Kathrin S. Zippel's The Politics of Sexual Harassment comprehensively studies not only the development of sexual harassment policies in the United States, the European Union, and Germany but also their implementation and enforcement. Her study also contributes to our understanding of the interactions between social movements and institutions as well as the influence of feminist transnational advocacy networks (TANs). Zippel also problemitizes our understanding of gender and the welfare state. Her conclusions are based on extensive personal interviews and archival research.
Sexual harassment has existed at least since industrialization but, according to Zippel, it was first named by feminists in the United States in the 1970s. At the same time, aggrieved individuals began to take their employers to court under an already-existing anti-discrimination law, the Civil Rights Act of 1974. In these cases, judges heard directly from women who had been harassed, and as time went on, from feminist experts and scholars who testified and provided amicus curea briefs. These judges were not under political pressure nor did they face any organized opposition to the women filing grievances. As a result, by the 1980s, US case law evolved to interpret sexual harassment from the point of view of the victim – any unwanted behavior a “reasonable woman” would object to. The law also provided for punishment of employers who failed to prevent harassment and monetary compensation for women who had been harassed. Furthermore, the Equal Employment Opportunity Commission (EEOC), which had initially been created to combat racial discrimination in the workplace, attempted to expand its institutional mission by creating extensive workplace guidelines to combat sexual harassment as well.
In contrast, European sexual harassment policies were much slower to emerge, and much more limited when passed. It was not until 1990 that the European Union's Council of Ministers passed a non-binding resolution on the subject; additional soft law measures followed the subsequent year. Zippel credits the sexual harassment TAN and individual feminist actors at the EU level for the passage of these policies. While they were not binding, they legitimized the demands of national actors concerned with sexual harassment, especially women in unions and in state gender equity offices. Throughout the 1990s, all EU member states passed sexual harassment laws, but they were often weaker than US case law.
For example, in 1994, the German parliament passed a law creating grievance procedures for reporting harassment, but the law did not specify any penalties for non-compliance. Furthermore, the law defined sexual harassment from the perspective of the harasser; it must be “intentionally designed to harass” and “recognizably rejected” by the victim. This regulation essentially gives harassers a free pass the first time, as their behavior cannot be construed as harassment until it has occurred once and been rejected. No clear punishments are mandated. This rule was developed by (male dominated) unions and employers working together under a conservative German government.
In 2002, decades after the initial court rulings in the United States, the European Union passed an Equal Treatment Directive, explicitly defining sexual harassment and requiring member states to tighten their laws to improve implementation and enforcement by 2005. As of Zippel's writing, however, Germany had still not passed the required legal changes. “Mobbing,” or violation of a worker's dignity regardless of gender, receives much more public attention and resources in Germany than does sexual harassment.
Zippel compares actual implementation and enforcement of sexual harassment laws in the United States and Germany. Not surprisingly, in the US where legal sanctions for non-compliance are present, corporations adopted anti-harassment policies, and many women successfully used the legal system for redress of their grievances. In contrast, in the German case, most firms did not implement anti-harassment measures and the courts had actually made more awards to men who had been accused of harassment than to women who had been harassed. In both countries, however, feminist activists were far removed from implementation, and administrators generally ignored the fact that harassment stems from unequal gender power in the workplace.
Zippel also explains the varying outcomes across her three cases. She rejects the commonly held view that culture can explain why the US has stronger laws, with Puritan American women opposing the flirtation in the workplace that their European sisters enjoy. Instead, she documents equal rates of workplace harassment on both sides of the Atlantic. The author also finds that women's labor force participation rates and the type of welfare state present do not explain harassment policy. Esping-Anderson's “Social Democratic” welfare states (Three Worlds of Welfare Capitalism, 1990), such as Finland, with positive reputations for women's gains in the workplace, were slower to pass harassment legislation than was the “conservative” German welfare state, noted for its paternalistic attitudes toward women in the workforce, and certainly the liberal US welfare state, known for its minimal workers' rights. Her work calls attention to the need for a more nuanced understanding of how various welfare states serve women's needs.
Zippel explains the timing and the content of sexual harassment policies cross-nationally by focusing both on actors and institutions. In each setting, feminist actors faced a pre-existing set of laws and legal systems. US common law made activism through the courts an attractive avenue for American feminists, but because European civil law limits judges' precedent-setting, such activism was not a useful route for European feminists to pursue. Zippel argues that those desiring sexual harassment regulations in corporatist European countries instead had to seek allies within unions and/or state agencies. Zippel labels the American route to harassment policy “equality through litigation,” the European Union model “equality through supranational actors” and the German model “the political path to adoption.” In the latter two models (mostly male) policy makers were unlikely to face harassed women directly and to harbor more sympathy for men accused of harassment. This was particularly true in corporatist Germany where male-dominated unions and employers had considerable say over policy. As a result, EU and German policy makers were less active in combating harassment than were American judges.
These findings shed light on both the importance, and limitations, of transnational advocacy networks. US-developed expertise raised the issue of sexual harassment in Europe and provided legitimacy to European actors seeking to outlaw workplace harassment. European Union soft law measures did the same for domestic political actors in Germany. In both the EU and Germany, however, local actors also faced a different set of institutional constraints than did feminists in the United States; feminists had to rely on allies among Eurocrats and unions rather than the courts. As a result, sexual harassment policy in Europe takes a different form and is implemented quite differently than in the United States.
Zippel also shows that institutional structures do not remain static. Feminist activism in the courts in the United States created an entirely new realm of case law, encouraged the EEOC to expand its mandate and ultimately created an entire industry of consultants, legal experts, and human resources personnel focused on sexual harassment. The European Union ordered the creation of gender equality offices in the member states which in turn became important actors in the push for improved national laws. Thus social movements face political opportunity structures, but these structures are not set in stone and were instead ultimately changed by the actions of social movements.
Zippel's book provides valuable new information about sexual harassment policy in the US and European contexts and offers scholars some good examples of how TANs work, how social movements and institutions interact, and how certain states serve women's interests. A sequel following up on all EU member states' responses to the 2005 directive to tighten their harassment laws would be welcome!
