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Directions in Sexual Harassment Law$

Catharine A. MacKinnon and Reva B. Siegel

Print publication date: 2003

Print ISBN-13: 9780300098006

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300098006.001.0001

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The Racism of Sexual Harassment

The Racism of Sexual Harassment

Chapter:
(p.479) 28 The Racism of Sexual Harassment
Source:
Directions in Sexual Harassment Law
Author(s):

Tanya Katerí Hernández

Publisher:
Yale University Press
DOI:10.12987/yale/9780300098006.003.0029

Abstract and Keywords

This chapter discusses the court's view of sexual harassment as a transgression without color. Sexual harassers are presumed to be color blind in their selection of victims, and sexual harassment is generally viewed as a civil rights violation in which issues of race are irrelevant. The centrality of racialized gender stereotypes in the manifestation of sexual harassment, however, may indicate that sexual harassment does discriminate by race. Scholars have noted that the operation of racialized gender stereotypes conceptually distinguishes “pure” White women from “wanton” women of color. This is a distinction described by Beverly Balos and Mary Louise Fellows as the “prostitution paradigm,” a consideration of which within the sexual harassment context explains the rationale for the seeming racial disparity in rates of sexual harassment.

Keywords:   court's view, sexual harassment, transgression without color, color blind, selection of victims, issues of race, racialized gender stereotypes, Beverly Balos, Mary Louise Fellows, prostitution paradigm

Despite the fact that early on the groundbreaking book Sexual Harassment of Working Women observed the salience of racism to the occurrence of sexual harassment,1 sexual harassment has by and large been viewed by courts as a transgression without color. Sexual harassers are presumed to be color blind in their selection of victims, and sexual harassment is generally viewed as a civil rights violation in which issues of race are irrelevant.2 Yet a recent statistical analysis of the filing rates of sexual harassment charges suggests otherwise.3

The comprehensive study analyzes Equal Employment Opportunity Commission (EEOC) sexual harassment charge statistics, by looking at data from 1992 to 1999 along with Lexis-Nexis and Westlaw electronic reports of sexual harassment complaints from 1964 to 2000. What immediately becomes apparent in this statistical analysis of sexual harassment charges in the United States is the overrepresentation of women of color and the “underrepresentation”4 of White women in the charging parties when compared with their demographic presence in the female labor force.5 Although a number of factors may very well be causally connected to the disproportionate patterns in female sexual harassment filing statistics by race, primary among the likely causal factors is the powerful influence of racialized gender stereotypes. Indeed, the centrality of racialized gender stereotypes in the manifestation of sexual harassment may indicate that sexual harassment does discriminate by race.

(p.480) Scholars have noted that the operation of racialized gender stereotypes conceptually distinguishes “pure” White women from “wanton” women of color. This is a distinction described by Beverly Balos and Mary Louise Fellows as the “prostitution paradigm.”6 A consideration of the Balos and Fellow's prostitution paradigm within the sexual harassment context elucidates the rationale for the seeming racial disparity in rates of sexual harassment—the policing of gender through the hierarchy of race. After an exposition of the statistical data, this essay will analyze how the prostitution paradigm, and the intersectional race and gender approach it relies upon, demonstrates the role of race in the subjugation of all women through sexual harassment.

The Statistical Racial Pattof Sexual Harassment

In a study of 1992 EEOC sexual harassment statistics, the Center for Women in Government at the University of Albany reported that Black women complainants accounted for 14.4 percent of sexual harassment charges, women of other races (not specified) accounted for 14.7 percent of sexual harassment charges and White women accounted for 61.9 percent.7 Although White women complainants accounted for the vast majority of EEOC sexual harassment charges, in racially comparative terms White women are underrepresented as complainants. Specifically, White women accounted for only 61.9 percent of the sexual harassment charges in 1992, even though they made up 84.8 percent of all women employed in the civilian labor force in that same year.8 Furthermore, the data indicates an overrepresentation of women of color as complainants in comparison to their representation in the female labor force. Black women, at the time the studied statistics were gathered, made up only 11.5 percent of all women employed in the civilian labor force and yet they accounted for 14.4 percent of the sexual harassment charges.9 Other women of color only made up 3.7 percent of women employed in the civilian labor force but accounted for 14.7 percent of the sexual harassment charges.10 Particularly troubling is the fact that the 1992 EEOC data were not an aberration.

My own analysis of EEOC sexual harassment charge statistics from 1992 through 1999 indicates that the race-based disparity in filing charges is a pattern among women who filed EEOC charges.11 Similarly, after surveying federal court cases from the First through Sixth Circuits containing sexual harassment allegations through summer 2000,12 I discovered that since the inception of the sexual harassment cause of action, the same racial pattern emerged among female plaintiffs.13

In the United States, the amount of variation between the observed numbers of sexual harassment charges by race and the expected number of sexual harassment (p.481) charges based on racial demographic percentages of the population is considerable for each year of data.14 The Supreme Court has acknowledged that, as a general rule, for sample sizes larger than thirty, if the difference between the expected value and the observed value is greater than two or three standard deviations, then a social scientist would view the data as not being the result of pure chance.15 The average sample size for each year of EEOC data analyzed in my study was 13, 051.5, and the average sample size for each circuit of federal cases analyzed was 97.16 The standard deviation for White women ranged from 71.5 to 84.4 and from 31.5 to 66.7 for women of color. The statistical probability of such extraordinarily large standard deviations occurring in a normal distribution is approximately zero.17 Therefore, although a number of factors could plausibly contribute to the racial disparity in sexual harassment charge statistics, the existence of some correlation between rates of sexual harassment and race-based decision-making on the part of harassers merits closer examination. What the data suggests is that sexual harassers may target White women as victims at disproportionately lower rates than women of color. This conclusion is consistent with some of the few empirical studies to specifically focus on the influence of race on sexual harassment.18

Although there is no mechanism to absolutely determine whether the number of complaints of sexual harassment faithfully reflect the actual rates of sexual harassment in society,19 the sexual harassment charge statistics suggest a general pattern of racial disparity that is highly significant given its consistency over the years.20 The analysis of charge statistics also has the advantage of being able to draw upon data generated from one consistent definition of sexual harassment.21 In contrast, social science researchers have observed widely varying sexual harassment statistics depending on the definition chosen by the designer of a study.22 Furthermore, the empirical alternative of solely examining the data from successfully litigated cases suffers the weakness of grossly underestimating the societal occurrence of sexual harassment. The mechanism that pushes the majority of legal charges to settlement before litigation in court is also present in sexual harassment cases. In addition, the nature of the sexual harassment claim, with its ability to harm the reputation of the victim herself, works to artificially deflate the number of sexual harassment cases because it discourages many victims from filing meritorious charges.23 Many of those victims who do decide to file a charge are later dissuaded from continuing to pursue their claims.24 In fact, from 1992 to 1999, 32 to 49 percent of EEOC sexual harassment charges were administratively closed without any substantive resolution of the charge.25 Thus, given the known difficulties of pursuing a sexual harassment claim, using EEOC charge statistics and federal court sexual harassment allegations as a (p.482) rough indicator of the existing patterns of sexual harassment in society may very well underestimate rather than overestimate the actual rate of sexual harassment.

Early Explanations for the Statistical Pattern

Before 1992, descriptive evidence existed indicating that women of color were disproportionately represented among the female population of early sexual harassment complainants.26 Catharine MacKinnon's early observations about the role of racism in sexual harassment were based on her extensive work with Black women, many of whom had been sexually harassed. At the time, MacKinnon and later Kimberlé Crenshaw theorized that the racialized nature of sexual harassment women of color experienced made it easier for them, and for Black women in particular, to conceptualize their victimization as sexual harassment, whereas White women might have experienced greater difficulty in articulating their experiences as something other than overly aggressive dating overtures.27 Since then, political scientist Anna-Maria Marshall's study of all pivotal sexual harassment cases has begun to provide an empirical validation of the descriptive evidence.28 Marshall has similarly theorized that Black women's “heightened consciousness around issues of race may have also made the law a more salient resource” in challenging their experiences of sexual harassment.29

After 1992, it became harder to rely upon that conjecture as the sole explanation for the continuing racial disparities in female sexual harassment charge statistics for several reasons. In October 1991, the publicly aired testimony of Anita Hill during the Clarence Thomas Supreme Court confirmation hearing raised public awareness about the nature of sexual harassment.30 In addition, Congress enacted the Civil Rights Act of 1991, which allows sexual harassment plaintiffs in all states to recover compensatory and punitive damages.31 Thereafter, the EEOC published a layperson-friendly four-page pamphlet entitled Questions and Answers About Sexual Harassment, which started the public campaign to bring greater awareness of the nature of sexual harassment to the public at large and to the many employers who began instituting sexual harassment policies of their own.32

In short, since 1991, not only are all women in the United States better informed about the existence of a sexual harassment cause of action,33 but they are also better educated about the ways in which its manifestations give rise to a remedy at law. The view of sexual harassment as a legal claim is “now part of the national consciousness.”34 In fact, the number of sexual harassment charges increased approximately 112 percent from 1989 to 1993 (moving (p.483) from 5,623 to 11,908 over the four-year period), with 1992 being the year of the greatest single increase when charges went up 53 percent.35 Not only have the annual number of sexual harassment complaints filed with the EEOC more than doubled since 1989,36 the EEOC reports that sexual harassment is the fastest growing area of employment discrimination.37 Therefore, the racial disparity in sexual harassment charge statistics can no longer be correlated solely with the “benefit” women of color have in experiencing sexual harassment as a more “easily recognizable” racial hostility.

A number of empirical studies also dispute the premise that women of color are more prone to file sexual harassment charges than White women who experience the same victimization.38 In fact, those social scientists that have discussed the role of race in sexual harassment observe that women of color may actually have a tendency to underreport instances of sexual harassment.39 This is true despite empirical studies that suggest that women of color are disproportionately targeted as sexual harassment victims.40 In fact, at least one study suggests that White women tend to perceive incidents of sexual harassment as more serious than women of color do41 and classify a broader range of behaviors as sexual harassment.42 Some psychologists theorize that because women of color are accustomed to racist and sexist behavior in the workplace, they may be less prone to immediately filing a sexual harassment complaint.43 One study in particular found that sexual harassment victims are more likely to use internal coping methods when the harasser is outside of their racial or ethnic group44—of particular salience to women of color, who are primarily victimized in the workplace by White men.45 Therefore, when a geographically diverse sample of Black working women was surveyed, the study found that Black women see Black male subordinates and supervisors as more harassing than White males with the same job status.46 Consequently, no support was found for the hypothesis that Black women were more likely to report a White harasser than a Black harasser.47 Similarly, another study concluded that while being employed empowers White women to challenge dominant gender role attitudes, it does not have the same effect for women of color and Black women in particular.48 In addition, the argument that the racial disparity in charge statistics is primarily the result of the lower socioeconomic status of women of color is undermined by examining the prevalence of sexual harassment across all occupational levels,49 and the observation that women with fewer resources tend to respond in an indirect manner rather than file formal complaints.50 Furthermore, one study that measured sexual harassment across occupational groups still found that 16.6 percent of White women indicated they had been sexually harassed in comparison to 48.6 percent of Black women.51 This finding is consistent with the work of sociologist James (p.484) Gruber, who asserts that occupational status does not greatly influence women's responses to sexual harassment.52 Nor does the education level of the victim appear to have a significant impact on victim selection.53 In contrast, Gruber states that the severity of harassment is a stronger predictor of a woman's willingness to report the incident.54 What remains to be explored is the premise that women of color's disproportionate filing of sexual harassment complaints may be a result of enduring more severe experiences of sexual harassment, which thereby compel formal resolution.55 But whether the racially disproportionate filing statistics can be explained as a consequence of greater severity or as a reflection of a higher rate of sexual harassment for women of color, both scenarios implicate the central importance of racial attitudes in sexual harassment victimization.

The Prostitution Paradigm Lens into Sexual Harassment

Beverly Balos and Mary Louise Fellows theorize that assumptions about prostitution underlie societal attitudes about violence against women.56 Balos and Fellows argue that there is a “continuum of violence” against women made up by sexual harassment, domestic abuse, and rape.57 The response to the continuum of violence is informed by what they refer to as a “prostitution paradigm.”58 In effect, the prosecution of violence against women reflects a paradigm in which a dichotomy between “respectable” and “degenerate” women is constructed, preserving legal protection only for those women who successfully demonstrate their respectability by distancing themselves from the image of prostitution.59

The sexual harassment context particularly illustrates the prostitution paradigm in that sexual harassers frequently equate their victims with women in prostitution and refer to prostitution in the victimization of their targets.60 Catharine MacKinnon, the scholar who most influenced the legal understanding of sexual harassment as a form of gender discrimination,61 stated early on that a “great many instances of sexual harassment in essence amount to solicitation for prostitution.”62 There appears to be, at least implicitly, some judicial acceptance of the prostitution paradigm. For example, courts continue to consider a plaintiff's provocative speech and dress in the assessment of whether the harassment was unwelcome conduct.63 This legal standard condemns those women whose speech and conduct remotely resemble the stereotypical conduct of women in prostitution.

Critical to the Balos and Fellows theory is their observation that societal reliance upon racialized gender stereotypes is instrumental in the maintenance (p.485) of the prostitution paradigm.64 Women of color are stereotyped as oversexed and wanton and thus the quintessential prostitute, in contrast to the depiction of White women as inherently respectable and pure.65 These racialized stereotypes motivate the disproportionate recruitment of prostitutes in the United States from communities of color.66 Similarly, the globalized prostitution context reveals an intentionally disproportionate preference among sex tourists for prostitutes of color.67

Thus Catharine MacKinnon's early observation that Black women are the most vulnerable to sexual harassment, in part because of societal stereotypes about their sexual accessibility,68 may be relevant in analyzing the racial disparities in sexual harassment charges by all women of color. I am not suggesting that White women are infrequently targeted for sexual harassment. In fact, White women have filed a significantly greater total number of sexual harassment claims each year than women of color.69 What the racially disproportionate charge rates may suggest is that the social meaning of sexual harassment has a racial component. Accordingly, racialized sexual harassment is what happens to White women even if they are not cognizant of it in that way. This is true because being treated as a White woman has everything to do with how women of color are treated.70 As Sherene Razack and Mary Louis Fellows explain, a category of “respectable” women can exist only as long as a category of “degenerate” women exists.71 Racism facilitates the construction and maintenance of the gender manacles of respectability and degeneracy by redeploying the historical legacy of racialized gender stereotypes.72

This is not to suggest that all women experience sexual harassment in the same way, but rather to underscore how race has everything to do with sexual harassment generally. In other words, when White women are sexually harassed in order to maintain the workplace as a masculine domain, male peers and supervisors treat them “like colored women.”73 In short, all women are policed and subjected to the imposition of gender norms, with the threat of becoming ensnared by the prostitution paradigm.

The racialized aspect of the prostitution paradigm is particularly evident in the globalized prostitution context. For instance, sex tourist guidebooks and websites describe themselves as appealing to “the man who is attracted to women from different cultures, who wants to explore relationships with a woman who can offer a unique insight into life.”74 They also rank Asia, Brazil, Mexico, the Caribbean, and Costa Rica as the best locations to meet “good girls, bad girls, and good girls you convince to be bad girls!”75 In fact, the globalized prostitution context is explicit in its deployment of racialized sex stereotypes and their function to police gender for all women. This is best (p.486) exemplified by the article for sex tourists entitled Why No White Women? which purports to explain the common sex tourist preference for women of color:

Q.

  • Is it because white women demand more (in terms of performance) from their men during Sex? and white men cannot deliver?
  • A:

  • In my case, it's just that my dick is not long enough to reach them up on the pedestal they like to stand on.76
  • The racially laden prostitution paradigm that informs sex tourism and sexual harassment reveals that efforts to dismantle gender subordination must take into account the role of race. The racial disparity in the sexual harassment charge statistics underscores the importance of examining the link between race and gender in the use of sexual harassment as a “technology of sexism.”77 This is significant to all concerned about societal oppression.

    Notes

    (1) . See Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination 53 (1979) (describing Black women as “most vulnerable to sexual harassment, both because of the image of black women as the most sexually accessible and because they are the most economically at risk”).

    (2) . Sumi K. Cho, “Converging Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suzie Wong,” 1 Iowa J. Gender, Race and Justice 177, 209 (1997) (“the law's current dichotomous categorization of racial discrimination and sexual harassment as separate spheres of injury is inadequate to respond to racialized sexual harassment”).

    (3) . Tanya Katerí Hernández, “Sexual Harassment and Racial Disparity: The Mutual Construction of Gender and Race,” 4 Iowa J. Gender, Race and Justice 183 (2001).

    (4) . My use of the term “underrepresentation” in the presentation of the racially comparative statistical data is not meant to suggest that White women should be victimized with greater frequency, but solely to depict the ways in which the sexual harassment statistics indicate significantly distinctive patterns for White and non-White women.

    (5) . See Hernández, supra note 3, at 217–224, apps. I–V. The statistical data discussed in this essay contrasts White women and women of color as an aggregate for two reasons. First, the EEOC data collection presents statistics only for White, Black and “Other Race” women, in which Latinas, Native Americans, and Asian Pacific women are collapsed. Telephone interview with Pierrette Hickey, Director of the Charge Data System Division, EEOC Office of Communications (June 6, 2000). Beyond the pragmatic constraints of not having disaggregated data available for “Other Race” women, a comparative analysis of the ways in which racial stereotypes are used to sexualize women of color as a collective and to imbue their sexualization as an inherently interchangeable commodity supports the binary comparisons of White women with the collective of women of color. These binary comparisons are not made for the purpose of collapsing the particular experiences of various racial minority groups, but rather for the purpose of illustrating their common oppression.

    (p.487)

    (6) . Beverly Balos and Mary Louise Fellows, “A Matter of Prostitution: Becoming Respectable,” 74 N.Y.U. L. Rev. 1220, 1227 (1999) (arguing that “prostitution functions as a paradigm for degeneracy” and “as a practice of inequality” in order to maintain the distinction between pure and wanton women).

    (7) . Cost of Sexual Harassment to Employers Up Sharply: More Employees are Bringing Charges and Receiving Compensation for Damages (Center for Women in Government, University of Albany, Albany, N.Y.), Spring 1994 (hereinafter Cost of Sexual Harassment). Men of all races account for the remaining 9 percent. Id.

    (8) . See Bureau of the Census, U.S. Department of Commerce, Statistical Abstract of the United States: 1993, at 409 (listing total female employment in 1992 at 45,381,000 and the White female employment at 38,481,000).

    (9) . Id. (listing the number of Black women who were employed civilians in 1992 as 5,231 and the total number of females employed as 45,381).

    (10) . Compare id. (including women of “other races” in the total number of women employed), with Cost of Sexual Harassment, supra note 7 (finding women of other races accounted for 14.7 percent of the sexual harassment charges).

    (11) . See Hernández, supra note 3, at 217–222, apps. I–III.

    (12) . This information is available on the electronic databases of Lexis-Nexis and Westlaw.

    (13) . See Hernández, supra note 3, at 223–224, apps. IV–V. I chose to analyze federal sexual harassment complaints originating in the First though Sixth Circuits because those circuits encompass jurisdictions where women of color are fairly represented and are thus better indicators of racial patterns in filing statistics.

    (14) . It is interesting to note that transnational studies of sexual harassment also suggest a racial disparity in sexual harassment victimization. See Azy Barak, “Cross-Cultural Perspectives on Sexual Harassment,” in Sexual Harassment: Theory, Research and Treatment 263, 276 (William O'Donohue ed., 1997) (enumerating studies in Zimbabwe, the Netherlands, Australia, and South Africa which suggest a higher incidence of sexual harassment among women of color).

    (15) . See Castaneda v. Partida, 430 U.S. 482, 497 n.17 (1977).

    (16) . See Hernández, supra note 3, at 220, 223, apps. II, IV.

    (17) . See Jay Devore and Roxy Peck, Statistics: The Exploration and Analysis of Data 209, 211 (3d ed. 1997) (explaining how the probability that any standard deviation which exceeds 3.89 can practically be considered zero because 99 percent of the time the variance between an expected value and an observed value is three standard deviations or less, and thus any standard deviation which exceeds that range is an extreme probability); see also R. A. Fisher, Statistical Methods for Research Workers 43 (1946) (observing that the frequency of standard deviations beyond 3.0 are exceedingly small).

    (18) . See, e.g., Constance Thomasina Bails, “Female Reactions to Sexual Harassment in the Workplace and the Impact of Race,” at v (1994) (unpublished Ph.D. dissertation, Temple University) (on file with author) (concluding from a study of 208 civilian female employees at the Philadelphia Naval Shipyard that “Black females experienced more sexual harassment proportionately than their counterparts”); Lilia M. Cortina et al., “Sexual Harassment and Assault: Chilling the Climate for Women in Academia,” 22 Psychol. Women Q. 419, 428 (1998) (demonstrating how in a study of 1,037 female (p.488) undergraduate and graduate students, Black and Latina women reported the highest incidence of sexual harassment despite sharing a common definition for sexual harassment across races).

    (19) . Any analysis of patterns in the filing of legal complaints will contain a certain amount of uncertainty because of the inability to know whether each complaint filed is meritorious, and also how many instances of sexual harassment never resulted in a legal complaint at all. Given the inevitable potential for both overinclusion and underinclusion in estimated rates of sexual harassment, this study seeks to highlight those general patterns in the data that are so highly suggestive of racial disparity that they are both statistically and legally significant. Just as gross statistical disparities may sometimes constitute prima facie proof of a pattern or practice of discrimination, statistical disparities in the presumed rates of sexual harassment are highly probative of the role of race in the incidence of sexual harassment. See Int'l Bd. of Teamsters v. United States, 431 U.S. 324, 339 (1977) (detailing the value of statistics in pattern or practice discrimination suits under Title VII of the Civil Rights Act of 1964).

    (20) . Data regarding the existence of racial disparity in the increased rates of sexual harassment complaints after the large-scale publicity of the Clarence Thomas confirmation hearing also lends greater credibility to the presumed parallel between the racial pattern in sexual harassment charges and the actual dynamics of sexual harassment victimization. From 1992 to 1999 the rate of increase in sexual harassment charges filed by women of color was 99.3 percent, while the rate of increase for White women was only 35.6 percent. See Hernández, supra note 3, at 221, app. III. In effect, the continued racial disparity in filing rates suggests that the same racial disparity may exist within the actual societal rates of sexual harassment. Moreover, the racial disparity demonstrated in the federal cases analyzed is in all likelihood a conservative depiction of the racial disparity in actual rates of sexual harassment because of my empirical decision to attribute those cases that did not specify the race of the plaintiff to the population of White women plaintiffs. I based this decision on the documented tendency that Whites have to view their Whiteness as invisible and not a race at all. See, e.g., Bonnie Kae Grover, “Growing up White in America?” in Critical White Studies: Looking Behind the Mirror 34, 34 (Richard Delgado and Jean Stefancic eds., 1997) (“White is transparent. That's the point of being the dominant race. Sure, the whiteness is there, but you never think of it. If you're white, you never have to think of it”). Therefore, my count of cases involving women of color overlooks those cases in which a woman of color did not think to specify her race and those instances in which the federal judge did not view a woman of color's racial classification as salient to the sexual harassment complaint being litigated. See Cho supra note 2, at 209 (discussing the difficulty women of color have in educating judges about racialized sexual harassment). Given my conservative approach in the collection of the data, the overrepresentation of women of color in federal court case filings is especially remarkable. Furthermore, sexual harassment lawyers have observed that the difficulty judges and juries have in appreciating the permutations and harms of racialized sexual harassment leads to a predisposition for dismissing the cases on summary judgment motions. Interview with Minna J. Kotkin, Director, Brooklyn Law School Federal Litigation Clinic, in Brooklyn, N.Y. (Sept. 11, 2000). Thus, there may very well be a significant number of women-of-color plaintiffs omitted from my empirical count because of the (p.489) tendency to dismiss intersectional claims and because of the vagaries of judicial inclinations to publish their opinions with commercial electronic publishers like Lexis-Nexis and Westlaw. In short, the racial disparity is more astounding when one considers all the empirical difficulties with using the Lexis-Nexis and Westlaw universe of cases, which underappreciate the actual numbers of cases brought by women of color.

    (21) . The EEOC defines sexual harassment generally as unwelcome sexual conduct that is explicitly or implicitly made a term or condition of employment. 29 C.F.R. § 1604.11(a)(1) (1994). Quid pro quo sexual harassment occurs when “submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.” 29 C.F.R. § 1604.11(a)(2). A hostile work environment sexual harassment claim recognizes that unwelcome sexual conduct that “unreasonably interfere[ s] with an individual's work performance” or creates an “intimidating, hostile, or offensive working environment” can constitute sex discrimination as well. 29 C.F.R. § 1604.11(a)(3).

    (22) . Eric J. Sydell and Eileen S. Nelson, “Gender and Race Differences in the Perceptions of Sexual Harassment,” 1 J. C. Counseling 99, 99 (1998) (citing two studies of workplace sexual harassment of women, with one study reporting that 21 percent of women experience this type of harassment and the other study reporting that 90 percent of women have that experience).

    (23) . See Merit Systems Protection Bd., “Sexual Harassment in the Federal Workplace: Trends, Progress, and Continuing Challenges” (1995), reprinted in Sexual Harassment in America: A Documentary History 24, 24 (Laura W. Stein ed., 1999) (observing that empirical study of federal employees indicates that sexual harassment victims rarely file formal charges—only 6 percent of 1994 survey respondents who had been victimized took formal action); see also James E. Gruber and Michael D. Smith, “Women's Responses to Sexual Harassment: A Multivariate Analysis,” 17 Basic and Applied Soc. Psychol. 543, 545 (1995) (discussing why women tend to have nonassertive responses to sexual harassment).

    (24) . Patricia A. Gwartney-Gibbs and Denise H. Lach, “Sociological Explanations for Failure to Seek Sexual Harassment Remedies,” 9 Mediation Q. 365, 372 (1992) (concluding that few women proceed to formal resolution of the sexual harassment claims they file).

    (25) . U.S. Equal Employment Opportunity Commssion, Sexual Harassment Charges: EEOC and FEPAs Combined: FY 1992FY 2000, http://www.eeoc.gov/stats/harass.html (last modified Jan. 18, 2001); see also U.S. Equal Employment Opportunity Commission, Definitions of Terms, http://www.eeoc.gov/stats/define.html (last modified Aug. 11, 1998). The EEOC has defined “administr–ative closure” as follows: “Charge closed for administrative reasons, which include: failure to locate charging party, charging party failed to respond to EEOC communications, charging party refused to accept full relief, closed due to the outcome of related litigation which establishes a precedent that makes further processing of the charge futile, charging party requests withdrawal of a charge without receiving benefits or having resolved the issue, no statutory jurisdiction.” Id.

    (26) . MacKinnon, supra note 1, at 53.

    (27) . See MacKinnon, supra note 1, at 54 (“The stigmatization of all black women as prostitutes may sensitize them to the real commonality between sexual harassment and (p.490) prostitution”); Kimberlé Crenshaw, “Race, Gender, and Sexual Harassment,” 65 S. Cal. L. Rev. 1467, 1470 (1992) (“Racism may provide the clarity to see that sexual harassment is not a flattering or misguided social overture but an intentional act of sexual discrimination that is threatening, and humiliating”).

    (28) . Anna-Maria Marshall, “Closing the Gaps: Plaintiffs in Pivotal Sexual Harassment Cases, 23 Law and Soc. Inquiry 761 (1998).

    (29) . Id. at 776 n.24.

    (30) . Cost of Sexual Harassment, supra note 7.

    (31) . Id.

    (32) . U.S. Equal Employment Opportunity Commission, “Questions and Answers About Sexual Harassment” 1 (1992). The brochure was drafted for the purpose of educating the public in a way not possible with the dense and lawyer-targeted policy guidelines of 1988 and 1990. U.S. Equal Employment Opportunity Commission, Notice N-915-035, “Policy Guidance on Current Issues of Sexual Harassment” (1988); U.S. Equal Employment Opportunity Commission, Notice N-915-050, “Policy Guidance on Current Issues of Sexual Harassment” (1990). Since 1991, resources have been produced to educate the public about the nature of sexual harassment. See, e.g., Ellen Bravo and Ellen Cassedy, “The 9 to 5 Guide to Combating Sexual Harassment: Candid Advice from 9 to 5,” National Association of Working Women (1992) (describing the problem of sexual harassment and ways to combat it, including a chapter on how to get your employer to adopt a sexual harassment policy).

    (33) . Some federal courts recognized the cause of action as early as 1976. See, e.g., Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976) (recognizing quid pro quo sexual harassment as a violation of Title VII's proscription against sex discrimination), rev'd on other grounds sub nom. Williams v. Bell, 587 F.2d 1240 (D.C. Cir. 1978). Moreover, the cause of action was recognized by the Supreme Court in 1986. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (recognizing sexual harassment in the work environment as a legal cause of action under Title VII of the Civil Rights Act).

    (34) . Vicki Schultz, “Reconceptualizing Sexual Harassment,” 107 Yale L.J. 1683, 1685 (1998).

    (35) . Cost of Sexual Harassment, supra note 7.

    (36) . Compare U.S. Equal Employment Opportunity Commission, Sexual Harassment Charges EEOC and FEPAs Combined: FY 1992–FY 2000, available at http://www.eeoc.gov/stats/harass.html (last modified Jan. 18, 2001) (detailing the number of annual sexual harassment charges filed with the EEOC from 1992 through 1999), with Cost of Sexual Harassment, supra note 7 (giving sexual harassment charge statistics from 1989 to 1992).

    (37) . Kirstin Downey Grimsley, “Worker Bias Cases Are Rising Steadily: New Laws Boost Hopes for Monetary Awards,” Wash. Post, May 12, 1997, at A1.

    (38) . See James E. Gruber and Lars Bjorn, “Blue-Collar Blues: The Sexual Harassment of Women Autoworkers,” 9 Work and Occupations 271 (1982) (concluding that the race of a victim does not influence the victim's response to sexual harassment); see also Richard C. Sorenson et al., “Solving the Chronic Problem of Sexual Harassment in the Workplace: An Empirical Study of Factors Affecting Employee Perceptions and Consequences of Sexual Harassment,” 34 Cal. W. L. Rev. 457, 470, 475 (1998) (concluding that race did (p.491) not significantly influence women's perceptions of what constituted sexual harassment in an empirical study of 410 members of the U.S. Army).

    (39) . See Jann H. Adams, “Sexual Harassment and Black Women: A Historical Perspective,” in Sexual Harassment: Theory, Research, and Treatment, supra note 14, at 213, 214, 220–21 (describing factors that may make women of color less likely to report sexual harassment); Audrey J. Murrell, “Sexual Harassment and Women of Color: Issues, Challenges, and Future Directions,” in Sexual Harassment in the Workplace: Perspectives, Frontiers, and Response Strategies 51, 58–59 (Margaret S. Stockdale ed., 1996) (stating that there is some evidence that Black women are less likely to report rape and less likely to quit work in response to sexual harassment); Marla R. H. Kohlman, “Locating Sexual Harassment Within Intersections of Experience in the U.S. Labor Market,” at 97 (2000) (unpublished Ph.D. dissertation, University of Maryland) (on file with author) (analyzing General Social Surveys of 1994 and 1996 with conclusion that women of color are less likely to report sexual harassment than are White women).

    (40) . See Barak, supra note 14, at 277 (describing how social stereotypes of Asian-American, Black, and Chicana women encourage sexual harassment); Darlene C. De-Four, “The Interface of Racism and Sexism on College Campuses,” in Ivory Power: Sexual Harassment on Campus 45, 48–49 (Michele A. Paludi ed., 1990) (“The images and perceptions of women of color also increase their vulnerability to harassment”); Murrell, supra note 39, at 54–55 (describing how social stereotypes affect the views of perpetrators of sexual assault and may increase the chances that a woman of color is sexually harassed).

    (41) . Mary Giselle Mangione-Lambie, “Sexual Harassment: The Effects of Perceiver Gender, Race and Rank on Attitudes and Actions” 104 (1994) (unpublished Ph.D. dissertation, California School of Professional Psychology at San Diego) (on file with author) (finding that non-White women's perceptions of the seriousness of sexual harassment was less than White women's, and in fact, almost equal to men's perceptions).

    (42) . See W. Lawrence Neuman, “Gender, Race, and Age Differences in Student Definitions of Sexual Harassment,” 29 Wis. Sociologist 63 (1992) (finding older White female college students had the broadest definitions of sexual harassment); see also Barak, supra note 16, at 283 (describing a study in which females of color had more lenient definitions of what constituted sexual harassment than White females).

    (43) . See Angela M. Hargrow, “Speaking to Our Realities: From Speculation to Truth Concerning African American Women's Experiences of Sexual Harassment” 56 (1996) (unpublished Ph.D. dissertation, Ohio State University) (on file with author) (stating that African-American women “may be accustomed to racist and sexist behavior in the workplace and may feel they have to accept the harassing behaviors”).

    (44) . Kathleen M. Rospenda et al., “Doing Power: The Confluence of Gender, Race, and Class in Contrapower Sexual Harassment,” 12 Gender and Soc. 40, 54 (1998) (citing L. M. Cortina et al., “ïDios míop.p.p. quéhacer? Hispanic Women's Responses to Sexual Harassment” (May 1996), unpublished paper presented at the 1995 Annual Meeting of the Midwestern Psychological Association, Chicago); Jami Leigh Obermayer, “Women of Color and White Women's Resistance to Sexual Harassment,” 1–142 (2001) (unpublished Ph.D. dissertation, American University) (on file with author) (presenting hierarchical log-linear analysis of a sample of the data collected by the Department of Defense (p.492) for its 1995 study of sexual harassment in the military and concluding that when women of color are subjected to unwanted crude sexual attention by someone of a different race, they will respond with coping and avoidance strategies rather than reporting the behavior as they would otherwise do with harassers of the same race).

    (45) . See Merit Systems Protection Bd., Sexual Harassment in the Federal Workplace: Is It a Problem? (1981), reprinted in Sexual Harassment in America: A Documentary History, supra note 23, at 19, 21 (stating that minority women were more likely to be harassed by someone not of their race or ethnicity).

    (46) . Hargrow, supra note 43, at 51–52.

    (47) . Id. at 50.

    (48) . Karen Dugger, “Social Location and Gender-Role Attitudes: A Comparison of Black and White Women,” 2 Gender and Soc. 425, 439 (1988).

    (49) . See Merit Systems Protection Bd., supra note 45, at 20 (“Sexual harassment is widely distributed among women and men of various backgrounds, positions and locations”); Barak, supra note 14, at 266 (describing prevalence of sexual harassment of female university students); Elizabeth Grauerholz, “Sexual Harassment in the Academy: The Case of Women Professors,” in Sexual Harassment in the Workplace: Perspectives, Frontiers, and Response Strategies, supra note 39, at 29, 32–33 (detailing survey data from 210 women faculty at Purdue University which suggests that sexual harassment is relatively widespread); James E. Gruber, “An Epidemiology of Sexual Harassment: Evidence from North America and Europe,” in Sexual Harassment: Theory, Research, and Treatment, supra note 14, at 84, 88 (concluding that there is a universality of sexual harassment experiences for women across occupational status in the United States and internationally); Elvia R. Arriola, “‘What's the Big Deal?’ Women in the New York City Construction Industry and Sexual Harassment Law, 1970–1985,” 22 Colum. Hum. Rts. L. Rev. 21 (1990) (analyzing sexual harassment in blue collar construction industry); Maria M. Dominguez, “Sex Discrimination and Sexual Harassment in Agricultural Labor,” 6 Am. U. J. Gender and L. 231, 254–55 (1997) (describing probability samples of women farm workers who experience sexual harassment); David N. Laband and Bernard F. Lentz, “The Effects of Sexual Harassment on Job Satisfaction, Earnings, and Turnover Among Female Lawyers,” 51 Indus. and Lab. Rel. Rev. 594, 597 (1998) (estimating from an American Bar Association survey that nearly two-thirds of female lawyers in private practice, and nearly half of those in corporate or public agency settings, reported experiencing or observing incidents of sexual harassment on the job); Maya Alexandri, Note, “The Student Summer Associate Experience with Harassing Behaviors: An Empirical Study and Proposal for Private Party Action,” 19 Women's Rts. L. Rep. 43 (1997) (describing survey of summer associates who experienced sexual harassment).

    (50) . Barbara Gutek and Mary P. Koss, “How Women Deal with Sexual Harassment and How Organizations Respond to Reporting,” in Sexual Harassment in the Workplace and Academia: Psychiatric Issues 39–57 (Diane K. Shrier, M.D. ed., 1996).

    (51) . Barak, supra note 14, at 277. Furthermore, the majority of working women of all races in the United States employed in private industry are employed as office and clerical workers. See U.S. Equal Employment Opportunity Commissionn, Occupational Employment in Private Industry by Race/Ethnic Group/Sex and by Industry, United States, (p.493) 1998, http://www.eeoc.gov/stats/jobpat/tables-1.html (Sept. 21, 2000) (detailing the statistics which demonstrate that 25.4 percent of White women and 23.5 percent of women of color in private industry are employed as office and clerical workers).

    (52) . Gruber and Smith, supra note 23, at 556; see also Hargrow, supra note 43, at 55 (concluding that job type was not highly related to rate of sexual harassment for geographically diverse study of 166 African-American working women).

    (53) . See Bails, supra note 18, at 46 (finding “that the education of the female victims does not appear to have a significant impact on victim selection”).

    (54) . Gruber and Smith, supra note 23, at 552–53.

    (55) . See Gruber and Bjorn, supra note 38, at 284–85 (observing that in a study of women who work on the assembly line in the auto industry, Black women were more severely and frequently harassed); Deborah Ann Gerrity, “Sexual Harassment's Effects on Emotional and Occupational Functioning of Female University Employees,” 113 (1994) (unpublished Ph.D. dissertation, University of Maryland) (on file with author) (noting that in a study of 649 female employees of a large, public, mid-Atlantic university, African-American women were more likely to report incidents of quid pro quo harassment than White women); Barbara Ann Rosen, “Sexual Harassment of High School Females: Its Relation to Race/Ethnicity, Socioeconomic Status, and School Characteristics,” 70–71 (1994) (unpublished Ph.D. dissertation, Rutgers, the State University of New Jersey) (on file with author) (describing how in a study of 361 incoming freshman at a women's college, non-Whites (excluding Asians) had a significantly higher prevalence of the most severe forms of sexual harassment).

    (56) . Balos and Fellows, supra note 6, at 1280.

    (57) . Id. at 1229.

    (58) . Id. at 1231, 1236.

    (59) . Id. at 1231. See also Mary Louise Fellows and Sherene Razack, “The Race to Innocence: Confronting Hierarchical Relations Among Women,” 1 Iowa J. Gender, Race and Justice 335, 348 (1998) (articulating the respectability/degenerarcy dichotomy in relations among women).

    (60) . Balos and Fellows, supra note 6, at 1235.

    (61) . See Marshall, supra note 28, at 762, 786–87 (describing MacKinnon's involvement in this effort).

    (62) . MacKinnon, supra note 1, at 159.

    (63) . See Balos and Fellows, supra note 6, at 1232–34 (discussing cases where courts have held that provocative speech and dress are not per se inadmissible in sexual harassment cases, and that “provocatory conduct” by a wife murdered by her husband can help her husband have his murder conviction repealed).

    (64) . Id. at 1269–73.

    (65) . Id.

    (66) . See Vednita Carter and Evelina Giobbe, “Duet: Prostitution, Racism and Feminist Discourse,” 10 Hastings Women's L.J. 37, 45 (1999) (stating that the portrayal of Black women in pornography has fostered an environment where Black women are targeted for prostitution).

    (67) . Julia O'Connell Davidson, Prostitution, Power and Freedom 37 (1998).

    (p.494)

    (68) . MacKinnon, supra note 1, at 53 (stating that Black women are most vulnerable to sexual harassment because of the idea that Black women are “sexually accessible” and because they are economically at risk).

    (69) . See Hernández, supra note 3, at 218, app. I fig. I (detailing the mean and median figures for filing EEOC sexual harassment charges as a mean of 7,593 and a median of 7,852 for White women from 1992 to 1999, and as a mean of 4,344 and a median of 4,656 for women of color as a collective for that same timeframe).

    (70) . See Martha R. Mahoney, “What Should White Women Do?” in Critical White Studies: Looking Behind the Mirror, supra note 20, at 642, 643 (“[R]acism is so deeply entwined and so profoundly implicated in all structures of gender oppression that it has harmed white women even as it has brought us privilege in many ways, so that we will never find freedom until we help transform all of these power relationships”).

    (71) . Fellows and Razack, supra note 59, at 348 (articulating the respectability/degenerarcy dichotomy in relations among women).

    (72) . Cheryl Harris has observed: “Indeed, through the rigid construction of the virgin/whore dichotomy along racial lines, the conception of womanhood was deeply wedded to slavery and patriarchy and the conduct of all women was policed in accordance with patriarchal norms and in furtherance of white male power.” Cheryl I. Harris, “Finding Sojourner's Truth: Race, Gender, and the Institution of Property,” 18 Cardozo L. Rev. 309, 312, 314 (1996). Asian Pacific women and Latinas have also been historically positioned as lascivious “others.” See, e.g., Cho, supra note 2, at 190–95 (describing stereotypes of Asian women, including beliefs that they are exotic, masochistic and “the antidote to visions of liberated career women”); Maria L. Ontiveros, “Three Perspectives on Workplace Harassment of Women of Color,” 23 Golden Gate U. L. Rev. 817, 819–20 (1993) (describing stereotypes of Asian women as exotic and submissive, and Latinas as “naturally sexual”).

    (73) . MacKinnon, supra note 1, at 30 (observing that “sexual harassment can be both a sexist way to express racism and a racist way to express sexism”).

    (74) . Id.; see also http://www.tsmtravel.com (travel and the single male website);http://www.ectasytour.com (Dominican Republic sex tourism website); http://www.singletravel.com (international sex tourism website); and http://www.gentlemensvacation club.com (international sex tourism website).

    (75) . Bruce Cassirer, Travel and the Single Male: The World's Best Destinations for the Single Male 74 (1992).

    (76) . Julia O'Connell and Jacqueline Sanchez Taylor, “Fantasy Islands: Exploring the Demand for Sex Tourism,” in Sun, Sex and Gold: Tourism and Sex Work in the Caribbean 37, 37 (Kamala Kempadoo ed., 1999).

    (77) . Legal scholar Katherine Franke uses the term “technology of sexism” in part to underscore the role of sexual harassment in constructing the gender of both the harasser and the harassed by reinforcing gender stereotypes. As Franke articulates it, sexual harassers feminize their victims by treating them as sex objects rather than competent employees. In so doing, sexual harassers masculinize themselves by exercising the power to inscribe femininity on the victim. In this way, sexual harassment regulates gender. Katherine M. Franke, “What's Wrong with Sexual Harassment?” 49 Stan. L. Rev. 691, 693 (1997) (“Sexual harassment is a technology of sexism. It is a disciplinary practice that (p.495) inscribes, enforces, and polices the identities of both harasser and victim according to a system of gender norms that envisions women as feminine, (hetero)sexual objects, and men as masculine, (hetero)sexual subjects”). The empirical evidence of racial distinctions in the use of sexual harassment illustrates that race is strategically deployed in the regulation of gender as well.

    Notes:

    (1) . See Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination 53 (1979) (describing Black women as “most vulnerable to sexual harassment, both because of the image of black women as the most sexually accessible and because they are the most economically at risk”).

    (2) . Sumi K. Cho, “Converging Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suzie Wong,” 1 Iowa J. Gender, Race and Justice 177, 209 (1997) (“the law's current dichotomous categorization of racial discrimination and sexual harassment as separate spheres of injury is inadequate to respond to racialized sexual harassment”).

    (3) . Tanya Katerí Hernández, “Sexual Harassment and Racial Disparity: The Mutual Construction of Gender and Race,” 4 Iowa J. Gender, Race and Justice 183 (2001).

    (4) . My use of the term “underrepresentation” in the presentation of the racially comparative statistical data is not meant to suggest that White women should be victimized with greater frequency, but solely to depict the ways in which the sexual harassment statistics indicate significantly distinctive patterns for White and non-White women.

    (5) . See Hernández, supra note 3, at 217–224, apps. I–V. The statistical data discussed in this essay contrasts White women and women of color as an aggregate for two reasons. First, the EEOC data collection presents statistics only for White, Black and “Other Race” women, in which Latinas, Native Americans, and Asian Pacific women are collapsed. Telephone interview with Pierrette Hickey, Director of the Charge Data System Division, EEOC Office of Communications (June 6, 2000). Beyond the pragmatic constraints of not having disaggregated data available for “Other Race” women, a comparative analysis of the ways in which racial stereotypes are used to sexualize women of color as a collective and to imbue their sexualization as an inherently interchangeable commodity supports the binary comparisons of White women with the collective of women of color. These binary comparisons are not made for the purpose of collapsing the particular experiences of various racial minority groups, but rather for the purpose of illustrating their common oppression.

    (6) . Beverly Balos and Mary Louise Fellows, “A Matter of Prostitution: Becoming Respectable,” 74 N.Y.U. L. Rev. 1220, 1227 (1999) (arguing that “prostitution functions as a paradigm for degeneracy” and “as a practice of inequality” in order to maintain the distinction between pure and wanton women).

    (7) . Cost of Sexual Harassment to Employers Up Sharply: More Employees are Bringing Charges and Receiving Compensation for Damages (Center for Women in Government, University of Albany, Albany, N.Y.), Spring 1994 (hereinafter Cost of Sexual Harassment). Men of all races account for the remaining 9 percent. Id.

    (8) . See Bureau of the Census, U.S. Department of Commerce, Statistical Abstract of the United States: 1993, at 409 (listing total female employment in 1992 at 45,381,000 and the White female employment at 38,481,000).

    (9) . Id. (listing the number of Black women who were employed civilians in 1992 as 5,231 and the total number of females employed as 45,381).

    (10) . Compare id. (including women of “other races” in the total number of women employed), with Cost of Sexual Harassment, supra note 7 (finding women of other races accounted for 14.7 percent of the sexual harassment charges).

    (11) . See Hernández, supra note 3, at 217–222, apps. I–III.

    (12) . This information is available on the electronic databases of Lexis-Nexis and Westlaw.

    (13) . See Hernández, supra note 3, at 223–224, apps. IV–V. I chose to analyze federal sexual harassment complaints originating in the First though Sixth Circuits because those circuits encompass jurisdictions where women of color are fairly represented and are thus better indicators of racial patterns in filing statistics.

    (14) . It is interesting to note that transnational studies of sexual harassment also suggest a racial disparity in sexual harassment victimization. See Azy Barak, “Cross-Cultural Perspectives on Sexual Harassment,” in Sexual Harassment: Theory, Research and Treatment 263, 276 (William O'Donohue ed., 1997) (enumerating studies in Zimbabwe, the Netherlands, Australia, and South Africa which suggest a higher incidence of sexual harassment among women of color).

    (15) . See Castaneda v. Partida, 430 U.S. 482, 497 n.17 (1977).

    (16) . See Hernández, supra note 3, at 220, 223, apps. II, IV.

    (17) . See Jay Devore and Roxy Peck, Statistics: The Exploration and Analysis of Data 209, 211 (3d ed. 1997) (explaining how the probability that any standard deviation which exceeds 3.89 can practically be considered zero because 99 percent of the time the variance between an expected value and an observed value is three standard deviations or less, and thus any standard deviation which exceeds that range is an extreme probability); see also R. A. Fisher, Statistical Methods for Research Workers 43 (1946) (observing that the frequency of standard deviations beyond 3.0 are exceedingly small).

    (18) . See, e.g., Constance Thomasina Bails, “Female Reactions to Sexual Harassment in the Workplace and the Impact of Race,” at v (1994) (unpublished Ph.D. dissertation, Temple University) (on file with author) (concluding from a study of 208 civilian female employees at the Philadelphia Naval Shipyard that “Black females experienced more sexual harassment proportionately than their counterparts”); Lilia M. Cortina et al., “Sexual Harassment and Assault: Chilling the Climate for Women in Academia,” 22 Psychol. Women Q. 419, 428 (1998) (demonstrating how in a study of 1,037 female (p.488) undergraduate and graduate students, Black and Latina women reported the highest incidence of sexual harassment despite sharing a common definition for sexual harassment across races).

    (19) . Any analysis of patterns in the filing of legal complaints will contain a certain amount of uncertainty because of the inability to know whether each complaint filed is meritorious, and also how many instances of sexual harassment never resulted in a legal complaint at all. Given the inevitable potential for both overinclusion and underinclusion in estimated rates of sexual harassment, this study seeks to highlight those general patterns in the data that are so highly suggestive of racial disparity that they are both statistically and legally significant. Just as gross statistical disparities may sometimes constitute prima facie proof of a pattern or practice of discrimination, statistical disparities in the presumed rates of sexual harassment are highly probative of the role of race in the incidence of sexual harassment. See Int'l Bd. of Teamsters v. United States, 431 U.S. 324, 339 (1977) (detailing the value of statistics in pattern or practice discrimination suits under Title VII of the Civil Rights Act of 1964).

    (20) . Data regarding the existence of racial disparity in the increased rates of sexual harassment complaints after the large-scale publicity of the Clarence Thomas confirmation hearing also lends greater credibility to the presumed parallel between the racial pattern in sexual harassment charges and the actual dynamics of sexual harassment victimization. From 1992 to 1999 the rate of increase in sexual harassment charges filed by women of color was 99.3 percent, while the rate of increase for White women was only 35.6 percent. See Hernández, supra note 3, at 221, app. III. In effect, the continued racial disparity in filing rates suggests that the same racial disparity may exist within the actual societal rates of sexual harassment. Moreover, the racial disparity demonstrated in the federal cases analyzed is in all likelihood a conservative depiction of the racial disparity in actual rates of sexual harassment because of my empirical decision to attribute those cases that did not specify the race of the plaintiff to the population of White women plaintiffs. I based this decision on the documented tendency that Whites have to view their Whiteness as invisible and not a race at all. See, e.g., Bonnie Kae Grover, “Growing up White in America?” in Critical White Studies: Looking Behind the Mirror 34, 34 (Richard Delgado and Jean Stefancic eds., 1997) (“White is transparent. That's the point of being the dominant race. Sure, the whiteness is there, but you never think of it. If you're white, you never have to think of it”). Therefore, my count of cases involving women of color overlooks those cases in which a woman of color did not think to specify her race and those instances in which the federal judge did not view a woman of color's racial classification as salient to the sexual harassment complaint being litigated. See Cho supra note 2, at 209 (discussing the difficulty women of color have in educating judges about racialized sexual harassment). Given my conservative approach in the collection of the data, the overrepresentation of women of color in federal court case filings is especially remarkable. Furthermore, sexual harassment lawyers have observed that the difficulty judges and juries have in appreciating the permutations and harms of racialized sexual harassment leads to a predisposition for dismissing the cases on summary judgment motions. Interview with Minna J. Kotkin, Director, Brooklyn Law School Federal Litigation Clinic, in Brooklyn, N.Y. (Sept. 11, 2000). Thus, there may very well be a significant number of women-of-color plaintiffs omitted from my empirical count because of the (p.489) tendency to dismiss intersectional claims and because of the vagaries of judicial inclinations to publish their opinions with commercial electronic publishers like Lexis-Nexis and Westlaw. In short, the racial disparity is more astounding when one considers all the empirical difficulties with using the Lexis-Nexis and Westlaw universe of cases, which underappreciate the actual numbers of cases brought by women of color.

    (21) . The EEOC defines sexual harassment generally as unwelcome sexual conduct that is explicitly or implicitly made a term or condition of employment. 29 C.F.R. § 1604.11(a)(1) (1994). Quid pro quo sexual harassment occurs when “submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.” 29 C.F.R. § 1604.11(a)(2). A hostile work environment sexual harassment claim recognizes that unwelcome sexual conduct that “unreasonably interfere[ s] with an individual's work performance” or creates an “intimidating, hostile, or offensive working environment” can constitute sex discrimination as well. 29 C.F.R. § 1604.11(a)(3).

    (22) . Eric J. Sydell and Eileen S. Nelson, “Gender and Race Differences in the Perceptions of Sexual Harassment,” 1 J. C. Counseling 99, 99 (1998) (citing two studies of workplace sexual harassment of women, with one study reporting that 21 percent of women experience this type of harassment and the other study reporting that 90 percent of women have that experience).

    (23) . See Merit Systems Protection Bd., “Sexual Harassment in the Federal Workplace: Trends, Progress, and Continuing Challenges” (1995), reprinted in Sexual Harassment in America: A Documentary History 24, 24 (Laura W. Stein ed., 1999) (observing that empirical study of federal employees indicates that sexual harassment victims rarely file formal charges—only 6 percent of 1994 survey respondents who had been victimized took formal action); see also James E. Gruber and Michael D. Smith, “Women's Responses to Sexual Harassment: A Multivariate Analysis,” 17 Basic and Applied Soc. Psychol. 543, 545 (1995) (discussing why women tend to have nonassertive responses to sexual harassment).

    (24) . Patricia A. Gwartney-Gibbs and Denise H. Lach, “Sociological Explanations for Failure to Seek Sexual Harassment Remedies,” 9 Mediation Q. 365, 372 (1992) (concluding that few women proceed to formal resolution of the sexual harassment claims they file).

    (25) . U.S. Equal Employment Opportunity Commssion, Sexual Harassment Charges: EEOC and FEPAs Combined: FY 1992FY 2000, http://www.eeoc.gov/stats/harass.html (last modified Jan. 18, 2001); see also U.S. Equal Employment Opportunity Commission, Definitions of Terms, http://www.eeoc.gov/stats/define.html (last modified Aug. 11, 1998). The EEOC has defined “administr–ative closure” as follows: “Charge closed for administrative reasons, which include: failure to locate charging party, charging party failed to respond to EEOC communications, charging party refused to accept full relief, closed due to the outcome of related litigation which establishes a precedent that makes further processing of the charge futile, charging party requests withdrawal of a charge without receiving benefits or having resolved the issue, no statutory jurisdiction.” Id.

    (26) . MacKinnon, supra note 1, at 53.

    (27) . See MacKinnon, supra note 1, at 54 (“The stigmatization of all black women as prostitutes may sensitize them to the real commonality between sexual harassment and (p.490) prostitution”); Kimberlé Crenshaw, “Race, Gender, and Sexual Harassment,” 65 S. Cal. L. Rev. 1467, 1470 (1992) (“Racism may provide the clarity to see that sexual harassment is not a flattering or misguided social overture but an intentional act of sexual discrimination that is threatening, and humiliating”).

    (28) . Anna-Maria Marshall, “Closing the Gaps: Plaintiffs in Pivotal Sexual Harassment Cases, 23 Law and Soc. Inquiry 761 (1998).

    (29) . Id. at 776 n.24.

    (30) . Cost of Sexual Harassment, supra note 7.

    (31) . Id.

    (32) . U.S. Equal Employment Opportunity Commission, “Questions and Answers About Sexual Harassment” 1 (1992). The brochure was drafted for the purpose of educating the public in a way not possible with the dense and lawyer-targeted policy guidelines of 1988 and 1990. U.S. Equal Employment Opportunity Commission, Notice N-915-035, “Policy Guidance on Current Issues of Sexual Harassment” (1988); U.S. Equal Employment Opportunity Commission, Notice N-915-050, “Policy Guidance on Current Issues of Sexual Harassment” (1990). Since 1991, resources have been produced to educate the public about the nature of sexual harassment. See, e.g., Ellen Bravo and Ellen Cassedy, “The 9 to 5 Guide to Combating Sexual Harassment: Candid Advice from 9 to 5,” National Association of Working Women (1992) (describing the problem of sexual harassment and ways to combat it, including a chapter on how to get your employer to adopt a sexual harassment policy).

    (33) . Some federal courts recognized the cause of action as early as 1976. See, e.g., Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976) (recognizing quid pro quo sexual harassment as a violation of Title VII's proscription against sex discrimination), rev'd on other grounds sub nom. Williams v. Bell, 587 F.2d 1240 (D.C. Cir. 1978). Moreover, the cause of action was recognized by the Supreme Court in 1986. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (recognizing sexual harassment in the work environment as a legal cause of action under Title VII of the Civil Rights Act).

    (34) . Vicki Schultz, “Reconceptualizing Sexual Harassment,” 107 Yale L.J. 1683, 1685 (1998).

    (35) . Cost of Sexual Harassment, supra note 7.

    (36) . Compare U.S. Equal Employment Opportunity Commission, Sexual Harassment Charges EEOC and FEPAs Combined: FY 1992–FY 2000, available at http://www.eeoc.gov/stats/harass.html (last modified Jan. 18, 2001) (detailing the number of annual sexual harassment charges filed with the EEOC from 1992 through 1999), with Cost of Sexual Harassment, supra note 7 (giving sexual harassment charge statistics from 1989 to 1992).

    (37) . Kirstin Downey Grimsley, “Worker Bias Cases Are Rising Steadily: New Laws Boost Hopes for Monetary Awards,” Wash. Post, May 12, 1997, at A1.

    (38) . See James E. Gruber and Lars Bjorn, “Blue-Collar Blues: The Sexual Harassment of Women Autoworkers,” 9 Work and Occupations 271 (1982) (concluding that the race of a victim does not influence the victim's response to sexual harassment); see also Richard C. Sorenson et al., “Solving the Chronic Problem of Sexual Harassment in the Workplace: An Empirical Study of Factors Affecting Employee Perceptions and Consequences of Sexual Harassment,” 34 Cal. W. L. Rev. 457, 470, 475 (1998) (concluding that race did (p.491) not significantly influence women's perceptions of what constituted sexual harassment in an empirical study of 410 members of the U.S. Army).

    (39) . See Jann H. Adams, “Sexual Harassment and Black Women: A Historical Perspective,” in Sexual Harassment: Theory, Research, and Treatment, supra note 14, at 213, 214, 220–21 (describing factors that may make women of color less likely to report sexual harassment); Audrey J. Murrell, “Sexual Harassment and Women of Color: Issues, Challenges, and Future Directions,” in Sexual Harassment in the Workplace: Perspectives, Frontiers, and Response Strategies 51, 58–59 (Margaret S. Stockdale ed., 1996) (stating that there is some evidence that Black women are less likely to report rape and less likely to quit work in response to sexual harassment); Marla R. H. Kohlman, “Locating Sexual Harassment Within Intersections of Experience in the U.S. Labor Market,” at 97 (2000) (unpublished Ph.D. dissertation, University of Maryland) (on file with author) (analyzing General Social Surveys of 1994 and 1996 with conclusion that women of color are less likely to report sexual harassment than are White women).

    (40) . See Barak, supra note 14, at 277 (describing how social stereotypes of Asian-American, Black, and Chicana women encourage sexual harassment); Darlene C. De-Four, “The Interface of Racism and Sexism on College Campuses,” in Ivory Power: Sexual Harassment on Campus 45, 48–49 (Michele A. Paludi ed., 1990) (“The images and perceptions of women of color also increase their vulnerability to harassment”); Murrell, supra note 39, at 54–55 (describing how social stereotypes affect the views of perpetrators of sexual assault and may increase the chances that a woman of color is sexually harassed).

    (41) . Mary Giselle Mangione-Lambie, “Sexual Harassment: The Effects of Perceiver Gender, Race and Rank on Attitudes and Actions” 104 (1994) (unpublished Ph.D. dissertation, California School of Professional Psychology at San Diego) (on file with author) (finding that non-White women's perceptions of the seriousness of sexual harassment was less than White women's, and in fact, almost equal to men's perceptions).

    (42) . See W. Lawrence Neuman, “Gender, Race, and Age Differences in Student Definitions of Sexual Harassment,” 29 Wis. Sociologist 63 (1992) (finding older White female college students had the broadest definitions of sexual harassment); see also Barak, supra note 16, at 283 (describing a study in which females of color had more lenient definitions of what constituted sexual harassment than White females).

    (43) . See Angela M. Hargrow, “Speaking to Our Realities: From Speculation to Truth Concerning African American Women's Experiences of Sexual Harassment” 56 (1996) (unpublished Ph.D. dissertation, Ohio State University) (on file with author) (stating that African-American women “may be accustomed to racist and sexist behavior in the workplace and may feel they have to accept the harassing behaviors”).

    (44) . Kathleen M. Rospenda et al., “Doing Power: The Confluence of Gender, Race, and Class in Contrapower Sexual Harassment,” 12 Gender and Soc. 40, 54 (1998) (citing L. M. Cortina et al., “ïDios míop.p.p. quéhacer? Hispanic Women's Responses to Sexual Harassment” (May 1996), unpublished paper presented at the 1995 Annual Meeting of the Midwestern Psychological Association, Chicago); Jami Leigh Obermayer, “Women of Color and White Women's Resistance to Sexual Harassment,” 1–142 (2001) (unpublished Ph.D. dissertation, American University) (on file with author) (presenting hierarchical log-linear analysis of a sample of the data collected by the Department of Defense (p.492) for its 1995 study of sexual harassment in the military and concluding that when women of color are subjected to unwanted crude sexual attention by someone of a different race, they will respond with coping and avoidance strategies rather than reporting the behavior as they would otherwise do with harassers of the same race).

    (45) . See Merit Systems Protection Bd., Sexual Harassment in the Federal Workplace: Is It a Problem? (1981), reprinted in Sexual Harassment in America: A Documentary History, supra note 23, at 19, 21 (stating that minority women were more likely to be harassed by someone not of their race or ethnicity).

    (46) . Hargrow, supra note 43, at 51–52.

    (47) . Id. at 50.

    (48) . Karen Dugger, “Social Location and Gender-Role Attitudes: A Comparison of Black and White Women,” 2 Gender and Soc. 425, 439 (1988).

    (49) . See Merit Systems Protection Bd., supra note 45, at 20 (“Sexual harassment is widely distributed among women and men of various backgrounds, positions and locations”); Barak, supra note 14, at 266 (describing prevalence of sexual harassment of female university students); Elizabeth Grauerholz, “Sexual Harassment in the Academy: The Case of Women Professors,” in Sexual Harassment in the Workplace: Perspectives, Frontiers, and Response Strategies, supra note 39, at 29, 32–33 (detailing survey data from 210 women faculty at Purdue University which suggests that sexual harassment is relatively widespread); James E. Gruber, “An Epidemiology of Sexual Harassment: Evidence from North America and Europe,” in Sexual Harassment: Theory, Research, and Treatment, supra note 14, at 84, 88 (concluding that there is a universality of sexual harassment experiences for women across occupational status in the United States and internationally); Elvia R. Arriola, “‘What's the Big Deal?’ Women in the New York City Construction Industry and Sexual Harassment Law, 1970–1985,” 22 Colum. Hum. Rts. L. Rev. 21 (1990) (analyzing sexual harassment in blue collar construction industry); Maria M. Dominguez, “Sex Discrimination and Sexual Harassment in Agricultural Labor,” 6 Am. U. J. Gender and L. 231, 254–55 (1997) (describing probability samples of women farm workers who experience sexual harassment); David N. Laband and Bernard F. Lentz, “The Effects of Sexual Harassment on Job Satisfaction, Earnings, and Turnover Among Female Lawyers,” 51 Indus. and Lab. Rel. Rev. 594, 597 (1998) (estimating from an American Bar Association survey that nearly two-thirds of female lawyers in private practice, and nearly half of those in corporate or public agency settings, reported experiencing or observing incidents of sexual harassment on the job); Maya Alexandri, Note, “The Student Summer Associate Experience with Harassing Behaviors: An Empirical Study and Proposal for Private Party Action,” 19 Women's Rts. L. Rep. 43 (1997) (describing survey of summer associates who experienced sexual harassment).

    (50) . Barbara Gutek and Mary P. Koss, “How Women Deal with Sexual Harassment and How Organizations Respond to Reporting,” in Sexual Harassment in the Workplace and Academia: Psychiatric Issues 39–57 (Diane K. Shrier, M.D. ed., 1996).

    (51) . Barak, supra note 14, at 277. Furthermore, the majority of working women of all races in the United States employed in private industry are employed as office and clerical workers. See U.S. Equal Employment Opportunity Commissionn, Occupational Employment in Private Industry by Race/Ethnic Group/Sex and by Industry, United States, (p.493) 1998, http://www.eeoc.gov/stats/jobpat/tables-1.html (Sept. 21, 2000) (detailing the statistics which demonstrate that 25.4 percent of White women and 23.5 percent of women of color in private industry are employed as office and clerical workers).

    (52) . Gruber and Smith, supra note 23, at 556; see also Hargrow, supra note 43, at 55 (concluding that job type was not highly related to rate of sexual harassment for geographically diverse study of 166 African-American working women).

    (53) . See Bails, supra note 18, at 46 (finding “that the education of the female victims does not appear to have a significant impact on victim selection”).

    (54) . Gruber and Smith, supra note 23, at 552–53.

    (55) . See Gruber and Bjorn, supra note 38, at 284–85 (observing that in a study of women who work on the assembly line in the auto industry, Black women were more severely and frequently harassed); Deborah Ann Gerrity, “Sexual Harassment's Effects on Emotional and Occupational Functioning of Female University Employees,” 113 (1994) (unpublished Ph.D. dissertation, University of Maryland) (on file with author) (noting that in a study of 649 female employees of a large, public, mid-Atlantic university, African-American women were more likely to report incidents of quid pro quo harassment than White women); Barbara Ann Rosen, “Sexual Harassment of High School Females: Its Relation to Race/Ethnicity, Socioeconomic Status, and School Characteristics,” 70–71 (1994) (unpublished Ph.D. dissertation, Rutgers, the State University of New Jersey) (on file with author) (describing how in a study of 361 incoming freshman at a women's college, non-Whites (excluding Asians) had a significantly higher prevalence of the most severe forms of sexual harassment).

    (56) . Balos and Fellows, supra note 6, at 1280.

    (57) . Id. at 1229.

    (58) . Id. at 1231, 1236.

    (59) . Id. at 1231. See also Mary Louise Fellows and Sherene Razack, “The Race to Innocence: Confronting Hierarchical Relations Among Women,” 1 Iowa J. Gender, Race and Justice 335, 348 (1998) (articulating the respectability/degenerarcy dichotomy in relations among women).

    (60) . Balos and Fellows, supra note 6, at 1235.

    (61) . See Marshall, supra note 28, at 762, 786–87 (describing MacKinnon's involvement in this effort).

    (62) . MacKinnon, supra note 1, at 159.

    (63) . See Balos and Fellows, supra note 6, at 1232–34 (discussing cases where courts have held that provocative speech and dress are not per se inadmissible in sexual harassment cases, and that “provocatory conduct” by a wife murdered by her husband can help her husband have his murder conviction repealed).

    (64) . Id. at 1269–73.

    (65) . Id.

    (66) . See Vednita Carter and Evelina Giobbe, “Duet: Prostitution, Racism and Feminist Discourse,” 10 Hastings Women's L.J. 37, 45 (1999) (stating that the portrayal of Black women in pornography has fostered an environment where Black women are targeted for prostitution).

    (67) . Julia O'Connell Davidson, Prostitution, Power and Freedom 37 (1998).

    (68) . MacKinnon, supra note 1, at 53 (stating that Black women are most vulnerable to sexual harassment because of the idea that Black women are “sexually accessible” and because they are economically at risk).

    (69) . See Hernández, supra note 3, at 218, app. I fig. I (detailing the mean and median figures for filing EEOC sexual harassment charges as a mean of 7,593 and a median of 7,852 for White women from 1992 to 1999, and as a mean of 4,344 and a median of 4,656 for women of color as a collective for that same timeframe).

    (70) . See Martha R. Mahoney, “What Should White Women Do?” in Critical White Studies: Looking Behind the Mirror, supra note 20, at 642, 643 (“[R]acism is so deeply entwined and so profoundly implicated in all structures of gender oppression that it has harmed white women even as it has brought us privilege in many ways, so that we will never find freedom until we help transform all of these power relationships”).

    (71) . Fellows and Razack, supra note 59, at 348 (articulating the respectability/degenerarcy dichotomy in relations among women).

    (72) . Cheryl Harris has observed: “Indeed, through the rigid construction of the virgin/whore dichotomy along racial lines, the conception of womanhood was deeply wedded to slavery and patriarchy and the conduct of all women was policed in accordance with patriarchal norms and in furtherance of white male power.” Cheryl I. Harris, “Finding Sojourner's Truth: Race, Gender, and the Institution of Property,” 18 Cardozo L. Rev. 309, 312, 314 (1996). Asian Pacific women and Latinas have also been historically positioned as lascivious “others.” See, e.g., Cho, supra note 2, at 190–95 (describing stereotypes of Asian women, including beliefs that they are exotic, masochistic and “the antidote to visions of liberated career women”); Maria L. Ontiveros, “Three Perspectives on Workplace Harassment of Women of Color,” 23 Golden Gate U. L. Rev. 817, 819–20 (1993) (describing stereotypes of Asian women as exotic and submissive, and Latinas as “naturally sexual”).

    (73) . MacKinnon, supra note 1, at 30 (observing that “sexual harassment can be both a sexist way to express racism and a racist way to express sexism”).

    (74) . Id.; see also http://www.tsmtravel.com (travel and the single male website);http://www.ectasytour.com (Dominican Republic sex tourism website); http://www.singletravel.com (international sex tourism website); and http://www.gentlemensvacation club.com (international sex tourism website).

    (75) . Bruce Cassirer, Travel and the Single Male: The World's Best Destinations for the Single Male 74 (1992).

    (76) . Julia O'Connell and Jacqueline Sanchez Taylor, “Fantasy Islands: Exploring the Demand for Sex Tourism,” in Sun, Sex and Gold: Tourism and Sex Work in the Caribbean 37, 37 (Kamala Kempadoo ed., 1999).

    (77) . Legal scholar Katherine Franke uses the term “technology of sexism” in part to underscore the role of sexual harassment in constructing the gender of both the harasser and the harassed by reinforcing gender stereotypes. As Franke articulates it, sexual harassers feminize their victims by treating them as sex objects rather than competent employees. In so doing, sexual harassers masculinize themselves by exercising the power to inscribe femininity on the victim. In this way, sexual harassment regulates gender. Katherine M. Franke, “What's Wrong with Sexual Harassment?” 49 Stan. L. Rev. 691, 693 (1997) (“Sexual harassment is a technology of sexism. It is a disciplinary practice that (p.495) inscribes, enforces, and polices the identities of both harasser and victim according to a system of gender norms that envisions women as feminine, (hetero)sexual objects, and men as masculine, (hetero)sexual subjects”). The empirical evidence of racial distinctions in the use of sexual harassment illustrates that race is strategically deployed in the regulation of gender as well.