"Making Physical and Virtual Sexual Harassment Illegitimate: The US #MeToo Movement and the Israeli Prevention Act"

Abstract

Awareness of sexual harassment as an undesirable and harmful phenomenon has been raised recently through the #MeToo movement. This “wake-up call” has driven women and men to come forward, mainly in the media, and share instances in which sexual harassment happened to them. Although U.S. courts have recognized sexual harassment as illegal against all genders under Title VII, that statute does not mention the word “harassment”; hence, unfortunately, the phenomenon remains largely unreported. Sexual harassment cases based on Title VII are complicated and rely on court decisions and EEOC guidelines that impose many prior procedural conditions. This paper argues that more specific legislation that addresses the prevention of sexual harassment with a broad, up-to-date, theoretically based and preventive perspective would be more accessible, understandable, and ultimately enforceable beyond the workplace. This may lead to a better level of enforcement that will break the victims’ silence against their harassers. This article discusses the Israeli approach to how sexual harassment is tackled. Already coined the most progressive law of its kind in the world, the revolutionary Israeli Prevention of Sexual Harassment Act, 5758-1988 (in this article: the Act or the Israeli Act), has allowed women and other victims of sexual harassment to take legal action against harassers in an efficient and accessible manner. This article also draws on the legendary work of Felstiner, Abel & Sarat, who addressed the transformation process by which injurious experiences turn into perceived grievances and ultimately disputes. These authors claim that transformation studies provide a spotlight to the alleged conflict in the U.S. and explore the question of whether these levels are too low. Following that foundation, this article further develops the transformation theory and analyzes the struggle against the sexual harassment epidemic via the Israeli Act, according to four steps: “Naming, Blaming, Shaming and Amending.” “Naming” identifies the harmful conduct, the hidden mechanism underneath and the outcome of excluding the victims. This is followed by broadly defining sexual harassment to target potential harassers. Blaming attributes guilt to the wrongdoer – the harasser, using enforceable legal steps within the workplace and courts. This results in enforcing legal sanctions against the harasser. “Shaming,” an additional step, is the process of attributing illegal and non-acceptable social values to the harassers, which include public figures. In addition, I argue that a further necessary step to keep the Act relevant with the rapid evolving reality is “Amending.” An example of “amending” is adapting to the new appearance of sexual harassment in digital spheres. This has become a concern that does not go unnoticed, hence the Act’s amendments and its inclusion in the definition of sexual harassment. In addition, this article provides a theoretical analysis to the underlying harassment and explains the phenomenon in both the real and virtual sphere, which excludes women from the workplace and public domain, while violating their rights and shares in the distribution of justice. This article not only joins other scholars and legal practitioners claiming that specific state laws can offer greater protections against sexual harassment, but also suggests a model to increase the enforcement level. While several states, such as California and recently Connecticut, and cities, like New York City, have adopted specific laws against sexual harassment, which represents an important step forward, their approach still reflects a narrow perspective which focuses on anti-discrimination in the workplace. Additionally, many U.S. states still rely on Title VII, which requires complicated perquisite procedures like proving discrimination and meeting other prior conditions. This study article will describe how, despite the #MeToo and other movements, many of the U.S. states have yet to adopt a specific statute to regulate the prevention of sexual harassment, while deliberating in depth the features of the Israeli Act. This article will reflect lessons learned and what characteristics of the Act made it in essence so powerful and influential, among other aspects, in hearing the sound of silence. Policy makers are urged to rethink the current U.S. legal regime that currently places hurdles when it comes to enforcement surrounding this phenomenon.