9 Colum. J. Eur. L. 241 (2003)
Gabrielle S. Friedman. Law Clerk to the Hon. Gerard E. Lynch, U.S. District Judge, Southern District of New York.
James Q. Whitman. Ford Foundation Professor of Comparative and Foreign Law, Yale University.
Workplace “harassment” is now regarded as an evil in every western country. But exactly what class of persons is threatened by “harassment”? And exactly what evil does the law forbidding “harassment” aim to combat? The best-known, and internationally most influential, use of the term “harassment” comes from American law. In the American conception, “harassment” is a form of discrimination, a way of tormenting members of minority and other disadvantaged groups seeking upward social mobility through work. Laws forbidding such harassment first appeared as a way of protecting racial minorities in the United States.’ But today the law’s most frequently discussed target is sexual harassment, harassment inflicted upon people (most especially upon women) on account of sex. This American law of harassment has had a stunning international influence, at least on paper. The American example has inspired the passage of statutes all over the world — not least in continental Europe where, prodded by the European Union, every country now has law forbidding harassment on the basis of sex.
Nevertheless, the truth is that most continental lawyers have never been terribly comfortable with the American concept of harassment. Sexual harassment in particular has had a rocky reception. Cases of sexual harassment have probably never been very actively pursued. Moreover, Europeans have never really accepted the doctrinal theory according to which sexual harassment is a form of discrimination. Although continental statutes often declare sexual harassment to be a form of discrimination against women, continental lawyers have always tended to focus on a rather different formula: the “dignity of women. Moreover, if the American model of harassment law has always been weak in continental Europe, it has started to get a lot weaker over the last few years. Indeed, as we want to report in this essay, continental harassment law is in the midst of a transformation. Instead of condemning the discriminatory harassment of particular protected groups in the American way, continental law is increasingly condemning employee harassment. To the question, what class of persons is threatened by harassment?, continental law today increasingly gives the answer: not just women, not just minorities, but employees in general. At the same time, the continental tendency to speak of “dignity” rather than of “discrimination” is being reaffirmed and deepened. To the question, what evil does the law of harassment aim to combat?, continental law increasingly gives the answer: not discrimination, but violations of individual dignity.
The latest sign of the shift came in France, where the Penal Code was amended as of January 2002. Where the French Penal Code used to include only a paragraph criminalizing sexual harassment, it now includes a paragraph criminalizing “moral” harassment — criminalizing all forms of harassment that can impair “the rights or the dignity” of any employee. This French shift is only the most recent example ofsomething that is sweeping the continent. Like France, all continental countries continue to maintain some prohibition on sexual, and usually racial, harassment. But these forms of discriminatory harassment are no longer the only target of continental law, nor even the main target. On the contrary, the prohibition on racial and sexual harassment is only one part, and a decreasingly important part, of the continental law forbidding workplace harassment more generally. It is becoming common coin, in continental law, that employers must be forbidden to harass their employees — to shout at them or humiliate them — and that they must be forbidden to harass all of their employees. Nor are employers the only target. Continental law is also concerned with the way employees treat each other: It is also becoming commoncoin that employees must be forbidden to harass their co-workers as well.
This movement is driving continental law in a very different direction from American. In particular, as we want to show, the continental movement against employee harassment is beginning to submerge the movement against sexual harassment: Sexual harassment, in the eyes of most contemporary European observers, is becoming simply one variety of employee harassment — and not necessarily the most important variety either. This is not because the law of employee harassment is always consciously conceived as a competitor to the law of sexual harassment. Often the shift is simply a defacto one, from a focus on women, to a focus on workers generally. But the shift is tking place. Protection for workers is beginning to swamp protection for women in continental Europe.
Our aim is to explain why this is happening, and to assess its significance for our understanding of the nature and dynamic of “harassment” law. In effect, there are now two paradigms for harassment law in the western world: an American anti-discrimination aradigm and a Continental dignity paradigm. In principle these two paradigms should not be mutually exclusive. It ought to be possible both to condemn discrimination and to further individual dignity. Yet the Continental experience suggests that it may be difficult for these two paradigms to coexist. This is troubling indeed for those American scholars, ourselves among them, who believe that harassment law should be about the protection of dignity. We may not be able to pursue the goals of dignity without sacrificing some or all of the goals of anti-discrimination.
The Continental experience also suggests some lessons about the transplantation of legal institutions. The idea of attacking “harassment” through law was imported into the continental countries from the United States; but that does not mean that American ways of doing things have been accepted in places like Germany and France. Once a legal institution like harassment law has lodged in foreign legal soil, it can flower into almost unrecognizable forms. This may bode ill for the effort to bring American-style feminism to other parts of the world. In particular, European feminists who imagine that they are importing the American law of sexual harassment into their countries may discover that their import disturbs the local legal ecology in wholly unanticipated ways. also always targeted harassment on the basis of race. Nevertheless, it is sexual harassment that today commands the lion’s share of attention both in the law and in popular culture, and we are going to focus on it, too, in describing the growing contrast between American and European regimes. For our comparative purposes, two aspects of American sexual harassment law deserve emphasis. First, American sexual harassment law is law against discrimination, modeled in an obvious way on the campaign against racial discrimination. Second, American sexual harassment litigation focuses primarily on hiring, termination, and advancement, rather than on the terms and conditions of continued employment.
The analysis of sexual harassment as a problem of discrimination follows from the statutory language of Title VII of the Civil Rights Act of 1964, which makes it “an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” Nevertheless, it has never been wholly uncontroversial. There have always been commentators who thought that calling sexual harassment a form of sex discrimination was odd. After all, “discrimination,” as American law conceives of it, means putting obstacles in the way of people seeking to gain employment and advancement — tripping up people who want, in the words of the Supreme Court, to be “allowed to work and make a living.” Yet “harassment,” in the ordinary sense of the term, involves a different sort of harm. It involves subjecting people to “ridicule and insult,” in ways that are painful and injurious regardless of whether the victims succeed in their pursuit of a good job. This has led commentators like Anita Bernstein and Rosa Ehrenreich to argue that sexual harassment law should address the evils of dignitary harms as well as, or instead of, the evils of discriminatory harms. Other commentators see other problems with the anti-discrimination paradigm as well. In particular, they are distressed by any requirement of showing discriminatory intent.” Nevertheless, “discrimination” remains the focus of American law.
American law also shows a distinct focus on problems of hiring, termination and advancement, rather than on problems of the terms and conditions of stable employment. This is a point that is especially important for comparative purposes. American law tends to presuppose a relatively fluid job market, in which employees seemed to elicit only lip-service in Europe.’ To be sure, the letter of European law spoke, and speaks, of “discrimination,” just as the letter of American law could be said to speak, if only obliquely, of “dignity.” But one cannot read the law by the letter while omitting the emphases, and the emphases already differed much by the mid-1990s.