I can't to I Kant: the sexual harassment of working adolescents, competing theories, and ethical dilemmas.

• Author: Drobac, Jennifer Ann

1. Introduction II. Socio-Legal Theory and the Regulation of Sex A. The Traditional View B. The Liberal View C. The Egalitarian and Mutuality Perspectives D. A Pansexual Perspective E. Socio-Legal Theory for the Twenty-First Century Adolescent 1. Physical Force 2. Duress and Teen Responses 3. Deception and Teen Perception 4. Socio-Legal Theory and Sexual Harassment Law III. Sexual Harassment Legal Theory A. Beyond the Subordination of Women B. Gender Policing C. Subordination in Context D. Beyond Subordination Theory IV. Philosophy and Psychology A. Some Classic Philosophers on Children and Capacity 1. The Social Contract Theorists 2. Further Perspectives on Children and Rationality 3. Approaching Women and Children B. Psychology 1. Capacity--Cognition 2. Capacity--Other Decision-making Skills a. Responsibility b. Temperance c. Perspective 3. Does Adolescent Capacity Even Matter? a. Physical Appearance b. "Consent" in Different Contexts c. Capacity Matters If It Exists--But Who Knows? V. Kantian Ethics A. Humanity, Morality, Means, and Ends B. The Categorical Imperative, Sexual Harassment, and Consent 1. Sexual Harassment 2. Consent C. Double Duty, Context, and the Person D. The "Formula of the End" and Sexual Harassment Law VI. Conclusion I. INTRODUCTION

   "Abandon Ship! Every man for himself!" Capt. Robert Salmond, HMS Birkenhead, 1852

   "Stand fast! Women and children first!" Lt.-Col. Alexander Seton, HMS Birkenhead, 1852

   "But to stand an' be still to the Birken'ead Drill is a damn tough bullet to chew" Rudyard Kipling, Soldier an' Sailor Too (1)

   Where is the legal theory that protects working teenagers from sexual harassment? Where is their lifeboat? Who speaks for our working adolescents and older teens on this subject? (2) In 2006, the U.S. Equal Employment Opportunity Commission (EEOC) announced that "[d]uring the height of the summer of 2004, more than 7.1 million young adults age 16-19 were employed." (3) Did those teens escape abuse? (4) Consider that question while many adults focus on their own welfare.

   The sexual harassment of adult female workers remains a serious problem; (5) however, increasing numbers of teenagers are filing EEOC charges of discrimination. (6) In 2001, teenagers filed two percent of the sexual harassment charges with the EEOC. (7) By 2004, that number had quadrupled to eight percent. (8) Rates are expected to rise.

   Susan Fineran and James E. Gruber studied the problem of adolescent sexual harassment with a small sample of 260 high school females and found that forty-three percent had experienced some form of sexual harassment at their part-time jobs. (9) Youth restaurant workers (62%) experienced more harassment than "care" workers (29%) who engaged in tasks such as babysitting and housekeeping. (10) Teens described seventy-two percent of the perpetrators as being older than they were. (11) This small study sends an alarming message concerning the safety of adolescent workers and confirms the need for more research in this area.

   In 1979, long before today's working teenagers were even born, Catharine A. MacKinnon described her subordination theory to justify the prohibition of workplace sexual harassment as discrimination based upon sex. (12) She wrote:

   Women are sexually harassed by men because they are women, that is, because of the social meaning of female sexuality, here, in the employment context. Three kinds of arguments support and illustrate this position: first, the exchange of sex for survival has historically assured women's economic dependence and inferiority as well as sexual availability to men. Second, sexual harassment expresses the male sex-role pattern of coercive sexual initiation toward women.... Third, women's sexuality largely defines women as women in this society, so violations of it are abuses of women as women. (13) Other feminist legal theorists have added to our understanding of why workplace sexual harassment constitutes a civil rights violation. (14) These views may protect some minors. However, unique theoretical and ethical considerations may reinforce the prohibitions against the sexual harassment of teen workers.

   Any theoretical exploration of the treatment of working minors must deal with several complicating factors. First, the law has never treated adolescents the same as adults. (15) Statutory rape laws provide one example of how the law treats adolescent sexual conduct differently than it does consensual adult conduct. (16) Based upon the reasoning that those children under the age of consent do not have the capacity to consent, statutory rape laws demonstrate that the law invalidates adolescent "consent" (17) under certain circumstances.

   Second, minors are not simply young adults. Teenagers exhibit different psychosocial, physical, and neurological traits than do most adults. (18) New research confirms that adolescent brain development extends into the twenties, beyond the age of consent set in every state. (19) Impulse control, emotional regulation, planning, decision-making, and organization capabilities may not fully mature until the third decade of life. (20) In addition, youth experiences may influence the winnowing and reorganization of brain gray matter during adolescence. (21) Thus, new scientific research proves that adolescents are human being works in progress.

   These developmental differences may influence the way that adolescents respond to and cope with sexual harassment. (22) According to former EEOC acting Chair Paul Igasaki:

   [Y]oung people are taught to respect their elders, and despite modern cautions that no one can touch you against your will, it is always difficult to take the risk of coming forward. If people experiencing harassment or unfair treatment are underage, they may be reluctant to talk about the problem with adults. When the problem touches on sex, teenagers may not feel comfortable discussing the topic even with their own parents. (23) Thus, experience indicates that teens respond to sexual harassment differently than adults do. We see that the second distinguishing factor, developmental differences, relates to the first complicating factor, differential legal treatment. (24)

   Recognition of the unique nature and status of adolescence clarifies a third complicating factor: adolescent "consent" may signify something different than adult consent and may, therefore, justify unique treatment under the law. Because adult consent (as opposed to mere tolerance or acquiescence) provides a complete defense to allegations of sexual harassment, (25) adolescent "consent" must be carefully considered in the analysis of the theoretical and ethical basis for sexual harassment prohibitions.

   In Parts II and III, this Article considers the legal regulation of sexual conduct and sex-based harassment. Part II explores how socio-legal theory explains the regulation of sexuality. It discusses how such theory might address unique characteristics of teen development and employment to influence the law's treatment of youth sexual harassment and adolescent "consent" to sex. Traditional, liberal, feminist, and pansexual perspectives regarding sexual conduct highlight the tension between safeguarding teen sexual autonomy and protecting maturing adolescents. This tension mirrors the conflict often associated with competing theoretical approaches to child policy, the self-determinist approach and the protectionist, nurturance perspectives. (26) Part III briefly reviews sexual harassment legal theory and how it protects adolescent workers. This section also notes the gaps in mainstream sexual harassment legal theory through which adolescents may fall unprotected.

   Parts IV and V survey philosophical and psychological literature regarding adolescent capacity, legal rights, and ethical conduct. Part IV focuses first on classic philosophers who contemplated juvenile capacity--or the lack thereof. It then discusses adolescent psychosocial development to determine how science might influence the law's redress of the sexual harassment of adolescents. In Part V, this Article explores a Kantian perspective loosely patterned after the "categorical imperative" to formulate a dignity-based foundation for the prohibition of teen sexual harassment. This section answers how the law might respond to teen "consent" and explores the legal treatment of revocation.

   Finally, Part VI concludes that the sexual harassment of adolescents differs from that of adults. It summarizes how harassment of teens is unique and offers a synthesis of legal theory, ethics, and sexual harassment law. This section invites further dialogue and assistance concerning the theoretical underpinnings for the prohibition of sexual harassment of teenagers by their adult co-workers.

2. SOCIO-LEGAL THEORY AND THE REGULATION OF SEX

   The socio-legal regulation of sexual activity is not a new phenomenon. Legal theory concerning the regulation of sexuality may provide guidance for exploring the theoretical base of sexual harassment prohibitions and the redress of teen sexual harassment.

   1. The Traditional View

      Some scholars, including Martha Chamallas and William Eskridge, analyze the regulation of sex not according to the system (i.e., civil or criminal), but according to historical, societal mores, and values. In 1988, Chamallas distinguished between three dominant attitudes concerning sexual conduct: the traditional view, the liberal view, and the egalitarian view. (27) She explained that the traditional view relegated sexual conduct to the marriage bed. (28) This view, dominant until World War II, (29) promoted the marital family as the primary social institution. Embodied in law, this view focused concern not upon the sexual activity but upon the status of the parties. (30) The traditional view established normative parameters around sex. This view rejected nonmarital sex and female sexual autonomy. (31) Needless to say, it also rejected the legitimacy of teen sexual...