Sexual harassment losing sight of sex discrimination.

• Jurisdiction: Australia
• Date: 01 August 2002
• Author: Thornton, Margaret

[In this article, the author argues that the separation of sexual harassment from sex discrimination within legal and popular discourses deflects attention from systemic discrimination. The article examines a range of conduct to support the view that the closer to heterosex the harassing conduct is, the more likely it is to be accepted as sexual harassment. This corporealised focus not only individualises the conduct and detracts from the idea of women as rational knowers in authoritative positions, it also legitimises other forms of harassing conduct in the workplace. The unremitting focus on the sexual in sexual harassment therefore serves a convenient political and ideological purpose within a neo-liberal climate that privileges employer prerogative over workers' rights.]

I INTRODUCTION: EMBODIMENT AT WORK

Legal proscriptions against sexual harassment in the workplace, accompanied by avenues of redress, have existed in Australia for approximately two decades. The legal and popular discourses around sexual harassment have caused women to think about the way the phenomenon detracts from their personhood. They not only have the right to say `no' to a boss or a colleague, but to complain formally, either in-house or to a government agency, if they are sexually harassed. The evidence suggests that corporations are paying much more attention to internal grievance mechanisms than was once the case. (1)

While the recognition of sexual harassment as a legal wrong is an important step in securing human rights for women and non-dominant men, my support for the action is by no means unequivocal. I suggest that the disproportionate attention paid to the sexual in sexual harassment, as illustrated by the high profile media cases of the 1990s, (2) has deflected attention away from the sex-based discrimination that informs it. (3) The erection of a line of demarcation between sexual harassment and sex discrimination has been legitimated in Australia through legislation, despite the fact that the proscriptions against harassing and discriminatory conduct are contained in the same legislative instruments. (4) The construction of women workers as primarily sexed can have the effect of affirming the misogynistic subtext of the social script that the feminine is a dangerous and disorderly force within a sphere of rationality. It allows women to continue to be constituted as `Others' to `Benchmark Men'--that is, those who are Anglo-Celtic, heterosexual and able-bodied, and who are the normative inhabitants of the world of paid work. (5) The corporealisation of women in positions where they are expected to display reason is a very effective mechanism for impugning the authority of the feminine. Such practices help to explain the phenomenon of the glass ceiling that operates to exclude women from authoritative positions. (6)

Typically, men are the respondents in sexual harassment complaints and women are the targets. This accentuates a heterosexed paradigm with its connotations of sexual desire which lies at the basis of popular understandings of sexual harassment. However, in accordance with the glass ceiling theory, harassment is frequently perpetrated against women, irrespective of their sexual orientation, because they are not wanted in certain sectors of the workplace. This harassment may be more appropriately characterised as discrimination at work; it has nothing to do with desire. (7) Similarly, non-dominant men may be the targets of harassment at work because they do not fit into prevailing masculinist cultures. While this phenomenon is familiar in Australia, the essentialised understanding of sexual harassment has precluded the lodgment of complaints under this head to date. (8)

This heterosexed understanding of sexual harassment also needs to be placed in its broader sociopolitical context. Over the last decade or so, we have witnessed a swing away from the ideal of justice for women, as well as for Aboriginal people and classes of Others generally, to a focus on the individual. Rather than looking to the political domain or civil society for the realisation of the common good, emphasis is placed on the market. Neo-liberalism is not concerned that gross inequalities emerge as a result. Indeed, neo-liberal governments themselves promote a pro-market philosophy through policies such as deregulation. In the workplace, enterprise bargaining has been a very effective tool for weakening unionism and restoring employer prerogative. (9) Workplaces have generally become much less secure as conditions of work have been eroded at the expense of profit-making. Short-term contracts and casualisation underscore the culture of uncertainty that characterises the contemporary workplace. (10) Within this environment, workers quickly learn to be docile, since those who complain about workplace conditions may find themselves dispensable. Those subjected to discrimination face a dilemma: complain and risk losing your job, or keep quiet and retain it. However, by keeping quiet one may become complicit in the maintenance of sexual regimes in the workplace.

The privileging of the sexual in sexual harassment means that the focus is on the aberrant behaviour of individuals rather than the structural and systemic manifestations of discrimination. It must be acknowledged, however, that the latter remains perennially elusive. How do we tell the difference between `managing' and `harassing' when workers have to be constantly cajoled into working harder and being more productive in order to increase profit margins? The growing emphasis on employer prerogative, or managerialism, and the correlative de-emphasis on employee rights in an insecure environment mean that it has become more difficult for targets of harassment to make out complaints. I suggest that the corporatised workplace operates to legitimise the sex-based harassment of women and non-dominant workers, many incarnations of which are not tractable to remediation under anti-discrimination law.

Sexual harassment was not initially included in anti-discrimination legislation in Australia, but when it was included the proscription was accepted more readily than in the US. The US still relies primarily on a general proscription of sex discrimination, (11) which means that sexual harassment is a judicial rather than a legislative creation. In the early US case law, the epistemological stumbling block was that sexual harassment was deemed to be neither employment-related nor sex-based. (12) I have suggested elsewhere that Australian legislatures adopted a more pragmatic approach because it was accepted at the outset that sexual harassment impacted adversely upon productivity in the workplace. (13) Despite the proscription, articulating a complaint and obtaining a remedy is always fraught, particularly in a context where employer prerogative endows managers with considerable discretion. Furthermore, it is a flaw of the prevailing individual complaint-based model of anti-discrimination legislation that the individual act of sex discrimination is separated from sexism, just as racial discrimination is separated from racism, homosexual discrimination from homophobia, and so on. (14) While the class-wide factor is recognised in the lodgment of complaints, the probative burden, which includes connecting the impugned conduct with an identifiable respondent, is the responsibility of the individual complainant. (15) The effect is to relegate the systemic factors to the background. This dilemma confronts all discrimination complainants. The sexual activity within sexual harassment complaints is often so overt that it takes centre-stage and overwhelms the contextual factors. I suggest, therefore, that the favoured reading of sexual harassment serves a significant ideological and political role in safeguarding the conventional gendering of workplaces.

In Part II, I turn to a consideration of what might be imagined as a continuum of sexual harassment that bedevils mainly women workers, particularly within masculinist enclaves. I do not wish to suggest that the continuum is rigid or unchanging but that there is a discernible pattern, underpinned by the essentialised understanding of sexual harassment that prevails in legal and popular culture. I hope that this analysis will generate discussion around the nature and effect of the current conceptualisation of sexual harassment, as this issue has been largely quiescent in recent years as workers grapple with the depredations wreaked by neo-liberalism.

I start with overtly sexual conduct at one end of the spectrum and argue that the more the harassing conduct is like heterosexed activity (conceptualised in terms of an active male harasser and a passive female `victim') the more likely it is to be accepted as sexual harassment. The less sexualised, albeit sexed, the harassing conduct is, the more likely it is to be normalised within the workplace and the more difficult it is for the complainant to obtain a remedy.

I acknowledge that the language I am working with--especially sex and sexuality--is very slippery, as these terms merge into one another and take their colouration from the context in which they operate. After all, we are all sexed, as well as sexual, beings. While `sex' may refer to a biological category, it is also a socially constructed term that incorporates gendered understandings of masculinity and femininity. (16) This broad view of sex has selectively been incorporated into sex discrimination jurisprudence, although the linguistic leeway accommodates a biological reductionism when it suits. (17) The legislation itself does not define `sex', thereby investing tribunals and courts with considerable power to tell us what it means. The Sex Discrimination Act 1984 (Cth) (`SDA') does no more than refer to the `opposite sex', (18) thereby suggesting a biological interpretation. `Sexual', like sex, can refer both to biological and...