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«ARTICLES What's Wrong With Sexual Harassment? Katherine M. Franke* In this article, Professor Franke asks and answers a seemingly simple question: ...»

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ARTICLES

What's Wrong With Sexual Harassment?

Katherine M. Franke*

In this article, Professor Franke asks and answers a seemingly simple

question: why is sexual harassmenta form of sex discriminationunder Title

VII of the Civil Rights Act of 1964? She argues that the link between sexual

harassment and sex discriminationhas been undertheorized b9 the Supreme

Court. In the absence of a principled theory of the wrong of sexual harassment, Professor Franke argues that lower courts have developed a body of sexual harassmentlaw that trivializes the legal norm againstsex discrimination. After illustrating how the Supreme Court has not provided an adequate theory of sexual harassmentas sex discrimination,she traces the theoretical arguments advanced by feminist scholars on behalf of a cause of action for sexual harassmentunder Title VII: 1) it violatesformal equality principles; 2) its sexism lies in the fact that the conduct is sexual; and 3) sexual harassment is an example of the subordination of women by men. Professor Franke provides a critique of each of these accounts of sexual harassment, in part, by showing how each is unable to provide an account of whether same-sex sexual harassmentshould be actionableunder Title VII. She argues thatflaws in both the theory and the doctrine are amplified in the marginal cases of same-sex harassment. Professor Franke then argues that the discriminatory wrong of sexual harassment, between parties of different or same sexes, should be understood as a technology of sexism. That is, the sexism in sexual harassment lies in its power as a regulatorypractice thatfeminizes women and masculinizes men, renders women sexual objects and men sexual subjects.

I. INTRODUCTION

What exactly is wrong with sexual harassment? Why is it sex discrimination? The time has come to ask these seemingly simple questions anew. The gravity of the problem of sexual harassment together with its doctrinal comAssociate Professor of Law, University of Arizona College of Law. I have benefited tremendously from thoughtful comments on previous drafts of this article from Tracy Higgins, Kathryn Abrams, Toni Massaro, Susan Sturm, Deborah Rhode, Linda McClain, Jane Kom, Sally Goldfarb, Sherry Colb, Janet Jakobsen, and Barbara Gutek. Particular thanks to Julie Goldscheid who time and again helped me work through the hardest parts of the argument. An earlier version of the article was presented as part of the Women's Studies Colloquium Series at the University of Arizona and at the University of Arizona College of Law and Stanford Law School Faculty Workshops. I thank the participants for their insights and engagement with this topic. My grateful thanks to Kim Ellis for her able research assistance. My research was supported by a grant from the University of Arizona College of Law.

HeinOnline -- 49 Stan. L. Rev. 691 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 plexity demand a clear, careful, and principled argument that some workplace sexual conduct is a form of sex discrimination. In this article, I undertake to make that argument, and in so doing, reveal cracks in the doctrine as it has evolved in the almost twenty years since the concept of sexual harassment was introduced to the law--cracks that are in great need of repair.

Why is it necessary to make this argument today, more than ten years after the Equal Employment Opportunity Commission and the Supreme Court first embraced the notion that sexual harassment is a form of sex discrimination?

Indeed, each year the federal courts entertain hundreds of sexual harassment claims under Title VII, 1 without ever questioning the underlying link between sexual harassment and sex discrimination. While our intuitions may lead us to conclude that when a man directs offensive sexual conduct at a female colleague, sex discrimination is afoot, the Supreme Court has not offered a theory as to why this is the case. In MeritorSavings Bank, FSB v. Vinson,2 the Court concluded, without argument, that "[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex."' 3 Over time, the Supreme Court has provided lower courts with an ample description of the what of sexual harassment, 4 without ever providing a sufficient account of why sexual harassment is actionable under laws prohibiting discrimination because of sex.

There are at least two ways to explain why the Court has been so penurious in its theorizing about sexual harassment; one more cynical, the other more generous. First, the lack of an articulated theoretical link between sexual harassment and sex discrimination could reflect an avoidance technique: The MeritorCourt was not prepared to embrace Catharine MacKinnon's theory of sexual harassment that conflated male sexuality with the subordination of women. 5 Yet the Court may have been convinced that the sexual harassment of women by men reflects a kind of gendered power that Title VII is designed to address. In stating a legal conclusion and then proceeding to evidentiary finer points, the Court could avoid a difficult doctrinal question while recognizing the sexism in sexual harassment. So might argue the cynic.

On the other hand, the Meritor Court may have believed that nothing more need be said about why sexual harassment is sex discrimination. On Meritor's facts, 6 where a man is charged with sexually harassing a woman, and the conduct is severe or pervasive, unwelcome, and hostile to a reasonable person, the





Court may have regarded the conduct as a kind of per se violation of Title VII:

I. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994).

2. 477 U.S. 57 (1986).

3. Id. at 64.

4. To be actionable under Title VII, conduct of a sexual nature must "be sufficiently severe or pervasive," id. at 67, so as to "create an abusive working environment," id. (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). The conduct must also be unwelcome, id. 68, and reasonably at perceived as hostile or abusive, Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

5. For a discussion of MacKinnon's theory, see text accompanying notes 177-194 infra.

6. In Meritor,Mechelle Vinson alleged that her male supervisor "suggested that they go to a motel to have sexual relations.... [He also] made repeated demands upon her for sexual favors..... fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions." 477 U.S. at 60.

HeinOnline -- 49 Stan. L. Rev. 692 1996-1997

SEXUAL HARASSMENT

April 1997] "[S]ex discrimination plain and simple." 7 I am among those who believe that it is both reasonable and efficient to draw this inference in the typical sexual harassment case where a man subjects a woman to offensive sexual comments, come-ons, or physical abuse. But drawing this inference based upon our intuition that sexism is what this conduct means must take place within the context of a theory of why sexual harassment is, or can be, a form of sex discrimination. The inference we draw in the central cases is an efficient application of what principle?

Although the Supreme Court has not provided such a theory, feminist theorists and lower courts have attempted to do so. Over time, three principal justifications have emerged for considering workplace sexual harassment a violation of Title VII's proscriptions against discrimination "on the basis of sex"8 : (1) it is conduct that would not have been undertaken but for the plaintiff's sex; (2) it is conduct that violates Title VII precisely because it is sexual in nature; and (3) it is conduct that sexually subordinates women to men.

Each of these approaches to the wrong of sexual harassment has formed the foundation for successful litigation challenging sexually hostile working environments under Title VII. Yet to varying degrees, all three of these paradigms fail to provide an adequate account of why sexual harassment is a form of sex discrimination. In this article, I will show that these theories of the wrong of sexual harassment don't do the work they purport to. When pressed, they provide indeterminate and unprincipled outcomes to both central and marginal cases of sexual harassment. What is more, these theories misdirect attention from the real problem: sexual harassment is a sexually discriminatory wrong because of the gender norms it reflects and perpetuates.

According to the theory I develop herein, the sexual harassment of a woman by a man is an instance of sexism precisely because the act embodies fundamental gender stereotypes: men as sexual conquerors and women as sexually conquered, men as masculine sexual subjects and women as feminine sexual objects. If a "technology" is a manner of accomplishing a task, or the specialized aspect of a particular field, 9 then sexual harassment is both the manner of accomplishing sexist goals, and the specialized instantiation of a sexist ideology. Sexual harassment is a technology of sexism. It is a disciplinary practice that inscribes, enforces, and polices the identities of both harasser and victim according to a system of gender norms that envisions women as feminine, (hetero)sexual objects, and men as masculine, (hetero)sexual subjects. This dynamic is both performative and reflexive in nature. Performative in the sense that the conduct produces a particular identity in the participants, and reflexive in that both the harasser and the victim are affected by the conJ.E.B. v. Alabama ex reL T.B., 511 U.S. 127, 157 n.1 (1994) (Scalia, J., dissenting) (addressing sex discrimination in the context of peremptory strikes against women).

8. Title VII prohibits discrimination in hiring, firing, compensation, or terms, conditions, or privileges of employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2 (1994).

9. See WEBsmER's THiRD NEv INTE NATioNAL DICTIONARY 2348 (Philip Babcock Grove ed., 1993).

HeinOnline -- 49 Stan. L. Rev. 693 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 duct. The account I suggest provides a better theoretical context from which to draw the inference that, in cases like Meritor, the sexual harassment of women by men, "without question," is discrimination "because of sex."10 At the same time, this framework has the advantage of furnishing a principled way to approach the increasing number of new sexual harassment cases at the margin involving same-sex sexual harassment. Neither the existing Supreme Court account of sexual harassment, nor the three dominant theories of the wrong of sexual harassment can provide an adequate or principled answer to these two questions: (1) why should we draw the inference, in cases like Meritor, that sexual harassment is sex discrimination?; and (2) does the sexual harassment of a man by another man constitute sex discrimination?

In the late 1970s and early 1980s, feminist theorists and litigators began to depict sexual harassment as an instrument of sexual subordination. Rejecting the notion that sexual harassment was a private, interpersonal kind of sexual mischief, feminists began to regard it as a species of sex discrimination, committed because of sex, and therefore vulnerable to legal attack. That courts adopted this view of sexual harassment was a tremendous victory for women.

In the years since 1977, when the first appellate court held that sexual harassment was a form of sex discrimination,' the conclusion that conduct of a sexual nature was "based on sex" has come to go without saying.12 In most contemporary sexual harassment cases, when a woman alleges that her workplace became hostile or intimidating due to a man's or men's unwelcome sexual conduct, courts neither require her to prove, nor do courts make the argument themselves that the conduct was based on sex.

The jurisprudential shorthand by which courts have come to assume that some sexual conduct is sex discrimination, frequently reflects a kind of jurisprudential laziness that is best stirred from its malaise. This is not to say that in many, or even most, cases it isn't fair to make such a leap. Rather, my aim is to highlight how some courts, and some theorists, have lost sight of why such a leap is possible and desirable according to a feminist analysis of sexual harassment. Not readily apparent in traditional cases, this laziness is amplified when viewed at the margins of sex discrimination doctrine-the same-sex sexual harassment cases. These cases make clear that the time has come to reaffirm the view that sexual harassment is a kind of gender subordination, and they demand that we not merely assume, but also provide an account of why this is the case.

No longer a hypothetical counterexample, sexual harassment claims filed by persons of one sex against another person of the same sex are being litigated in large numbers in the federal courts under Title VII. As of this writing, scores of same-sex sexual harassment cases have been decided by federal disU.S. at 64.

11. Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).

12. See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990) (stating that "[tihe intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course").

HeinOnline -- 49 Stan. L. Rev. 694 1996-1997

SEXUAL HARASSMENT



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