CONTENTS I. INTRODUCTION II. THE HISTORICAL DREAM OF A SANITIZED WORKPLACE A. Divorcing Productivity and Passion B. Equating Sexism and Sexuality III. THE CONTEMPORARY CAMPAIGN A. The Legal and Cultural Environment B. Sanitizing the Workplace: A Summary of Current Developments C. Prohibiting Sexual Conduct 1. The Zero-Tolerance Approach 2. The Cultural Sensitivity Approach D. Punishing Sexual Transgressors E. Policing Sexual Relationships F. Disregarding Discrimination IV. THE TROUBLE WITH THE TRADITIONAL VIEW A. Essentializing Sexuality B. Abstracting Sexuality from the Larger Organizational Context C. Sexualizing Workplace Harm D. Legitimating Bias V. TOWARD A NEW VISION A. Aspiring to New Ideals B. Recommitting to Structural Equality Through the Law C. Valuing Workplace Intimacy VI. CONCLUSION The workplace is not designed to accommodate people falling in love. Love is an irrational emotion; the workplace is ... built on a foundation of rationality. --Bureau of National Affairs (1) Now, we have this officer telling a dirty joke, which he ... admits to have sexual overtones.... ... [I]n our workplace, one of the most serious offenses somebody can commit is sexual harassment. It is something that is pervasive in our society ... and it's something that we as people want to stop.... --Argument of the County Attorney In re County of Cook/Sheriff of Cook County (2) Somebody ought to get worried about the fact that no work is getting done. --Catharine MacKinnon (3) I. INTRODUCTION
Does sex have a place in the workplace? According to most management theorists and feminist lawyers, the answer is a resounding no. Progress, they say, means precisely driving sex out of the workplace--whether in the name of efficiency or equality.
It may seem paradoxical that such strange bedfellows would endorse the same sanitizing impulse; feminists are rarely viewed as close companions of corporate management. But upon further examination, it isn't ironic or strange at all. One of American society's most cherished beliefs is that the workplace is--or should be--asexual. The dominant ethic says, "Work is work, and sex is sex, and never the twain shall meet." Call it the ethic of workplace asexuality.
One may be tempted to attribute this ethic to Americans' prudishness, and, of course, conservative sexual sensibilities probably have played a role. But our commitment to workplace asexuality is, even more directly, a legacy of our historic commitment to a certain conception of organizational rationality. It wasn't Victorian churchwomen, but twentieth-century organization men who took the lead in creating the asexual imperative: men like Frederick Winslow Taylor, who saw managers as rational "heads" who would control the unruly "hands" and irrational "hearts" of those who assumed their places as workers in the modern organization. Although the necessity of bureaucratic organization has come under challenge in recent years, the drive toward asexuality is not fading along with it. Today, as much as ever, sexuality is seen as something "bad"--or at least beyond the bounds of professionalism--that should be banished from organizational life. If sexuality cannot be banished entirely, then those who embody or display it must be brought under tight control and subjected to discipline.
Although the drive to sanitize the workplace raises a range of fascinating issues about the place of sexuality and other affective elements of human life in contemporary organizations, it is beyond the scope of this Article to deal with most of them here. My goal is more modest: to show how sexual harassment law, as envisioned by some feminist reformers and implemented by many human resource (HR) managers, has become an important justification for a neo-Taylorist project of suppressing sexuality and intimacy in the workplace. To put it plainly, sex harassment policies now provide an added incentive and an increased legitimacy for management to control and discipline relatively harmless sexual behavior without even inquiring into whether that behavior undermines gender equality on the job.
This development was not (and I hope still is not) inevitable. Indeed, it is part of my aim to trace how it came about in order to reclaim some lost possibilities and chart a more promising path for the future. Although organizations are the main actors driving the sanitization process, the legal system has played an important role in providing incentive and cover for sanitization. In the United States, sex harassment has been viewed primarily as a form of sex discrimination under Title VII of the Civil Rights Act, the federal statute that prohibits sex discrimination in employment. (4) Title VII says nothing about sexuality; it simply prohibits discrimination based on sex. Thus, under the statute, the concept of sex harassment might have been elaborated to cover the full range of hostile and discriminatory actions--both sexual and nonsexual--that tend to keep women (or men who fail to conform to prescribed gender roles) in unequal jobs or work roles. Such an approach would have paralleled developments in race discrimination law, where courts had already adopted a broad view of racial harassment that recognized its role in reproducing patterns of racial segregation and hierarchy that relegate minorities to lower-paid positions.
Instead, the federal agency and the lower courts charged with interpreting Title VII defined harassment primarily in terms of sexual advances and other sexual conduct--an approach I call the sexual model. In earlier work, I showed that this sexual model is too narrow, because the focus on sexual conduct has obscured more fundamental problems of gender-based harassment and discrimination that are not primarily "sexual" in content or design. (5) In this Article, I show that the sexual model is also too broad, because the same focus on sexual conduct that has led courts to ignore these larger patterns of sexism and discrimination is also leading companies to prohibit a broad range of relatively harmless sexual conduct, even when that conduct does not threaten gender equality on the job. (6) In the name of preventing sexual harassment, many companies are proscribing sexual conduct that would not amount to sexual harassment, let alone sex discrimination, under the law. Many firms are even banning or discouraging intimate relationships between their employees. Worst of all, companies are disciplining (and even firing) employees for these perceived sexual transgressions without bothering to examine whether they are linked to sex discrimination in purpose or effect.
The story of the development and implementation of sexual harassment law is an account of one of the most ambitious recent attempts to use legal liability to transform workplace relations. Understanding how the process has played out provides us with critical insight into the dynamics of legal reform. How can we understand the campaign to sanitize the workplace that employers are undertaking in the name of sexual harassment law? Libertarian critics claim that the threat of employer liability under Title VII, combined with a vague definition of harassment, gives employers an incentive to go overboard in regulating employee conduct. But this explanation fails to account for the central puzzle of this reform effort: Why are employers cracking down on sexual conduct, rather than equally serious nonsexual forms of harassment and discrimination for which they are also liable? Firms often simply go through the motions or even resist legal mandates; why have they responded so enthusiastically, even overzealously, to this body of law?
As Part II shows, the answer lies in the fact that sexual harassment law resonated with a widely shared conception of organizational rationality. The legal system's focus on the harmfulness of sexual conduct tapped into an age-old view of sexuality that was deeply ingrained in managerial ideology and successfully exploited by feminist leaders. Classical organizational theory holds that sexuality and other "personal" forces are at odds with productivity and out of place in organizational life. Rather than challenging this conception, many feminists who campaigned against sexual harassment explicitly drew on it. They argued that men's sexual conduct subverted women's equal standing as employees, while at the same time undermining organizational productivity. Like classical organizational theory, feminist arguments pitted workplace sexuality, and professional competence and productivity, against each other.
As I elaborate in Section III.A, the confluence of legal, feminist, managerial, and popular ideals created an environment in which organizational actors have been able to steer the law to serve their own ends. As sociologists of law have shown, human resource managers--the inside managers and outside consultants who specialize in helping organizations handle personnel matters--and management-side labor lawyers consistently shape understandings of law and compliance with it in a direction that emphasizes organizational aims, especially efficiency. In the context of a legal system that highlighted the harm of workplace sexual conduct, a feminist campaign that condemned it as inconsistent with women's equality, a managerial tradition that defined it as in conflict with organizational rationality, and a news media that sensationalized it, it was almost predictable that HR managers and lawyers would mobilize sexual harassment law in the service of suppressing sexual conduct. As Sections III.B through III.E document, these experts have encouraged companies to punish sexual conduct without attending to the larger structures of gender inequality in which genuine harassment flourishes. They urge "zero-tolerance" policies and "cultural sensitivity" approaches that err on the side of prohibiting sexual conduct that might subjectively be perceived as offensive (such as sexual...