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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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at 1534-38 (addressing the employer's First Amendment concerns and concluding that injunctive relief would not violate guarantee of free speech); Kingsley R. Browne, Title VII as Censorship: HostileEnvironment Harassment and the FirstAmendment, 52 Omo ST. L.J. 481 (1991) (arguing that regulation of harassing speech under Title VII constitutes impermissible viewpoint discrimination and chills speech); Jules B. Gerard, The FirstAmendment in a Hostile Environment:A Primer on Free Speech and Sexual Harassment, 68 NoTRE DAME L. REV. 1003 (1993) (arguing that the EEOC guidelines on sexual harassment are probably facially unconstitutional because they are overbroad, and as applied they sweep in protected speech); Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rv. 1791 (1992) (arguing that harassment law currently regulates too broadly and proposing a new framework by which to draw the line between harassing workplace speech that must be protected and that which may be regulated). These arguments have been answered by those who seek a middle ground between the First Amendment and sexual harassment doctrine, see, e.g., Marcy Strauss, Sexist Speech in the Workplace, 25 HARv. C.R.-C.L. L. REv. 1 (1990) (arguing that courts should balance First Amendment concerns against the state's interest in eradicating sexist speech from the workplace), and by those who see no First Amendment right, see CATHARiNE A. MACKINNON, ONLY VoRDS 109 (1993) (proposing redefining free speech rights to account for the law of equality); Suzanne Sangree, Title VII ProhibitionsAgainst Hostile Environment Sexual Harassment and the FirstAmendment: No Collisionin Sight, 47 RuTGERs L. REv. 461, 475 (1995) (arguing that Browne and Volokh overstate the conflict between the First Amendment and harassment law, and that "First Amendment interests are not substantially furthered by allowing free reign to speech which effectuates discrimination"); Nadine Strossen, Regulating Workplace Sexual Harassmentand Upholding the FirstAmendment-Avoiding a Collision, 37 ViL. L. REv. 757, 777-82 (1992) (arguing that some regulation of workplace sexual harassment is necessary to the advancement of women's equality, but that too much regulation would undermine the goals of both free speech and equality).

152. Demetrius Martin, Appeal No. 01934718, 1994 WL 746784 (EEOC Sept. 29, 1994).

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SEXUAL HARASSMENT

April 1997] determined that he had not made out a prima facie case of sexual harassment because "the terms 'sweetie pie' and 'bitch,' though they appear to be derogatory references to appellant's sexual orientation, are not explicitly sexual in nature."' 53 In Mogilefsky v. Superior Court,1 a male employee charged that his male supervisor violated California's Fair Employment and Housing Act when he ordered Mogilefsky to play a pornographic video and asked how much he would charge to perform acts similar to those seen on film. 155 The state appeals court reversed a lower court's order granting the defendant's demurrer, concluding that conduct of a sexual nature is always "because of sex" for purposes of the statute, "whether motivated by hostility or by sexual interest."' Martin and Mogilefsky, however, represent the minority view of the significance of the sexual nature of the conduct to a claim of same-sex sexual harassment. Unlike the different-sex cases, in same-sex cases brought under Title VII most courts demand that the plaintiff show something more than that the conduct was unwelcome and of a sexual nature. In Vandeventer v. Wabash National Corp.,15 7 for instance, the male plaintiff alleged that a male coworker used obscene language toward him. In ruling on the defendant's summary

judgment motion, the court held:

The words "sex" and "sexual" create definitional problems because they can mean either "relating to gender" or "relating to sexual/reproductive behavior." The two are not the same, but are certainly related and easily confused.

Title VII only recognizes harassment based on the first meaning, although that frequently involves the second meaning. However, harassment which involves sexual behavior or has sexual behavior overtones (i.e., remarks, touching, display of pornographic pictures) but is not based on gender bias does not state a claim under Title VII. 58 The court then went on to state that when a man touches a woman in a sexual manner, it can be presumed that he does so because of her sex, but that such a presumption should not be drawn from intra-male sexual behavior. Something else must be shown in order to establish the "because of sex" element of the prima facie same-sex sex harassment case. According to the Vandeventer court, merely calling the plaintiff a "dick sucker" was not enough, because "[tihis was a common epithet, not a sexual advance." 159 So too, in Johnson v.

Hondo, Inc.,160 the court treated comments such as "suck my dick" as crude, boorish, and vulgar, thus evidencing a grudge match between two male employees, but not discrimination because of sex.161

153. Id. at *4.

154. 26 Cal. Rptr. 2d 116 (Cal. Ct. App. 1993).

155. See id. at 117.

156. Id. at 119.

157. 887 F. Supp. 1178 (N.D. Ind. 1995).

158. Id. at 1181 (footnote omitted).

159. Id. at 1181 n.2.

160. 940 F. Supp. 1403 (E.D. Wis. 1996).





161. Id. at 1410.

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In contrast, however, if a man calls a female coworker a "fucking cunt" this term is not considered a mere epithet. 162 And without question, if a male employee asked a female employee to "suck my dick," no court would hesitate to find a violation of Title VII. Thus, the transparency of the sexism in differentsex harassment does not transfer to same-sex harassment cases. Something more than sexual conduct must be proved to render the conduct sex discrimination.

The Massachusetts Supreme Judicial Court's recent opinion in Melnychenko v. 84 Lumber Company163 provides a salient illustration of the gap between sex and sexism in sexual harassment doctrine. Leonid Melnychenko, James Quill, and Stephen LaRochelle accused the male manager of the lumber store at which they all worked of grabbing their genitals, fondling their buttocks, exposing himself, and asking for blow jobs, among other things. 164 A Massachusetts employee is protected against workplace harassment under two different provisions of the Massachusetts Fair Employment Act. 165 One provision prohibits discrimination "based on sex," which general language has been judicially interpreted to include a prohibition against sexual harassment. 166 A separate provision of the same law, however, renders sexual harassment a per se violation of the law, without requiring that the plaintiff show that the conduct was undertaken "based on" or "because of" the victim's sex.

Upon the urging of the State Attorney General as amicus curiae, 168 the Supreme Judicial Court in Melnychenko ruled that the conduct alleged by the plaintiffs was a per se violation of the Massachusetts Fair Employment Act and did not require that the plaintiffs demonstrate that same-sex sexual harassment was discrimination "because of the victim's sex."' 69 The statute as issue in Melnychenko is, in an important sense, a more honest legislative approach to the problem. That is, by dropping out the "because of sex" or "based upon sex" element of the sexual harassment prima facie case, the Massachusetts legislature codified what was already taking place in most courts.

162. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994), cert. denied, 115 S. Ct. 73 (1995); Zabkowicz v. West Bend Co., 589 F. Supp. 780, 782 (E.D. Wisc. 1984), afT'd in part and rev'd in part, 789 F.2d 540 (7th Cir. 1988). But see Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1168 (7th Cir. 1996) (holding that a man calling a female coworker "bitch" did not, under the facts presented, constitute sexual harassment, but noting that "[tihe terms 'fucking broads' and 'fucking cunts' are more gendered than 'bitch"').

163. 1997 WL 63637 (Mass. Feb. 18, 1997).

164. See Brief Amicus Curiae of Gay & Lesbian Advocates & Defenders, Women's Bar Association of Massachusetts, American Civil Liberties Union of Massachusetts, & Massachusetts Lesbian and Gay Bar Association at 4, Melnychenko v. Lumber Co., 1997 WL 63637 (Mass. Feb. 18, 1997) (No.

07029).

165. See MAss. GEN. LAWS ANN. ch. 151B (vest 1996)

166. See id. § 4(1) (prohibiting discrimination "because of sex"); College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 508 N.E.2d 587, 591 (Mass. 1987) (interpreting the general language pertaining to discrimination "because of sex" to evidence a legislative intent to prohibit sexual harassment).

167. See MASS. GEN. LAWS ANN. ch. 151B, § 4(16A) (West 1996).

168. See Brief of the Attorney General Amicus Curiae at 27-28, Melnychenko v. Lumber Co., 1997 WL 63637 (Mass. Feb. 18, 1997) (No. 07029).

169. See Melnychenko, 1997 WL 63637, at *2.

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April 1997] However, under Title VII, neither the different-sex nor same-sex cases satisfactorily answer the question: What is sexist about sex? In the different-sex cases, for the most part, the link is simply presumed. Yet, in the same-sex cases, many courts observe that Title VII does not and should not be read to collapse sex and sexism-something more is needed for sexual conduct to be considered sexually discriminatory. Both MacKinnon and Estrich want to provide that something more. Estrich's concern with the social construction of male and female sexuality stems from deep skepticism about when or whether sexual conduct between men and women in the workplace can ever take place in the absence of coercion. She finds merit in the assertion that "there is no such thing as truly 'welcome' sex between a male boss and a female employee who needs herjob."'170 To those who say that a male supervisor's advances are not sexual harassment unless the woman objects, Estrich replies: "At the very least, we might demand that such men look for 'love' outside of work, or at least ask for it first."1 7 1 Both Estrich and MacKinnon share a grave doubt that sexual conduct could ever be equally offensive to male and female employees alike.

Based on this, Estrich makes a rather austere recommendation:

As things stand now, we protect the right of a few to have "consensual" sex in the workplace (a right most women, according to the studies, do not even want), at the cost of exposing the overwhelming majority to oppression and indignity at work. Is the benefit to the few so great as to outweigh the costs to so many more? I think not. For my part, I would have no objection to rules which prohibited men and women from sexual relations in the workplace, at least between those who worked directly for the other.

According to this view, men should keep their hands off women in the workplace' 74 and refrain from sex-talk that reflects "the most traditional and most sexist attitudes."' 7 5 Further, sexual relations between coworkers, even if "consensual," should be deemed per se inappropriate in the workplace.' Sexual harassment is sex discriminationbecause it is 3.

sexually subordinating.

The argument has been made that sexual harassment is a kind of sex discrimination either because it violates formal equality principles, or because it is sexual. A third approach advances another way to understand sexual harassment as a kind of discrimination based on sex: it is a practice that subordinates

170. Estrich, supra note 34, at 831.

171. Id. at 828.

172. Francis Olsen could be read to take the same dim view of sex in the workplace. See Francis E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARv. L. REv. 1497, 1551 (1983) ("One explanation for banning sexual harassment is that such behavior does not belong in the marketplace.").

173. Estrich, supra note 34, at 860.

174. See id. at 842.

175. Id.

176. Id. at 860.

HeinOnline -- 49 Stan. L. Rev. 725 1996-1997 726 STANFORD LAW REVIEW [Vol. 49:691 women to men. For MacKinnon, the inequality, or anti-subordination, approach understands the sexes to be not simply socially differentiated but socially unequal. In this broader view, all practices which subordinate women to men are prohibited. The differences approach, in its sensitivity to disparity and similarity, can be a useful corrective to sexism; both women and men can be damaged by sexism, although usually it is women who are. The inequality approach, by contrast, sees women's situation as a structural problem of enforced inferiority that needs to be radically altered.

MacKinnon believes that the inequality or anti-subordination approach best explains the harm of sexual harassment when applied to women's working lives, and has the greatest potential to transform sexually discriminatory workplace

practices through the use of law. She relies heavily upon a subordination account of sexual harassment by defining it in terms of what it does:



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