"Sexual-harassment law reinforces our cultural fixation on women who invite their abuse," writes Deborah Tuerkheimer in Credible.
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October 5, 2021 7:00 AM EDT
Tuerkheimer is the author of Credible: Why We Doubt Accusers and Protect Abusers. She is a professor of law at Northwestern University and a former assistant district attorney in Manhattan

Melissa Nelson was 20 years old when she was hired to work as a dental assistant for James Knight. Nelson had worked in his Fort Dodge, Iowa, office for more than a decade before he fired her in 2010. The problems began a year and a half earlier. On several occasions, Knight complained to Nelson that her clothing was too tight, too revealing and “distracting.” To mollify Knight, Nelson occasionally wore a lab coat over her clothes, which he viewed as necessary because, he said, “I don’t think it’s good for me to see her wearing things that accentuate her body.” According to Nelson, her clothes were not tight or in any way inappropriate for the workplace.

Nelson viewed Knight as a friend and a “father figure.” She was a parent, as was Knight, and the two would sometimes text each other with updates on their children and mundane happenings. Nelson’s messages were not flirtatious. Knight, however, began a one-sided exchange of sexual commentary, in person and by text. A court would later offer this summary of their interactions:

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One day in early 2010, Knight called Nelson into his office. He had arranged for a pastor from his church to join the meeting as an “observer,” and in the pastor’s presence, Knight told Nelson she was fired. Knight’s wife apparently viewed Nelson as a “big threat” to the marriage. Reading from a prepared statement, Knight told Nelson that their relationship had become a detriment to his family.

When Nelson’s husband heard that she had been fired, he called Knight, who arranged for the two men to meet with the same pastor present. That evening, Knight stressed that Nelson had done nothing wrong, and that she was “the best dental assistant he ever had.” But he said he worried that he was getting too attached to her, and he feared he would “try to have an affair with her” if he didn’t fire her.

Nelson sued Knight. Like federal law, the state’s antidiscrimination statute prohibits an employer from basing an adverse employment decision on a worker’s sex. Knight’s defense was straightforward if strained. Nelson was not fired because she was a woman—which would have been illegal—but because she was a temptation. In response, Nelson pointed out that sexual harassment is prohibited by law. Although she didn’t include a harassment claim in her suit, it would not be right, she urged, for Knight “to avoid liability for terminating her out of fear that he was going to harass her.”

The Iowa Supreme Court disagreed. Knight may have “treated Nelson badly,” but he didn’t unlawfully discriminate against her. As the court saw it, Knight’s actions could be seen as a necessary means to keep him from sexually harassing Nelson. “Even if the reasons for termination are unjust,” said the court in 2013, firing Nelson before she was subjected to a hostile work environment “by definition does not bring about that atmosphere.” Although Nelson may have done nothing wrong, even by Knight’s account, she paid the price for his sexual attraction to her. Yet the law sided with Knight.

This reflects a pattern. Outside law, women are regularly held responsible for controlling men’s sexual urges, turning misconduct into the fault of the victim rather than the abuser. Women who do next to nothing may nonetheless be blamed for their abuse, since their existence alone is seen as temptation enough. As a matter of course, victims are faulted for dressing provocatively, falling asleep on a couch, smiling, engaging in casual conversation, not finding a way to stop the assault or harassment, and so forth. Simply by being, a woman can activate these blaming impulses.

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Sexual-harassment law reinforces our cultural fixation on women who invite their abuse. The leading case on “unwelcomeness” is Meritor Savings Bank v. Vinson, which the U.S. Supreme Court decided in 1986. The story begins more than a decade earlier, when 19-year-old Mechelle Vinson was hired to work as a teller trainee at a small bank in Washington, D.C. Vinson had grown up poor and surrounded by violence. Her previous employment experience was limited to temporary work in an exercise club, a grocery and a shoe store, which made the steady bank job even more appealing.

Vinson alleged that a few months after she began working at the bank, her manager, Sidney Taylor, demanded she have sex with him. She later recounted in an interview with the Washington Post that when she refused, Taylor threatened her. “I said, ‘I don’t want to go to bed with you.’ And he says, ‘Just like I hired you, I’ll fire you. Just like I made you, I’ll break you, and if you don’t do what I say then I’ll have you killed’ . . . And that’s how it started.”

Over the next two and a half years, as described in a brief filed on Vinson’s behalf by a team that included the legal scholar Catharine MacKinnon, Taylor subjected Vinson to “repeated outrages of sexual attention,” including “40 or 50 episodes” of forced intercourse. Vinson also described how Taylor fondled her, exposed himself to her and barged in on her in the bathroom, and how she, over and over again, asked him to stop.

She chose not to file a formal complaint because she couldn’t risk losing her job. “This man would fire me, my God,” she recalled thinking, “I need my job.” When the stress from the harassment and assaults forced her to take sick leave, Vinson was fired. At a meeting with a matrimonial attorney about pursuing a divorce from her husband, she happened to describe her suffering at work and was referred to an employment-discrimination lawyer. She later sued the bank and Taylor, who steadfastly denied all of her accusations.

The case was tried before a judge, who allowed the defendants to introduce evidence that Vinson wore “low-cut dresses,” “low-cut blouses” and “extremely tight pants.” The judge also permitted a co-worker to testify that Vinson “had a lot of sexual fantasies” and “talked quite a bit about sex.” The judge heard from Vinson and from several coworkers who witnessed repeated incidents of her abuse and experienced similar misconduct themselves. At the end of the trial, the judge found for the defendants. Any “intimate or sexual relationship” between Vinson and Taylor was “a voluntary one by plaintiff having nothing to do with her continued employment,” concluded the judge. Put simply, Vinson “was not the victim of sexual harassment and was not the victim of sexual discrimination.”

Why wasn’t Vinson credible when she claimed that Taylor’s sexual advances and abuse harmed her? Evidence admitted at trial about her dress and sexual fantasies tapped into longstanding myths about Black women’s promiscuity. “All too often,” wrote her lawyers when appealing the decision, “it is Black women like Ms. Vinson who have been specifically victimized by the invidious stereotype of being scandalous and lewd women, perhaps targeting them to the would-be perpetrators.” Vinson was cast as a woman who deserved her abuse “because she asked for it, we know she asked for it, because she is a temptress, a seductress, a lascivious woman,” her trial attorney had objected. As the legal scholar Tanya Hernández emphasizes, “stereotypical presumptions of African American women very likely contributed to the outcome.”

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Vinson’s case eventually made its way to the Supreme Court, posing the question whether sexual harassment in the workplace violates federal antidiscrimination law. In a landmark victory for victims, the Court held for the first time that sexual advances constitute a form of unlawful discrimination when they create a “hostile work environment.” The Court wrote: “The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome,’” instructing that the “correct inquiry” is whether Vinson “by her conduct indicated that the alleged sexual advances were unwelcome.”

The creation of the unwelcomeness test tempered Vinson’s win. The focus would now be trained on her and on all accusers going forward. What mattered was how Vinson showed Taylor that his sexual overtures were not welcome. To this end, the Court blessed a searching inquiry into the victim’s conduct and appearance. Vinson’s “sexually provocative speech or dress” was said to be “obviously relevant” to whether she found the sexual advances unwelcome. This legal framework—which the Supreme Court handed down to the lower court resolving Vinson’s claim—remains in place today.

Joseph Sellers is the D.C. lawyer who represented Vinson after the Supreme Court remanded her case and before the parties ultimately settled in 1991, 13 years after Vinson sued. This final phase of the litigation was shaped by the Court’s newly announced unwelcomeness standard, which Sellers immediately realized would impose an unfair burden on Vinson and countless victims going forward. Vinson was a young “single mom and terrified at the prospect of disappointing or upsetting Taylor,” who had enormous control over her ability to make a living. But in that motel room, “Nobody locked the door. Nobody put a gun to her head,” Sellers says. This could have been held against his client, who submitted to intercourse with Taylor that day. “The question was whether she had shown—and it was viewed as a burden on her to show—that the conduct was unwelcome.” If Vinson didn’t do enough in this regard, the blame was on her.

Since handling Vinson’s case, Sellers has spent many decades representing victims of sex discrimination. He views the unwelcomeness test as a poor fit for the workplace with its myriad power imbalances. “In my experience,” Sellers relates, “it’s very rare that, where an overture is made by somebody with considerable power over the woman’s future, the person says something as direct as, ‘Please don’t do that. That makes me uncomfortable.’ Instead, they make excuses. ‘Well, I’m sorry, I’m busy tonight. I’m busy tomorrow night.’”

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The question at trial, if a case makes it that far, is whether the victim’s conduct is sufficient to demonstrate unwelcomeness. This inquiry readily lends itself to blame-shifting. Particularly when the relationship between the harasser and his target is hierarchical, an accuser may not be positioned to do enough to be seen as a victim rather than an enabler. When victims are especially vulnerable, they are unlikely to satisfy the legal burden imposed on them. Without power in the workplace, a woman will find it difficult to directly confront her abuser about the unwelcomeness of his behaviors, leaving her a prime target for whatever comes her way.

Blame-shifting gives a gigantic pass to abusers—and it’s a dominant feature of our culture and our law. A primary function of what I call the credibility complex is to hold accusers responsible for their abuse while absolving the offender of responsibility. This preserves familiar structures—however hierarchical—in which the collective, particularly its most powerful members, is deeply invested.

Tuerkheimer is the author of the Credible: Why We Doubt Accusers and Protect Abusers, from which this essay is adapted.

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