I Can't to I Kant: The Sexual Harassment of Working Adolescents, Competing Theories, and Ethical Dilemmas
Drobac, Jennifer Ann, Albany Law Review
I. Introduction II. Socio-Legal Theory and the Regulation of Sex A. The Traditional View B. The Liberal View C. The Egalitarian and Mutuality Perspectives D. A Pansexual Perspective E. Socio-Legal Theory for the Twenty-First Century Adolescent 1. Physical Force 2. Duress and Teen Responses 3. Deception and Teen Perception 4. Socio-Legal Theory and Sexual Harassment Law III. Sexual Harassment Legal Theory A. Beyond the Subordination of Women B. Gender Policing C. Subordination in Context D. Beyond Subordination Theory IV. Philosophy and Psychology A. Some Classic Philosophers on Children and Capacity 1. The Social Contract Theorists 2. Further Perspectives on Children and Rationality 3. Approaching Women and Children B. Psychology 1. Capacity--Cognition 2. Capacity--Other Decision-making Skills a. Responsibility b. Temperance c. Perspective 3. Does Adolescent Capacity Even Matter? a. Physical Appearance b. "Consent" in Different Contexts c. Capacity Matters If It Exists--But Who Knows? V. Kantian Ethics A. Humanity, Morality, Means, and Ends B. The Categorical Imperative, Sexual Harassment, and Consent 1. Sexual Harassment 2. Consent C. Double Duty, Context, and the Person D. The "Formula of the End" and Sexual Harassment Law VI. Conclusion
"Abandon Ship! Every man for himself!" Capt. Robert Salmond, HMS Birkenhead, 1852
"Stand fast! Women and children first!" Lt.-Col. Alexander Seton, HMS Birkenhead, 1852
"But to stand an' be still to the Birken'ead Drill is a damn tough bullet to chew" Rudyard Kipling, Soldier an' Sailor Too (1)
Where is the legal theory that protects working teenagers from sexual harassment? Where is their lifeboat? Who speaks for our working adolescents and older teens on this subject? (2) In 2006, the U.S. Equal Employment Opportunity Commission (EEOC) announced that "[d]uring the height of the summer of 2004, more than 7.1 million young adults age 16-19 were employed." (3) Did those teens escape abuse? (4) Consider that question while many adults focus on their own welfare.
The sexual harassment of adult female workers remains a serious problem; (5) however, increasing numbers of teenagers are filing EEOC charges of discrimination. (6) In 2001, teenagers filed two percent of the sexual harassment charges with the EEOC. (7) By 2004, that number had quadrupled to eight percent. (8) Rates are expected to rise.
Susan Fineran and James E. Gruber studied the problem of adolescent sexual harassment with a small sample of 260 high school females and found that forty-three percent had experienced some form of sexual harassment at their part-time jobs. (9) Youth restaurant workers (62%) experienced more harassment than "care" workers (29%) who engaged in tasks such as babysitting and housekeeping. (10) Teens described seventy-two percent of the perpetrators as being older than they were. (11) This small study sends an alarming message concerning the safety of adolescent workers and confirms the need for more research in this area.
In 1979, long before today's working teenagers were even born, Catharine A. MacKinnon described her subordination theory to justify the prohibition of workplace sexual harassment as discrimination based upon sex. (12) She wrote:
Women are sexually harassed by men because they are women, that is, because of the social meaning of female sexuality, here, in the employment context. Three kinds of arguments support and illustrate this position: first, the exchange of sex for survival has historically assured women's economic dependence and inferiority as well as sexual availability to men. …