Idle Rights: Employees' Rights Consciousness and the Construction of Sexual Harassment Policies

By Marshall, Anna-Maria | Law & Society Review, March 2005 | Go to article overview

Idle Rights: Employees' Rights Consciousness and the Construction of Sexual Harassment Policies


Marshall, Anna-Maria, Law & Society Review


This article analyzes women's legal consciousness in responding to unwanted sexual attention in the workplace. By focusing on a particular social problem, this study is situated in the particular legal domain of sexual harassment laws and in a specific organizational context. Taking the perspective of the intended beneficiaries of sexual harassment policies and procedures-women with complaints about sexual conduct in the workplace- I show that the implementation of grievance procedures creates powerful obstacles to women's efforts to assert those rights. Moreover, the practices implementing the policies can alter the very definition of sexual harassment in that selling. Thus, in enacting grievance procedures, women and supervisors construct a legality in particular workplaces that offers only limited protection for women's rights.

Kimberly Ellerth was a salesperson for Burlington Industries in Chicago. Her supervisor, Ted Slowik, subjected Ellerth to a stream of offensive remarks and gestures and suggested several times that her job depended on complying with his sexual demands. Just before Ellerth quit, Slowik said, "Are you wearing shorter skirts yet, Kim, because it would make your job a whole lot easier" (Burlington Industries, Inc. v. Ellerth 1998:747-8). Ellerth resigned, but only informed Burlington three weeks later that her reason for leaving was Slowik's harassing behavior. Like many women confronting sexual harassment, Ellerth relied on a variety of strategies to cope with Slowik's conduct. She confided in her husband and her parents; she told colleagues and clients. Once, she confronted Slowik directly and told him that his comments were inappropriate. But Ellerth never complained to other supervisors, even though she knew that Burlington had an anti-sexual harassment policy. She claimed that she was afraid that pursuing a complaint would jeopardize her job (Burlington Industries, Inc. v. Ellerth 1998).

Ellerth's case presents a number of interesting empirical and theoretical questions about the role of law in everyday encounters with sexual harassment. For example, her experience illustrates the many different tactics that women use when confronting sexual conduct at work, most of which involve trying to avoid the harasser and seeking emotional support to cope with the situation. Ellerth's case also shows how the law on the books often promises more than law in action can actually deliver (Bumiller 1988; Quinn 2000). When women like Ellerth fear retaliation for exercising their rights, then the remedial policies and procedures may be inadequate to address the underlying problems.

Many significant law and society studies have documented patterns of legal mobilization among average people confronting conflict in their daily lives (Jacob 1969; Felstiner, Abel, & Sarat 1980-81; Kritzer, Vidmar, £ Bogart 1991; Zemans 1983; Curran 1977; Bumiller 1988). These studies have demonstrated that although legal rights and entitlements may be formally available, they are rarely invoked. There can be considerable difference between what people are entitled to under law and what they actually receive (Zemans 1983; Jacob 1969). Thus, this article fits into a long tradition of exploring this gap between the law on the books and the law in action, but it builds on this tradition by including in the "law in action" the meaning-making activities of ordinary women confronting unwanted sexual attention.

In this study, I examine rights at work in a grievance procedure in a single workplace. I adopt a legal consciousness perspective that emphasizes the experiences of employees with complaints about unwanted sexual attention from co-workers and supervisors. Indeed, this study confirms that management interpretations shape the way supervisors implement the policy, although in this case, supervisors act to discourage complaints rather than to offer dispute resolution assistance to aggrieved employees (Edelman, Erlanger, & Lande 1993). …

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