Abstract

Excerpted From: Dayle Chung, Jew v. University of Iowa: Title VII and Racialized Sexual Harassment, 27 Journal of Gender, Race and Justice 91 (Winter, 2024) (354 Footnotes) (Full Document)

On October 26, 1988, University of Iowa President Hunter Rawlings pledged in a meeting with women's advocacy groups to make a renewed commitment to the hiring and support of women faculty in light of “disproportionate resignations among women and minority faculty and staff members.” At the time, the University was vigorously defending itself in U.S. District Court against the sexual harassment claim filed by Dr. Jean Jew, a Chinese American professor in the College of Medicine's Anatomy Department. Despite the University's professed commitment to equal opportunity, the Court found that Jew had experienced sex discrimination under Title VII and that the University had knowledge of yet failed to adequately respond to the harassment that spanned over a decade.

Jew v. University of Iowa represents one of the first instances of a successful federal hostile work environment harassment claim by an Asian American plaintiff. Despite the central role of race in the harassment, it was largely absent from the legal record and public discussion of the case. In defending the University, the Iowa Attorney General's Office legitimized and reproduced the slander Jew experienced, erasing her positionality as an Asian American woman and the racialized gender discrimination she experienced. An analysis of Jew's experience solely on the axis of gender would also flatten the complexity of the harassment she endured.

From her initial days at the University in 1973 until Jew filed her lawsuit in the mid-1980s, Jew endured racially demeaning, misogynistic epithets and accusations of sexual promiscuity by her colleagues. Jew disclosed her harassment to several administrators, turning to legal recourse only after they failed to respond to her allegations. While the University claimed to support equal opportunity, it obstructed Jew's efforts to achieve justice and equity and instead aligned itself with her colleagues who had harassed her. Jew argued for legal recognition of her harassment while pushing to make legal recourse more accessible for future plaintiffs seeking discrimination claims. In a searing criticism of the University's inaction, Judge Harold Vietor authored a district court opinion that recognized Jew's novel hostile work environment harassment claim as an actionable sex discrimination claim under Title VII.

Beyond the important legal outcomes, Jew's case was significant due to the extensive mobilization around the case that connected the more narrowly focused litigation to broader institutional inequities. A group of faculty members formed the Jean Jew Justice Committee (JJJC) to publicly pressure the University to drop its appeal of the district court's decision. The district court decision focused on rectifying the damage done to Jew in response to her individual discrimination claim. However, the JJJC more expansively framed the University's opposition to Jew's claims as one instance within an institutional history of denying equal opportunity to women, people of color, and other marginalized groups at the University.

Jew is one of a number of women of color who established the foundation of sexual harassment law, yet her case has generally escaped the attention of historians. Though some scholars have deftly applied an intersectional analysis to Jew's case based on racialized gender stereotypes historically imposed on Asian American women, historians have yet to place Jew's case within the broader context of sexual harassment litigation brought by women of color in the 1970s and 1980s.

Part II details the harassment of Jew and the landscape of sexual harassment law leading up to Jew v. University of Iowa. Part III demonstrates the way in which the University's litigation strategy not only legitimized but also echoed the slanderous comments that Jew's colleagues directed against her as it denied the discrimination she experienced. Part IV discusses Jew and her counsel's legal strategy, whereby they challenged not only limitations on what courts recognized as legally actionable hostile work environment harassment claims but also practical barriers to litigation for future plaintiffs. Following the district court's ruling in Jew's favor, the University appealed. Part V details how faculty-led organizing efforts through the Jean Jew Justice Committee (JJJC) used the district court decision as a platform to pressure the University to drop its appeal. The JJJC-led activism also allowed members of the University community who were not directly involved in the litigation to weigh in on the lawmaking process and vocalize their grievances with the University. Part VI examines the impact of the Jew case within and beyond the University community, arguing that Jew expanded the scope of hostile work environment jurisprudence that had previously treated unwelcome sexual advances as a necessary component of any hostile work environment claim. The Article concludes with an intersectional analysis of Jew's experience.

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For more than a decade between Jew's initial letter to Dean Eckstein in 1979 detailing her experience of sexual harassment to the early 1990s when the University refused to move Robert Tomanek to a different department, Jew faced institutional intransigence, brazen denials of justice, and continuing sexual harassment at the hands of her colleagues. Jew pursued legal recourse at a time when the courts did not recognize her experience as sexual harassment. Forced to seek various avenues for justice, Jew filed a defamation suit against Tomanek and two separate lawsuits against the University and the state Board of Regents, lobbying for changes in state legislation, and expanding access for future plaintiffs. While Jew first sought remedies within the University, it would take the full force of a federal district court decision, as well as the efforts of a faculty committee that galvanized the University to support Jew, to compel the state-supported University to acknowledge the legitimacy of her claims.

The fact that Jew did not bring an intersectional discrimination claim due to the absence of legal precedents should not preclude an analysis of the ways in which Jew's colleagues denigrated her due to her sex and race. A failure to address the racial dynamics of Jew's experiences leaves the University of Iowa's legal attempts to deny the complexity of Jew's experiences of racialized sexual harassment unaddressed. The court's consideration of only sexual advances when evaluating hostile work environment harassment claims “obscures a full view of the conditions of the workplace,” similarly to how ignoring race discrimination when present in sex discrimination cases minimizes the full extent of the harm. As Schultz argues, “[w]hen severed from a larger pattern of discriminatory conduct, sexual advances or ridicule can appear insufficiently severe or pervasive to be actionable.” As considering only explicit sexual advances would have ignored the crux of Jew's sexual harassment complaints, acknowledging only the gender discrimination in cases with clear racial discrimination similarly fails the requirement for a court to consider the totality of the circumstances when evaluating a hostile work environment claim.

An intersectional analysis of Jew's case is important because courts are still hesitant to conclude that rumors about a woman's alleged promiscuity with male colleagues or supervisors constitute discrimination under Title VII. This reluctance persists despite the fact that these rumors draw on “negative stereotypes that a woman must use her sexuality rather than her merit to succeed,” and that “women do not have the necessary qualifications or traits for leadership.” Though in Jew the defense argued that the rumors about Jew were “directed as much to a man ... as they were to her,” a recognition of the racialized nature of the rumors and epithets as well as the historical sexualization of Asian American women and women of color makes this argument seem even more disingenuous. Racially derogatory labels (like “Chinese pussy” and “Terry's 'chink”'--with which Jew's colleagues labeled her), examined alongside the rumors about Jew's alleged affair and thus undeserved professional advancement, clearly show that Jew, not her supervisor, was the target of the harassment. Thus, for plaintiffs who bring race and sex discrimination claims based on rumors, intersectional arguments may provide a stronger rebuttal to claims that rumors were not discrimination because they affected both the harasser and the person being harassed.

Though some federal courts have recognized intersectional discrimination claims under Title VII, there remains a dearth of intersectional case law. As Professor Jamillah Bowman Williams argues, intersectional Title VII claims are often unsuccessful because courts consider racial discrimination claims and sex discrimination claims separately rather than evaluating the cumulative effect of all discriminatory acts. Bowman writes that courts may be less likely to find intersectional plaintiffs credible because “if a person alleges too many discrimination claims based on multiple characteristics, it is more likely that the claims lack merit.” Particularly for Asian American women, “the type of hypersexualization, exoticization, and subordination” they experience “falls outside of the formally protected classifications under civil rights laws.”

To consider the totality of circumstances in a sex discrimination case is to consider all of the ways in which a person is denied the opportunity to succeed in the workplace. This demands a recognition of both explicit and implicit sexual misconduct, both race-based and sex-based discrimination, and discrimination that cannot be neatly categorized as one or the other. Understanding the historical discrimination against women of color is essential for recognizing the way in which rumors about a woman engaging in a romantic or sexual relationship with a male colleague that are grounded in racialized and gendered stereotypes can constitute discrimination under Title VII.

Judicial decisions that acknowledge the numerous ways in which discrimination manifests in the workplace are only one piece of ensuring equal access to opportunity. The vast majority of those who experience harassment and discrimination will not bring forward discrimination claims. There are many who have remained silent due to a lack of financial means, inadequate knowledge of the legal system, reputational risk, and many other barriers. For example, low-wage workers are particularly vulnerable to abuse, and many immigrant workers do not and cannot seek legal recourse due to language barriers and fear of retaliation. Oftentimes, those most vulnerable to harassment are those least likely to seek legal help. Federal and state laws must protect workers against discrimination, particularly where sexual harassment frequently occurs and where workers are less likely to seek redress, including the restaurant and service, agricultural, and domestic and home care industries.

Workplaces must create clear procedures for reporting acts of discrimination so that all employees understand both what constitutes discrimination as well as the process for filing complaints. The process must center the needs of the workers and must make clear that workers will not be retaliated against for making complaints. The JJJC's recommended revisions to the University's sexual harassment procedures as published in the Daily Iowan on April 19, 1991 were a step in the right direction, including recommendations for increased transparency about harassment complaints and clearly stated options for filing complaints. However, these recommendations focused solely on sexual harassment, and it is important to recognize the many ways in which discrimination occurs in the workplace.

A meaningful inquiry into sexual harassment law requires acknowledgement of the contributions of women of color like Jean Jew who fought at the forefront of legal battles. Despite the risk of retaliation, irreparable damage to their professional careers and reputations, and continuous institutional disavowal of responsibility for their experiences, these women demanded recognition and justice in the courts and before the wider public. Yet the full measure of justice demands more than legal victories. Behind every discrimination claim are numerous other individuals with similar grievances who did not have the opportunity or resources to bring these claims to court. It is the responsibility of institutions and the people in positions of authority within them to eradicate discrimination and provide equal opportunities for success, and if they fail to do so, the courts must hold them accountable.