Abstract

Hostile Environment?

The Development of Sexual Harassment Law in the United States 1971 - 1991

by Pamela Coukos

Doctor of Philosophy in Jurisprudence and Social Policy

University of California, Berkeley

Professor Lauren B. Edelman, Chair

How did the sexual harassment litigation campaign succeed in defining a new antidiscrimination principle in the midst of the Reagan-era backlash against civil rights? In 1986, the U.S. Supreme Court definitively established sexual harassment as a violation of Title VII. Meritor v. Vinson, 477 U.S. 57 (1986). This unanimous conclusion, with an opinion drafted by conservative jurist William Rehnquist, capped a series of victories for sexual harassment plaintiffs in the federal appellate courts. This feminist revolution gained steam at the same moment as the Reagan-era conservative backlash against civil rights law began. Legal accountability for sexually hostile work environments seemingly developed in a hostile political environment.

My aim is to use this case to ask when and how organized rights mobilization can be effective despite a seemingly hostile political climate. In particular, I explore the role of litigants, who make important decisions about how rights are contested in our legal system. The work of parties in general, and social movements in particular, remains both relatively under-theorized in public law, and frequently absent from prominent empirical works.

Working from findings of socio-legal literatures on claims mobilization, law and organizations, and law and social movements, I identify and assess potential explanatory factors: (1) characteristics and strategies of the individuals, lawyers, and movement organizations who engaged the legal system for and against this claim; (2) the political opportunity structure; (3) networks and resources provided by organizations and professionals, which act to construct and diffuse legal meaning and engage the legal system and (4) how law itself serves as a resource to movements and individuals mobilizing rights. While this literature, taken together, provides a potential theoretical framework, little prior work specifically addresses how social movements use law to overcome politically hostile opponents.

In a multi-method study I ultimately conclude that a combination of historically fortuitous timing, differences in organization and engagement between proponents and opponents, and the effect of path-dependent legal decisionmaking made it possible to defend a liberal legal expansion during a period of civil rights retrenchment. I also find evidence that the shift in partisan control had a lagged negative effect on plaintiff success rates.

Illegal alienage in the U.S. is among the most visible contemporary symbols of law's failure, or rather of its failure to determine fully the state of the world through its declarations. The two major arguments of this dissertation flow from this insight. The dissertation makes two distinct, but related arguments about: 1) the fragmented nature of contemporary U.S. "(illegal alienage) law in action" and by extension, contemporary law and state power; and 2) latent normative implications of "work" in contemporary America.

First, this study of "illegal alienage in action" shows in detailed relief how modern U.S. "law in action" is not the product of a unified or unequivocally speaking sovereign, but rather a result of the organizationally and institutionally mediated actions (or careful attempts at "inactions") of often conflicting sets of street-level bureaucrats in a federal administrative state. These bureaucrats are often overwhelmingly concerned with their own unique normative goals rather than with illegal alienage. This dissertation demonstrates how the institutionally mediated actions of various bureaucratic officials matter even, or especially, for something as seemingly one dimensional as "belonging" or "not belonging" in the United States.

Second, in light of the fact that justice in matters of immigration and alienage is particularly uncertain, an important question of what, besides "the prior pronouncements of the federal government" has normative salience vis-a-vis illegal alienage emerges. Put slightly differently, the operative questions here are: On what normative ground do illegal aliens most successfully make claims against the state or against the citizens of the state? And relatedly, on what normative ground do street level bureaucrats most successfully intervene to protect or expand the rights of illegal aliens within their jurisdictions? This dissertation will show how "work" or "labor" is the normative ground that undergirds both of these processes, and it will consider the political theoretical importance of this.

The 1919 Michigan Supreme Court case Dodge v. Ford Motor Company has come to stand for the common belief that the primary purpose of all corporations is to create shareholder wealth. This unfortunate misinterpretation of the opinion has never fit comfortably with the reality of business practices or academic theories of the corporation and its state-sanctioned role in the marketplace. The tension between caselaw and reality has only increased in the century since Dodge was decided, and has ultimately culminated in the first direct challenge to the shareholder primacy norm: public benefit corporations, for-profit firms that are required by charter and law to pursue at least one prosocial goal in addition to monetary gain. I argue that the increasing influence of public benefit corporations represents the first unavoidable crisis facing Dodge v. Ford caselaw and its progeny, one that creates increasing risk of deadweight loss and ought to be addressed by both Congress and the courts. This turning point in the demographic composition of business also offers social planners a unique opportunity, however, to address the current defects in the law’s approach to the social obligation of incorporated firms without overturning the unfortunate but nevertheless settled precedent. Specifically, this crossroads in the evolution of corporations and their place in modern society provides a chance to: (1) Remedy flaws in the regulation of corporate charity so that good- and bad-faith donations can be distinguished, and (2) Radically improve corporate governance mechanisms to allow social enterprises to thrive.

Sitting at the heart of determining eligibility for asylum, and therefore the most crucial part of a claim that for many means the difference between life and death, the importance of demonstrating credibility cannot be overstated. Yet credibility does not lend itself to straightforward quantification or measurement, and those measures on which we do rely are imperfect and highly subjective. This dissertation asks how the evolution of cultural ideas about credibility shape the form of asylum claims, and in light of this process, how asylum-seekers navigate competing demands to make credible claims of persecution and fear. I argue that by analyzing asylum narratives we can observe the nature and function of credibility both in the specific institutional context of adjudicating claims, and in the broader political and cultural contexts of defining and measuring truth. To understand how asylum seekers legally and discursively construct credibility I ask: (1) How do asylum seekers construct credibility in their written and oral narratives? (2) How are claims shaped by the institutional environment in which decisions are made and the evolution of cultural ideas about credibility? (3) How are the construction and contestation of credibility informed by the nature of the claimant’s identity and experience? and, lastly (4) How and why does the construction and contestation of credibility change over time?

The past half−century has seen a surge in consumer protection laws designed to give consumers power versus businesses. This dissertation shows how business organizations, namely, automobile manufacturers, shape the content and meaning of consumer protection laws designed to regulate them in ways that transform and at times weaken the rights of consumers. Through qualitative and quantitative analyses, I analyze the process through which public legal rights are essentially privatized as manufacturers influence the form and content of consumer warranty legislation (&Idquo;lemon laws”), the nature of administrative regulation, and most importantly, the way in which consumer complaints are adjudicated. This study compares an instance where powerful state consumer protection laws are resolved in third−party dispute resolution forums created by business organizations and approved by the state (California) with one in which consumer disputes are resolved in public alternative dispute resolution processes run and administered by the state (Vermont). After explaining how two states channeled public legal rights into different institutional structures, I show that the form of the organizational dispute resolution structure influences the meaning of lemon laws in different ways based on competing business and consumer logics operating among public and private actors that adjudicate consumer disputes. Thus, the form of the dispute resolution structure, and how public and private actors construct what lemon laws mean in these structures, has critical implications for the effectiveness of consumer protection laws for consumers.

This research has important implications for theory, method, and policy. Theoretically, my study draws upon and elaborates new institutional work in organizational sociology (Edelman 1990, 1992; Edelman, Uggen, & Erlanger 1999; Dobbin et al. 1993; Sutton et al. 1994) and analyses of business influence over legislation and regulation by political scientists (Baumgartner & Jones 1993; Ayres & Braithwaite 1991; Stigler 1971; Bernstein 1955) by offering an institutional−political theory of how private organizations shape the content and meaning of public legal rights. It also contributes to law and society scholarship on dispute resolution in organizations (Galanter & Lande 1992; Edelman & Suchman 1999), studies of the law in action (Macaulay 1963), and access to justice (Felstinger, Abel & Sarat 1980−81). In addition to using a wide range of methods (archival analysis, interviewing, participant observation, content analysis, and statistics), I specifically use qualitative methods to examine how law is constructed by an &Idquo;organizational field,” in this case the field of automobile manufacturers, an arena that has previously been studied primarily through quantitative analyses. Whereas quantitative analyses illustrate the macro−dynamics of organizational fields and the diffusion of legal innovations, qualitative methods allow me to identify the micro−processes and mechanisms through which organizations construct the meaning of law. From a policy perspective, my work has critical implications for the growing body of legal scholarship on delegated governance. Whereas much of this scholarship advocates deregulation, public−private partnerships, and organizational self−governance in the context of delivery of services and benefits in society, my analysis sounds a note of caution. At least in the context of adjudicating public legal rights, I show the privatization of dispute resolution by business organizations has potential to undermine the rights of social have−nots.

This dissertation examines the impact of litigation on a social movement's dominant substantive goals and message. While scholars have devoted substantial attention to the study of social movement litigation, research in this area typically focuses on how social movements affect substantive law, or more broadly, how a movement's legal tactics bring about social change. By contrast, my focus in this dissertation is on how litigation affects the social movement itself. In particular, how does litigation as a tactic shape a social movement's collective agenda? How does it affect which perspective among possible competing visions comes to define the movement?

I investigate these dynamics through a case study of the lesbian, gay, bisexual, and transgender (LGBT) movement from 1985 to 2008. The study involves three phases of original empirical research, each of which investigates a potential mechanism that may privilege litigation over other tactics in its ability to set the LGBT movement's primary substantive agenda. First, I use a content analysis of newspaper coverage of LGBT politics to determine which movement tactics have received the most media visibility. Second, I perform a statistical analysis of LGBT organizations to determine which movement tactics have been most associated with organizational survival and stability. Third, I perform a qualitative analysis of a subset of those LGBT organizations to examine variation in the strategy-formation processes used by primarily litigation-, lobbying-, or protest-based movement groups.

The media content analysis revealed that litigation received more news coverage than any other LGBT movement tactic, suggesting that litigation had greater visibility than other tactics. In addition, the statistical analysis revealed that the movement organizations that used litigation had greater survival rates than other types of LGBT movement organizations, suggesting that litigation has been a particularly stable feature of LGBT politics. The qualitative analysis of LGBT organizations revealed further insights into how litigation may influence the agendas of non-legal movement actors. Whereas litigating LGBT movement groups proactively pursued preplanned organizational priorities, protest groups formed their agendas reactively, focusing on the issues covered by the mainstream media. This phenomenon appears to have diverted protest groups away from their original priorities and toward the issues that the media found newsworthy. Given my findings that litigation coverage dominated news headlines, the processes identified here may enable litigation to dominate protest activism as well. Taken together, these findings suggest that the media visibility and stability of social movement litigation may contribute to the prominence of litigation and cause legal goals to dominate the movement's overall substantive agenda. I describe this process as the "legalization" of a social movement's agenda.

This dissertation makes a novel contribution to existing scholarship by exposing systemic processes that may privilege movement litigation relative to protest, elevating the issues being litigated to top movement priorities. Significant implications follow for theories of law and social change. Focusing on litigation narrows a movement's agenda because courts offer a forum for only those grievances that can be translated into legal claims. This may be particularly problematic for movements that base their legal claims in antidiscrimination law, which has become settled around quite limited understandings of equality as formal access to equal opportunity and discrimination as an intentional, individual harm. This interpretation not only denies remedies for the structural factors most responsible for perpetuating inequality, it also places the focus on preventing individual wrongdoing rather than producing substantive outcomes. Thus, when antidiscrimination litigation comes to define an equality movement's priorities, the movement may find itself privileging issues with little hope of creating substantive social transformation.