tom and give him a generous settlement. Below the surface, however, two plots continue to hatch against our hero. One involves the question of why Meredith would harass Tom on her first day of work, leaving herself open to charges of misconduct.(30) The answer lies in the fact that she is distracting him to prevent him from discovering her role in creating the problems on the production line in Malaysia -- problems that could lead to his termination (pp. 376-79). She plans to look like a hero when she solves the problems that eluded Sanders. The second plot centers on a company investigation into Tom's use of illegal means to check employees'...