Marion Crain & Ken Matheny
87 Geo. Wash. L. Rev. 56
In the waning months of 2017, Americans endured an almost daily barrage of news reports describing sexual harassment by powerful men in entertainment, media, politics, and law. The media focus continued in 2018 as reactions proliferated, ranging from walkouts at Google by workers protesting the company’s handling of sexual-misconduct allegations against its male executives, to new initiatives by government agencies and private firms designed to reduce the incidence of sexual harassment and to promptly remediate it when it occurs. Although sexual harassment had been headline news before—most notably, during the 1991 Anita Hill–Clarence Thomas debacle—never had so many victims joined hands and come forward demanding change. The media spotlight presented a tremendous opportunity to reframe sexual harassment from an individual, personal, and idiosyncratic instance of sexual desire to a common abuse of gender and economic power affecting millions of working women and men on a daily basis. Feminist legal scholars have known for years that expectations about appropriate gender roles create an environment where sexual harassment functions to protect male privilege. Nevertheless, the message that sexual harassment is a systemic feature of workplace gender inequality never reached the general public. Instead, the mainstream media’s systematic focus on sexual harassment as a twisted manifestation of male sexual desire grabbed headlines and implied that when the harasser is discharged, the story ends. But sexual harassment is about much more than men behaving badly. It is a structural problem linked to unequal pay and occupational segregation by sex.
One might think that labor unions would come forward as advocates for such a large segment of workers suffering economic disadvantage in the workplace. Yet despite the frequent use of the word “solidarity” in media reports about #MeToo, organized labor was conspicuously absent from the dialogue. Although union leaders made public statements denouncing sexual harassment and promised to redouble union efforts to eradicate it, most disclaimed legal responsibility for preventing and addressing sexual harassment in the workplace. Not all the blame for labor’s passive stance can be laid at labor’s doorstep, however. Unions are hamstrung by a legal structure that creates a fundamental role conflict where they represent a workforce that includes both potential harassers and victims, and National Labor Relations Act protection for worker concerted action for mutual aid has been cabined by courts and the National Labor Relations Board to the point that labor’s tradition of solidarity is barely recognizable.
