Article abstract: A pioneer in the development of feminist legal theory, MacKinnon formulated the argument that sexual harassment should be viewed as a form of sex discrimination—an argument that later became embedded in law.
Catharine Alice MacKinnon was born in Minneapolis, Minnesota, in 1946, the daughter of George E. and Elizabeth V. (Davis) MacKinnon. George MacKinnon was a leading figure in Minnesota politics during Catharine’s childhood; he was an adviser to the Eisenhower and Nixon presidential campaigns, served as a U.S. congressman from Minnesota and as Republican nominee for governor, and was appointed by President Richard M. Nixon to serve on the U.S. Court of Appeals for the District of Columbia.
Like her mother and her maternal grandmother, Catharine MacKinnon attended Smith College. She graduated magna cum laude in 1969 with a bachelor of arts degree in government. She went on to study at Yale University, where she did graduate work in political science before being accepted at Yale Law School, where she received her law degree in 1977. (She was awarded the Ph.D. in political science from Yale in 1987.) While at Yale, MacKinnon created the first course in the university’s women’s studies program, and was active in radical politics, working with the Black Panthers and in the campaign against the Vietnam War.
It was while still a law student that she conceived her now-famous argument that sexual harassment is a form of sex discrimination. Since its initial publication, her book Sexual Harassment of Working Women (1979) has been considered to be the definitive work on the subject.
While feminist legal theory has become a firmly established part of the curriculum at most American law schools, this was not the case when MacKinnon first set out; indeed, her pathbreaking work was one of the main influences on the development of this new discipline. The basic premise of feminist legal theory, as advanced by MacKinnon and others, is that the law, as a social institution in a male-dominated (patriarchal) society, reflects the viewpoints, and represents the interests, of men rather than women. According to MacKinnon and other feminist legal scholars, laws against rape are based on men’s conceptions of what constitutes nonconsensual sex, obscenity laws reflect men’s conceptions of offensiveness, and so forth.
During the 1980’s, MacKinnon was a guest lecturer at a number of leading universities, including Chicago, Harvard, Stanford, and Yale. Despite widespread acknowledgment of the significance of her work, however, MacKinnon was not offered a full-time teaching position until 1990, when she obtained a position as tenured professor at the University of Michigan Law School.
Catharine MacKinnon’s first book was the pioneering study, Sexual Harassment of Working Women. The book contains her analysis of harassment, which was taken up by a U.S. Court of Appeals in Barnes v. Costle (1977), and thus provided the theoretical basis for viewing harassment as an offense that transgresses the law. Her basic idea was simple: Sexual harassment is a kind of behavior to which a person is subject because of her sex, and therefore it can be seen as a form of discrimination under Title VII of the Civil Rights Act of 1964, which forbids differential treatment in the workplace on the basis of group membership (race, sex, religion, or other classification).
Barnes was a landmark decision: for the first time, a high-level court went on record as opposing the popular notion that harassment is an inevitable fact of life and that for the law to try to protect against such treatment is equivalent to tampering with the laws of nature. A typical feature of pre-Barnes cases as documented by MacKinnon was the courts’ insistence that what plaintiffs had argued was abusive treatment was merely a normal expression of male sexuality (“boys will be boys,” in effect), where “normal” is assumed to mean something like “natural.” Another typical feature of such cases was the courts’ assumption that harassing behavior was a feature of the unique dynamics of the relationship between two individuals, rather than as a pattern that was made possible by the fact that the harasser is in a position of power vis-à-vis the harassed and so should be seen as an expression of that power.
Thus MacKinnon’s argument, basically endorsed by Barnes, involved two steps: recognizing that certain typical expressions of male sexuality may be abusive despite their being typical; and recognizing the workplace as an environment in which men will tend to harass women because they have the power to do so.
While Barnes was significant, feminists such as MacKinnon considered that its definition of what constituted harassment—basically, “sleep with me or you’re fired” or variations of this sort of quid pro quo—was too narrow. Then, in 1986, the U.S. Supreme Court unanimously decided, in Meritor Savings Bank v. Vinson, that harassment as a legal offense is committed whenever unwanted sexual remarks or behaviors create a “hostile environment” for workers. MacKinnon was part of the plaintiff’s legal team in this case. She wrote Vinson’s brief to the Court, helped her attorney prepare for oral argument, and appeared as co-counsel before the...
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