Last week Judge Posner and Professors Nussbaum and Case faced off in a much-anticipated debate entitled "Posner Answers the Feminists" (moderated by Professor Stone). The talk (which you can listen to here) was inspired by articles written by Nussbaum and Case for a Symposium published by the University of Chicago Law Review commemorating Posner’s 25 years on the bench. Both professors wrote on the topic of Posner’s sexual harassment jurisprudence. See here for Case’s article and here for Nussbaum’s.
But what began as a discussion about specific sexual harassment opinions seemed to transform into a debate over the state of feminism in the United States. Posner questioned whether feminism is still a "live issue" in the United States given his view that women are outperforming men at all educational levels and forging ahead in all professions, including in the military. In Posner’s words, women are now dropping bombs on people "just like the boys." "If that isn’t equality," he joked, "I don’t know what is."
Nussbaum pointed out that although women have made great strides in the United States, the U.S. continues to have one of the lowest percentages of female representation in the legislature and one of the highest rates of sexual violence against women among developed nations. And in certain realms, Nussbaum noted, society’s technological progress has not been mirrored with social progress: the Internet is creating new problems for women who are the most common targets of online harassment.
The extent of women’s progress in the United States seems like more of a sociological debate than a legal one. Posner’s claim that women are outperforming men at all educational levels seems at least anecdotally suspicious in certain fields. Let’s look close to home: in recent years, although women comprise about 50 percent of the incoming law school class at the University of Chicago, they tend to represent about 30 percent of law review members, about 25 percent of law review board members, and an even smaller percentage of the school’s federal circuit court clerks. The reasons for these disparities may be complex, but they continue to exist nonetheless.
But beyond the sociological debate over women’s progress seemed to be a more nuanced debate over whether certain problems women currently face are the kind of grievances that deserve legal remedies. Posner quickly agreed with Nussbaum that women still face serious problems of sex discrimination, sexual harassment, and sexual violence. Posner noted that for these serious problems, we correctly have legal remedies in place. But, he challenged the idea (which he attributed to the "feminist agenda") that there should be legal remedies that go beyond these serious problems to deal with what he characterized as "fringe, esoteric areas" like worrying about the modesty of women, which he considered outdated. Posner indicated that he considered Case’s work on public toilets (which she discusses here) to be one of these "fringe, esoteric" areas. Case argued that Posner doesn’t see equal rights of women as much of a value based on her analysis comparing two of Posner’s opinions, one involving the failure of an employer to provide a female employee with bathroom facilities and another involving the rights of a male prisoner at risk of observation by female guards while showering or using the toilet. For a better understanding of their contentious disagreement, see Case’s symposium piece.
Nussbaum’s critique of Posner’s sexual harassment jurisprudence focused, in part, on his willingness to consider power dynamics in evaluating the facts of some, but not all, sexual harassment cases. Nussbaum praised Posner for his decision in Carr v Allison Gas Turbine Division, General Motors Corp, in which he rejected General Motor’s claim (and the lower court’s ruling) that the sexual harassment at issue had been "invited" by the plaintiff’s own foul language and "unladylike" behavior. Posner, who felt it was clear that the men were trying to drive the woman out of the workplace, said it was necessary to consider the "asymmetry of positions" in analyzing the facts of the case. Because the plaintiff was a lone woman, working among many men, "her use of the word ‘fuck head’ could not be deeply threatening, or her placing a hand on the thigh of one of her macho coworkers intimidating," Posner wrote in the opinion. Nussbaum praised Posner’s for recognizing that "[i]f the vulgarism comes from the powerless, it is not intimidating; if it is from the powerful, as part of a campaign of intimidation and humiliation, it is." In other words, the identity of the speaker can be as important as the content of the words when analyzing the meaning of vulgar behavior.
Nussbaum also praised Posner’s opinion in Carr for being both novel and theoretically important because she believed it established clearly, for the first time, that hostile environment sexual harassment can exist even when the harassment in question is not focused on sexual relations. The plaintiff’s coworkers harassed her because she was a woman, with remarks that were derogatory to women, but there was clearly no attempt to sexually proposition her or to treat her as a sexual object. Nussbaum praised Posner for "boldly go[ing] where no judge had gone before, into the very heart of sexual harassment: power, not favors; intimidation, not eroticism."
But Nussbaum criticized Posner for forgetting these insights in the later case of Baskerville v Culligan International Co (which, for simplicity’s sake, could essentially be renamed Pam Beesly v Michael Scott). In that case, a secretary accused her supervisor, "whose sense of humor took final shape in adolescence," of sexual harassment based on a series of incidents over a seven-month period. For example, the supervisor repeatedly referred to the plaintiff as a "pretty girl," on one occasion made odd grunting noises at her when she turned to leave his office, and on another made hand gestures that intended to suggest masturbation. Although Nussbaum believed Posner correctly concluded that the "buffoonish" behavior most likely did not amount to sexual harassment, she noted with disappointment his failure to analyze the power dynamics between the plaintiff and her boss in considering the true meaning of the supervisor’s words and gestures.
Posner insisted that there was simply no reason to consider power dynamics in Baskerville because there was no allegation that the secretary had "invited" the behavior by responding in kind. As a result, there was no reason to discuss an issue that did not arise. Nussbaum responded that context should always matter because the fact that the plaintiff was being harassed by her supervisor created an implicit threat that should have been considered. Moreover, she argued, the female-male power dynamic of the office as a whole might be important: a situation where the plaintiff was the only female employee in the office might look very different than a situation where the office employed many females in positions of significant power.
Posner’s remarks indicate that he believes "asymmetry of position" is only relevant when analyzing a plaintiff’s vulgar behavior (as opposed to a defendant’s). It is interesting that Posner failed to include analysis of the relative power dynamics in Baskerville, because he was mindful of the importance of many other elements of context. In Baskervillehe wrote:
Remarks innocuous or merely mildly offensive when delivered in a public setting might acquire a sinister cast when delivered in the suggestive isolation of a hotel room. So too remarks accompanied by threatening gestures or contorted facial features, or delivered from so short a distance from the listeners face as to invade the listener’s private space . . . . Even a gross disparity in size between speaker and listener, favoring the former, might ominously magnify the impact of the speaker’s words.
It's unclear why it would be appropriate to consider a speaker's size but not his identity when evaluating the true meaning (or impact) of his words. Let’s again enter a familiar setting: would a sexual or derogatory comment made by one summer associate to another not gain an entirely more threatening meaning when made by a partner? Does it seem significant if this is the first female summer associate the firm has ever hired, or if she is one of 50 women in a class of 100? A failure to consider this context seems just as problematic as a failure to consider the speaker’s physical size or facial features.
Ultimately, it is hard to disagree with Posner’s claim that women have made significant progress in the United States. The very nature of last week’s debate, two accomplished female professors criticizing one of the country’s most noted male jurists, illustrates the point. But that doesn’t mean that the debate over how to best interpret and apply the sexual harassment laws that have helped attain this progress is moot. As with most debates, the parties involved reached little consensus. But hopefully last week’s debate illustrated not only how far women have come, but also how important it is for us to maintain and consistently improve upon that progress.