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“How U.S. Sexual-Harassment Law Encourages a Culture of Victim Blaming”

TIME

October 5, 2021

Melissa Nelson was 20 years old when she was hired to work as a dental assistant for James Knight. Nelson had worked in his Fort Dodge, Iowa, office for more than a decade before he fired her in 2010. The problems began a year and a half earlier. On several occasions, Knight complained to Nelson that her clothing was too tight, too revealing and “distracting.” To mollify Knight, Nelson occasionally wore a lab coat over her clothes, which he viewed as necessary because, he said, “I don’t think it’s good for me to see her wearing things that accentuate her body.” According to Nelson, her clothes were not tight or in any way inappropriate for the workplace.

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Sexual-harassment law reinforces our cultural fixation on women who invite their abuse. The leading case on “unwelcomeness” is Meritor Savings Bank v. Vinson, which the U.S. Supreme Court decided in 1986. The story begins more than a decade earlier, when 19-year-old Mechelle Vinson was hired to work as a teller trainee at a small bank in Washington, D.C. Vinson had grown up poor and surrounded by violence. Her previous employment experience was limited to temporary work in an exercise club, a grocery and a shoe store, which made the steady bank job even more appealing.

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Vinson’s case eventually made its way to the Supreme Court, posing the question whether sexual harassment in the workplace violates federal antidiscrimination law. In a landmark victory for victims, the Court held for the first time that sexual advances constitute a form of unlawful discrimination when they create a “hostile work environment.” The Court wrote: “The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome,’” instructing that the “correct inquiry” is whether Vinson “by her conduct indicated that the alleged sexual advances were unwelcome.”

The creation of the unwelcomeness test tempered Vinson’s win. The focus would now be trained on her and on all accusers going forward. What mattered was how Vinson showed Taylor that his sexual overtures were not welcome. To this end, the Court blessed a searching inquiry into the victim’s conduct and appearance. Vinson’s “sexually provocative speech or dress” was said to be “obviously relevant” to whether she found the sexual advances unwelcome. This legal framework—which the Supreme Court handed down to the lower court resolving Vinson’s claim—remains in place today.

Joseph Sellers is the D.C. lawyer who represented Vinson after the Supreme Court remanded her case and before the parties ultimately settled in 1991, 13 years after Vinson sued. This final phase of the litigation was shaped by the Court’s newly announced unwelcomeness standard, which Sellers immediately realized would impose an unfair burden on Vinson and countless victims going forward. Vinson was a young “single mom and terrified at the prospect of disappointing or upsetting Taylor,” who had enormous control over her ability to make a living. But in that motel room, “Nobody locked the door. Nobody put a gun to her head,” Sellers says. This could have been held against his client, who submitted to intercourse with Taylor that day. “The question was whether she had shown—and it was viewed as a burden on her to show—that the conduct was unwelcome.” If Vinson didn’t do enough in this regard, the blame was on her.

Since handling Vinson’s case, Sellers has spent many decades representing victims of sex discrimination. He views the unwelcomeness test as a poor fit for the workplace with its myriad power imbalances. “In my experience,” Sellers relates, “it’s very rare that, where an overture is made by somebody with considerable power over the woman’s future, the person says something as direct as, ‘Please don’t do that. That makes me uncomfortable.’ Instead, they make excuses. ‘Well, I’m sorry, I’m busy tonight. I’m busy tomorrow night.’”

The question at trial, if a case makes it that far, is whether the victim’s conduct is sufficient to demonstrate unwelcomeness. This inquiry readily lends itself to blame-shifting. Particularly when the relationship between the harasser and his target is hierarchical, an accuser may not be positioned to do enough to be seen as a victim rather than an enabler. When victims are especially vulnerable, they are unlikely to satisfy the legal burden imposed on them. Without power in the workplace, a woman will find it difficult to directly confront her abuser about the unwelcomeness of his behaviors, leaving her a prime target for whatever comes her way.

Blame-shifting gives a gigantic pass to abusers—and it’s a dominant feature of our culture and our law. A primary function of what I call the credibility complex is to hold accusers responsible for their abuse while absolving the offender of responsibility. This preserves familiar structures—however hierarchical—in which the collective, particularly its most powerful members, is deeply invested.

The complete story can be accessed here.