I Cant to I Kant: The Sexual Harassment of Working Adolescents, Competing Theories, and Ethical Dilemmas
"Where is the legal theory that protects working teenagers from sexual harassment? Where is their lifeboat? Who speaks for our working adolescents and older teens on this subject?2 In 2006, the U.S. Equal Employment Opportunity Commission (EEOC)announced that "[d]uring the height of the summer of 2004, more than 7.1 million young adults age 16-19 were employed."3 Did those teens escape abuse?4 Consider that question while many adults focus on their own welfare. The sexual harassment of adult female workers remains a serious problem;5 however, increasing numbers of teenagers are filing EEOC charges of discrimination.6 In 2001, teenagers filed two percent of the sexual harassment charges with the EEOC.7 By 2004, that number had quadrupled to eight percent.8 Rates are expected to rise. Susan Fineran and James E. Gruber studied the problem of adolescent sexual harassment with a small sample of 260 high school females and found that forty-three percent had experienced some form of sexual harassment at their part-time jobs.9 Youth restaurant workers (62%) experienced more harassment than "care" workers (29%) who engaged in tasks such as babysitting and housekeeping.10 Teens described seventy-two percent of the perpetrators as being older than they were.11 This small study sends an alarming message concerning the safety of adolescent workers and confirms the need for more research in this area. In 1979, long before today's working teenagers were even born, Catharine A. MacKinnon described her subordination theory to justify the prohibition of workplace sexual harassment as discrimination based upon sex.12 She wrote: Women are sexually harassed by men because they are women, that is, because of the social meaning of female sexuality, here, in the employment context. Three kinds of arguments support and illustrate this position: first, the exchange of sex for survival has historically assured women's economic dependence and inferiority as well as sexual availability to men. Second, sexual harassment expresses the male sex-role pattern of coercive sexual initiation toward women . . . . Third, women's sexuality largely defines women as women in this society, so violations of it are abuses of women as women.13 Other feminist legal theorists have added to our understanding of why workplace sexual harassment constitutes a civil rights violation.14 These views may protect some minors. However, unique theoretical and ethical considerations may reinforce the prohibitions against the sexual harassment of teen workers. Any theoretical exploration of the treatment of working minors must deal with several complicating factors. First, the law has never treated adolescents the same as adults.15 Statutory rape laws provide one example of how the law treats adolescent sexual conduct differently than it does consensual adult conduct.16 Based upon the reasoning that those children under the age of consent do not have the capacity to consent, statutory rape laws demonstrate that the law invalidates adolescent "consent"17 under certain circumstances. Second, minors are not simply young adults. Teenagers exhibit different psychosocial, physical, and neurological traits development extends into the twenties, beyond the age of consent set in every state.19 Impulse control, emotional regulation, planning, decision-making, and organization capabilities may not fully mature until the third decade of life.20 In addition, youth experiences may influence the winnowing and reorganization of brain gray matter during adolescence.21 Thus, new scientific research proves that adolescents are human being works in progress. These developmental differences may influence the way that adolescents respond to and cope with sexual harassment.22 According to former EEOC acting Chair Paul Igasaki: [Y]oung people are taught to respect their elders, and despite modern cautions that no one can touch you against your will, it is always difficult to take the risk of coming forward. If people experiencing harassment or unfair treatment are underage, they may be reluctant to talk about the problem with adults. When the problem touches on sex, teenagers may not feel comfortable discussing the topic even with their own parents.23 Thus, experience indicates that teens respond to sexual harassment differently than adults do. We see that the second distinguishing factor, developmental differences, relates to the first complicating factor, differential legal treatment.24 Recognition of the unique nature and status of adolescence clarifies a third complicating factor: adolescent "consent" may signify something different than adult consent and may, therefore, justify unique treatment under the law. Because adult consent (as opposed to mere tolerance or acquiescence) provides a complete defense to allegations of sexual harassment,25 adolescent "consent" must be carefully considered in the analysis of the theoretical and ethical basis for sexual harassment prohibitions. In Parts II and III, this Article considers the legal regulation of sexual conduct and sex-based harassment. Part II explores how socio-legal theory explains the regulation of sexuality. It discusses how such theory might address unique characteristics of teen development and employment to influence the law's treatment of youth sexual harassment and adolescent "consent" to sex. Traditional, liberal, feminist, and pansexual perspectives regarding sexual conduct highlight the tension between safeguarding teen sexual autonomy and protecting maturing adolescents. This tension mirrors the conflict often associated with competing theoretical approaches to child policy, the self-determinist approach and the protectionist, nurturance perspectives.26 Part III briefly reviews sexual harassment legal theory and how it protects adolescent workers. This section also notes the gaps in mainstream sexual harassment legal theory through which adolescents may fall unprotected. Parts IV and V survey philosophical and psychological literature regarding adolescent capacity, legal rights, and ethical conduct. Part IV focuses first on classic philosophers who contemplated juvenile capacity-or the lack thereof. It then discusses adolescent psychosocial development to determine how science might influence the law's redress of the sexual harassment of adolescents. In Part V, this Article explores a Kantian perspective loosely patterned after the "categorical imperative" to formulate a dignity-based foundation for the prohibition of teen sexual harassment. This section answers how the law might respond to teen "consent" and explores the legal treatment of revocation. Finally, Part VI concludes that the sexual harassment of adolescents differs from that of adults. It summarizes how harassment of teens is unique and offers a synthesis of legal theory, ethics, and sexual harassment law. This section invites further dialogue and assistance concerning the theoretical underpinnings for the prohibition of sexual harassment of teenagers by their adult co-workers."