We often conflate sexual assault and sexual harassment, but they’re quite different things and we should understand the difference. So, when celebrated philosopher Martha Nussbaum stopped by our (virtual) studio recently to discuss her newest book, Citadels of Pride: Sexual Abuse, Accountability, and Reconciliation, she gave us a quick lesson on the differences.
“Sexual assault, of course, is a criminal offense, and there are various different degrees of it, but it’s always handled by the criminal law, which means in the United States that it’s handled mainly by the laws of the different states,” she told Mila. The DOJ labels sexual assault “any nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks capacity to consent.” Nonconsensual physical contact is key in assessing sexual assault—relations with a minor, nonconsensual touching or penetration, and incest all fall into this category. States handle sexual assault cases, and while most of the acts conventionally thought of as “sexual assault” are illegal everywhere, state laws vary greatly around the country.
On the other hand, sexual harassment in the workplace is a federal offense pursued by the federal government under Title VII of the 1964 Civil Rights Act. According to the U.S. Equal Employment Opportunity Commission (EEOC): “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”
So, you can be sexually harassed without ever being assaulted, but it needs to happen in a pervasive manner at the workplace. It is not illegal to catcall a woman on the street (although it is supremely gross), but if you make a habit of catcalling your subordinate female worker who definitely doesn’t like it, it is.
Recognition of harassment based on sex and the idea of a hostile work environment haven’t been around as long as you might think. “The breakthrough was that feminist lawyers… got to work convincing people that it would be correct to see [sex-based workplace harassment] as an instance of sex discrimination, because they thought, ‘If we can show that existing law of discrimination in Title VII that already covers this, then we have cut through the problem.’ And indeed people listened,” Nussbaum said.
Sexual harassment can be broken down into two distinct parts: a quid pro quo, and a hostile workplace environment. One of the feminist lawyers Nussbaum mentioned, Katherine McKinnon outlined quid pro quos in her seminal work, Sexual Harassment of Working Women. A quid pro quo happens when one person does something in exchange for something else. For instance, offering a raise to a worker in exchange for sex constitutes a quid pro quo. The 1986 Supreme Court case Meritor Savings Bank v. Vinson ruled this tactic as illegal in the workplace. In the case, the vice president of a bank and a teller engaged in “consensual” sexual relations. The truth is that the teller agreed to sleep with the vice president only because she was afraid to lose her job. She later sued for sexual harassment under Title VII, arguing that she was a victim of a quid pro quo, and the courts agreed.
While quid pro quos were relatively easy to litigate into illegality, the hostile work environment took a few court cases to become fully illegal. In the 1993 case Harris v. Forklift Systems, the company president created an abusive work environment for one of his female employees, Teresa Harris. He denigrated her for her gender, made lewd comments to and about her in front of her peers, and even asked her and other female employees to take coins out of his front pants pocket with their hands. Harris sued, and the Supreme Court accepted her argument that he had discriminated against her based on her sex by creating an “abusive work environment.” They also concluded that a hostile work environment could be proved even if the conduct in question did not “seriously affect [an employee’s] psychological well-being” or “suffe[r] injury.” This case opened the door for more hostile workplace litigation, and the definition expanded a few years later in Carr v. Allison Gas Turbine Div. Gen. Motors. That case made employers liable for hostile work environments created by fellow workers and ruled that even if women made sexually explicit comments or jokes, it did not excuse male co-workers for creating a hostile work environment based on sex. It is important to note that the employer is at fault in both cases even though it is the managers or workers who create a hostile work environment.
To recap, sexual harassment can either take the form of a quid pro quo or a hostile work environment. A quid pro quo takes the form of a “this-for-that” situation. A hostile work environment is a situation where there is a pattern of conduct at your job that makes you feel intimidated, frightened, or unwelcome because of your sex.
If you or someone you know has experienced sexual assault or harassment, it’s essential to report it and get help. Here is a link to the National Sexual Assault Online Hotline, and here is a link on how to file a harassment charge through the EEOC.
“Facts About Sexual Harassment.” U.S. Equal Employment Opportunity Commission, www.eeoc.gov/fact-sheet/facts-about-sexual-harassment.
“HARRIS v. FORKLIFT SYSTEMS, INC.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/supremecourt/text/510/17.
MacKinnon, Catharine A. Sexual Harassment of Working Women: a Case of Sex Discrimination. Yale University Press, 1979.
POSNER, Chief Judge., and Circuit Judge  COFFEY. “Carr v. Allison Gas Turbine Div. Gen. Motors.” Legal Research Tools from Casetext, 26 July 1994, casetext.com/case/carr-v-allison-gas-turbine-div-gen-motors.
Supreme Court. MERITOR SAVINGS BANK, FSB, Petitioner v. Mechelle VINSON Et Al. . 19 June 1986.
“Types of Sexual Assault.” Womens Gender Center, www.marshall.edu/wcenter/sexual-assault/types-of-sexual-assault/.
“What Do I Need to Know about… WORKPLACE HARASSMENT.” U.S. Department of Labor Seal, www.dol.gov/agencies/oasam/centers-offices/civil-rights-center/internal/policies/workplace-harassment/2012.
Yeung, Bernice. “In 2 States, Sexual Assault Laws Lag Far behind the Mainstream.” Reveal, 24 Aug. 2015, revealnews.org/article/in-2-states-sexual-assault-laws-lag-far-behind-the-mainstream/.