Sexual Harassment and Racial Disparity: The Mutual Construction of Gender and Race

Author:Tanya Katerí Hernández
Position:Professor of Law, Sto John s University Sehool of Law. A.B. Brown University

I. Introduction II. Racial Disparity Of Sexual Harassment A. The Statistical Data B. Early Explanations for the Statistical Pattem III. Prostitution Paradigm As A Causal Factor A. Historical Backdrop to the Prostitution Paradigm B. The Sex Tourism Comparison: Overt Expression of Racialized Gender Stereotypes 1. Sex Tourism Defined 2. Prevalence of Sex Tourism 3. Race-Based Nature of Sex Tourism... (see full summary)


    Tanya Katerí Hernández,Professor of Law, Sto John's University Sehool of Law. A.B. Brown University; J.D., Yale Law Sehool. lthank The Joumal ofGender, Race & Justice for inviting me to participate in the syrnposium entitled A Critical Legal Perspective on Entertainment: Sports, Sex, ldentity, which inspired me to explore the parallels between sex tourism and sexual harassment. lowe special thanks for the support provided by the Equal Employrnent Opportunity Commission and its outstanding representatives ineluding William Tamayo, David Greenberg and Pierrette Hiekey. My partieipation in the Sto John's University Sehool of Law Workshop on Law and Statisties, along with the Comell Law Sehool Feminism and Legal Theory Projeet Fall 2000 Workshop, has faeilitated my work on this Artiele. But none of this would have been possible without the ineredible generosity of Professor Jaek Williams, who not only provided me with an appreciation for statisties unparalleled in all my years of "faney sehooling," but also revealed the magie and Iimitation of numbers. The following kind souls helped me make sense of the numbers by reading an earlier draft of this Artiele: Neil Gotanda, Catharine MaeKinnon, Brian Z. Tamanaha, John Valery White, and of eourse, James Q. Walker aeeompanied by the loveable distraetion of Alesandro Q. Walker. Holly Giordano, Sara Jane Haubert, Mark Murphy, Nili Sehipper, Dianne Woodbum and especially Franklyn Arthur all provided exeellent researeh assistanee. '

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As we look at ... pattems of oppression, we inay come to leam, finally and most importantly, that all fonns of subordination are interlocking and mutually reinforcing.1

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I Introduction

Por a number of years, cornmentators have proffered anecdotal evidence to suggest that women of color figure prominently as sexual harassment plaintiffs.2 Until recently, a systematic statistical analysis of women's experiences of sexual harassment by race was largely unavailable. Por the first time, this Article comprehensively analyzes Equal Employment Opportunity Cornmission (EEOC) sexual harassment charge statistics, by. looking at data from the last seven years along with Lexis Nexis and Westlaw electronic reports of sexual harassment complaints for the last twenty years. What irnmediately becomes apparent in this statistical analysis of sexual harassment charges in the United States is the overrepresentation of women of color and the "under-representation,,3 of White women in the charging parties when compared with their demographic presence in the female labor force.4 Although a number of factors may very well be causally connected to the disproportionate pattems in female sexual harassment filing statistics by race, primary amongst the causal factors is the powerful infiuence of racialized gender stereotypes. Yet, sexual harassers rarely articulate the race-based nature of their conduct and may not even be conscious of it.5 Therefore, this Article draws upon the similar but more racially explicit context of sex tourism to explicate the race-based motives of sexual harassers.6

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A comparison of racialized sexual harassment in the United States with international sex tourism reveals a parallel dynamic of racial disparity. An analysis of global sex tourism demonstrates that sex tourists disproportionately target women of color because of the lure of racialized gender stereotypes. Similarly, sexual harassers statistically appear to disproportionately victimize women of color as compared to their representation in the labor force. The comparison suggests a similar operation of racialized gender stereotypes that conceptually distinguish "pure" White women from "wanton" women of color. This is a distinction described by Beverly Balos and Mary Louise Fellows in a recent law review artiele as the "prostitution paradigm.,,7 This Artiele applies Balos' and Fellow's prostitution paradigm to the (hetero)sexual harassment8 context in order to elucidate the rationale for the seeming racial disparity in rates of sexual harassment.

Part n of this Article examines the empírical evidence that suggests that women of color are disproportionately targeted as victims of sexual harassment in the United States and concludes that the depiction of women of color as prostitutes and as inherently wanton is instrumental to the construction of both gender and race. Part III discusses how the prostitution paradigm is an evident causal factor in the racial disparity of sexual harassment. I examine the parallels between sexual harassment and sex tourism to demonstrate the role of race in the subjugation of all women through the prostitution paradigm. Part IV elaborates on how the statistical analysis of sexual harassment complaints demonstrates the mutual construction of gender and race. I conclude the Artiele by exploring the multidimensionality of race and gender in the continued evolution of sexual harassment jurisprudence.

II Racial Disparity Of Sexual Harassment

In a study of 1992 EEOC sexual harassment statistics, the Center for Women in Government at the University of Albany reported that Black .women complainants accounted for 14.4% of sexual harassment charges, women of other races (not specified) accounted for 14.7% of sexual harassment charges and White women accounted for 61.9%.9 Although Page 186 White women complainants accounted for the vast majority of EEOC sexual harassment charges, in raciaHy comparative ternls, White women are underrepresented as complainants. SpecificaHy, White women accounted for only 61.9% of the sexual harassment charges in 1992, even though they made up 84.8% of aH women employed in the civilian labor force in that same year. 10 Furthermore, the data indicates an overrepresentation of women of color as complainants in comparison to their representation in the female labor force. Black women, at the time the studied statistics were gathered, made up only 11.5% of aH women employed in the civilian labor force and yet they accounted for 14.4% of the sexual harassment charges.ll Other women of color only made up 3.7% of women employed in the civilian labor force but accounted for 14.7% of the sexual harassment charges.12 Particularly troubling is the fact that the 1992 EEOC data were not an aberration.

A The Statistical Data

My own analysis of EEOC sexual harassment charge statistics from 1992 through 1999 indicates that the race-based disparity in filing charges is a 'pattem among' woinen who filed EEOC charges13 Similarly, after surveying federal court cases from the First through Sixth Circuits containing sexuai .harassment aHegations through surnmer 2000,14 I discovered that since the inception of the sexual harassment cause of action, the same racial pattern emerged among female plaintiffs. 15

In the United States, the amount of variation between the observed numbers of sexual harassment charges by race and the expected number of sexual harassment charges based on racial demographic percentagesof the Page 187 population is considerable for each year of data. 16 The Supreme Court has acknowledged that, as a general rule, for sample sizes larger than thirty, if the difference between the expected value and the observed value is greater than two or three standard deviations, then a social scientist would view the data as not being the result of pure chance.17 The average sample size for each year of EEOC data analyzed in this ArticIe was 13,051.5, and the average sample size for each circuit of federal cases analyzed was 97.18 Appendix II illustrates that the standard deviation for White women ranged from 71.5 to 84.4 and from 31.5 to 66.7 for women of color. The statistical probability of such extraordinarily large standard deviations occurring in a normal distribution is approximately zero. 19 Therefore, although a number of factors could plausibly contribute to the racial disparity in sexual harassment charge statistics, the existence of sorne correlation between rates of sexual harassment and race-based decision-making on the part of harassers is inescapable. What the data suggests, is that sexual harassers target Whíte women as victims at disproportionately lower rates than women of color. This concIusion is consistent with sorne of the few empírical studies to specifically focus on the influence of race on sexual harassment,20

Although there is no mechanism to absolutely determine whether the number of complaints of sexual harassment faithfully reflect the actual rates of sexual harassment in society,21 the sexual harassment charge statistics Page 188 suggest a general pattem of racial disparity that is highly significant given its consistency over the years.22 The analysis of charge statistics aIso has the advantage of being able to draw upon data generated from one consistent definition of sexual harassment,23 In contrast, social science researchers have observed widely varying. sexual harassment statistics depending on the definition chosen by the designer of a study.24 Furthermore, the empirical Page 189 alternative of solely· examining the data from successfully litigated cases suffers the weakness of grossly underestimating the societal occurrence of sexual harassment. The mechanism that pushes the majority of legal charges to settlement before litigation in court is also present in sexual harassment cases. In addition, the nature of the sexual harassment claim, with...

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