A few weeks ago, I was invited by Jonathan Goldberg of the blog Le mot juste en anglais to review a paper, Les conceptions juridiques du harcèlement sexuel en France et aux USA – Avant et après l’affaire DSK¹, comparing the way in which the law sees sexual harassment in the United States and in France. I am thus in the slightly odd position of reviewing a paper originally written in English, but finalized in its French version, where my review itself is to be written in both English and French! Anyway, back to the point.
One of the opening statements in Abigail Saguy’s article is the affirmation that the Dominique Strauss-Kahn (DSK) scandal could only have erupted in the USA². She then analyses the laws, legislative debate and case law over a period from the 1960s (in the US and rather later in France) to the present, in support of her argument that the scandal has also changed the “political and legal landscape” and “might influence the way in which France deals with sexual harassment cases in the future”.
The body of the article is divided into three main sections: the first outlines the US legal position on sexual harassment, placing the accent on discrimination and corporate responsibility; and the second examines France, emphasizing the authority of the State. Third, Saguy looks specifically at the DSK affair, in particular its treatment by the media, and concludes with some indications of the current legislative situation and possible steps in the future.
Whilst the article sets out and compares a considerable body of laws, giving us a great deal of insight, I personally would have found a timeline diagram extremely helpful to clarify the analysis of the legislation in this area, particularly regarding its rather chequered history in France.
In the early part of the article, Saguy evokes data collected during the course of interviews that she carried out in the 1990s, a painstakingly designed study using four groups of respondents – from the American and French subsidiaries of an American multinational, and the American and French subsidiaries of a French multinational (Saguy, 2003³).
The conclusion drawn from the interviews is that the location of a company, rather than its nationality, decides corporate behavior when dealing with these matters. Two respondents’ comments are also cited – an American for whom all sexual propositions in the workplace are sexual harassment, and a French person who considers that only the most extreme cases of sexual coercion fall into this category.
Rather than summarizing the article in prose, I have chosen to present my overview in table form – as below, but must stress that this is my own interpretation of the content. I have used the abbreviation “SH” for sexual harassment.
|Employers’ financial liability incurred||Employers’ liability less developed|
|Employers establish Terms and Conditions of Employment to punish sexual harassment, & run preventive training||Employers do not consider it is their role to combat or prevent sexual harassment|
|Generally seen as “Puritans”||Generally seen as having a “Latin” nature|
|“Harassment” not appropriate at work||“Harcèlement” a very strong word (repeated/coercion)|
|Laws condemn harassment as discrimination, blocking access to equality||Defined as sexual violence and classed with similar offences such as rape|
|SH seen as a lack of professionalism|
|SH considered bad for profitability|
|Corporate rules broader than letter of the law||EU law acted as an incentive for legislation on SH|
|No federal laws on SH||Two specific laws: in the Criminal Code (repealed/revised) and the Employment Code|
|Case law/interpretations of other laws (e.g. Civil Rights Act)||Concerns about leaving matters up to the judge’s appreciation|
|SH leads to “unfair” market||Less belief in a fair market, seen separately from equal opportunities|
|Law applies to work context, not outside||Not limited to work|
|Since 1991 damages can be awarded for financial and non-financial loss||Damages only of “symbolic” value|
|Higher awareness||Initial media reactions quoting leading intellectuals: “nobody died”, “she was just a servant”. However, current media pressure (if maintained) may be positive for the future|
¹ Saguy, A. C. (2012). Les conceptions juridiques du harcèlement sexuel en France et aux USA – Avant et après l’affaire DSK. Travail, genre et sociétés 28. doi : 10.3917/tgs.028.0033
² Saguy, A. C. (2011). Why a French sex scandal could only start in the U.S. UCLA Today. Retrieved from http://today.ucla.edu/portal/ut/why-a-french-sex-scandal-could-211181.aspx
³ Saguy A. C. (2003). What is sexual harassment ? From Capitol Hill to the Sorbonne. Berkeley CA: University of California Press.
Having a fascination with words 😉 I looked up some dictionary definitions to compare how they reflect the way in which this issue is expressed in the two cultures.
- Le fait de harceler, d’attaquer sans arrêt pour épuiser. (Le-dictionnaire.com)
- Soumettre… à d’incessantes petites attaques. (Dictionnaire Larousse)
- Abus d’une position de pouvoir, de domination afin d’obtenir une faveur sexuelle. (Le-dictionnaire.com)
- Fait d’abuser de l’autorité conférée par des fonctions de travail pour tenter d’obtenir une faveur sexuelle par contrainte, ordre ou pression. (Dictionnaire Larousse)
- Aggressive pressure or intimidation: they face daily harassment by the police. (Oxford)
- (1) To annoy persistently (2) : to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct (Merriam-Webster)
- Harassment (typically of a woman) in a workplace, or other professional or social situation, involving the making of unwanted sexual advances or obscene remarks. (Oxford)
- Uninvited and unwelcome verbal or physical behavior of a sexual nature especially by a person in authority toward a subordinate (as an employee or student) (Merriam-Webster)
Some of you may also remember the 1994 American film Disclosure starring Demi Moore and Michael Douglas (translated in French as “Harcèlement”). We can see from the French translation that the adjective “sexuel” was not seen as necessary in the title to convey its content, and the English title is even more interesting… However, I digress.