«ARTICLES What's Wrong With Sexual Harassment? Katherine M. Franke* In this article, Professor Franke asks and answers a seemingly simple question: ...»
Sexual harassment perpetuates the interlocked structure by which women have been kept sexually in thrall to men and at the bottom of the labor market. Two forces of American society converge: men's control over women's sexuality and capital's control over employees' work lives. 178 Similar to the way in which the status of American blacks of both sexes encompasses personal and economic exploitation, sexual harassment deprives women of personhood by relegating them to subservience through jointly exploiting their sexuality and their work. 17 9 For MacKinnon sexual harassment is sex discrimination because it helps create and further inequality among the sexes. In her view, "[s]exual harassment is a clear social manifestation of male privilege incarnated in the male sex role that supports coercive sexuality reinforced by male power over the job."180 At times she disavows the notion that biology predetermines male aggression,18 1 arguing that biological males are taught to express their sexuality as power and to express power in sexual ways.
Id. at 174.
179. Id. at 177.
180. Id. at 191-92.
See, e.g., CATHArNE A. MAcKiNNON, TowARD A FEMINIST THEORY OF THE STATE 114 181.
(1989) ("Male is a social and political concept, not a biological attribute, having nothing whatever to do with inherency, preexistance, nature, essence, inevitability, or body as such.").
182. MACKINNON, supra note 23, at 178.
183. "Male dominance is sexual. Meaning: men in particular, if not men alone, sexualize hierarchy; gender is one.... The male sexual role, this information and analysis taken together suggest, centers on aggressive intrusion on those with less power. Such acts of dominance are experienced as sexually arousing, as sex itself." MAcKNNON, supra note 181, at 127 (footnotes omitted).
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SEXUAL HARASSMENTApril 1997] struct, she more frequently writes of subordination as something that men inevitably do to women.1 While the formal equality and sex-equals-sexism approaches to sexual harassment have been adopted by a number of courts, the anti-subordination approach has found less judicial acceptance.18 5 Once again, Robinson v.
Jacksonville Shipyards, Inc.,18 6 represents the jurisprudential high water mark in this area. The court in Robinson, more than almost any other court, was willing to regard the shipyards' sexually polluted work environment as an expression of a kind of coercive male sexuality from which female workers could not escape short of quitting their jobs. 187 More typical are cases in which notions of subordination presumably animate the court's willingness to infer that sexual conduct was undertaken because of sex. One might conclude from the Meritor decision 8 8 that the Court embraced the notion that sexual harassment is about sex-based power, while refusing MacKinnon's fundamental insight that the subordination of women is always sexual.
Not surprisingly, the anti-subordination principle has acted as a roadblock to same-sex sexual harassment plaintiffs. Where a man directs offensive sexual conduct at a woman in the workplace, the conduct reproduces a subordinating dynamic that it is widely believed Title VII was intended to address. 189 But when a man directs offensive conduct of a sexual nature at another man, it fails to reproduce that same historical script, or so the argument goes. For this reason, virtually all of the courts that have refused to find a cause of action for same-sex sexual harassment have reasoned either that the conduct did not create an anti-male environment,' 90 or that as a matter of law men cannot be sexuSee, e.g., id. at 114 ("The feminist theory of knowledge is inextricable from the feminist critique of power because the male point of view forces itself upon the world as its way of apprehending it.").
185. MacKinnon notes that the anti-subordination approach is infrequently used in sex and race equality cases: "This approach to inequality is marked by the understanding that sex discrimination is a system that defines women as inferior from [sic] men, that cumulatively disadvantages women for their differences from men, as well as ignores their similarities. Few judicial opinions exhibit this awareness, but its spirit moves beneath most decisions that bestow rights upon women." MAcKmNON, supra note 23, at 116. Ruth Colker makes a similar observation, but wants to take it one step further Although much of the scholarship on equal protection doctrine assumes that the antidifferentiation principle is justifiably the dominant perspective, a comparison of race and sex cases, as well as of constitutional and statutory cases, reveals that the anti-subordination principle better explains both much of the law and the aversion we feel to race and sex discrimination.
Colker, supra note 53, at 1011 (footnotes omitted).
186. 760 F. Supp. 1486 (M.D. Fla. 1991).
187. "'Pornography on an employer's wall or desk communicates a message about the way he views women, a view strikingly at odds with the way women wish to be viewed in the workplace.'...
[Oinly those women who are willing to and can accept the level of abuse inherent in a given workplace-a place that may have historically been all male or historically excluded women intentionallywill apply to and continue to work there." Id. at 1526 (quoting Abrams, supra note 51, at 1212 n.118).
188. 477 U.S. 57 (1986).
189. See Goluszek v. Smith, 697 F. Supp. 1452, 1456 (N.D. Il. 1988) ("The discrimination Congress was concered about when it enacted Title VII is one stemming from an imbalance of power and an abuse of that imbalance by the powerful which results in discrimination against a discrete and vulnerable group.").
190. See notes 320-340 infra and accompanying text.
The gender issue, in this analysis, becomes the issue of what is taken to be "sexuality"; what sex means and what is meant by sex, when, how, with whom, and with what consequences to whom.
Men, therefore, cannot be the victims of sexual harassment because their sexual objectification, either at the hands of women or other men, would not mirror this subordinating social hierarchy. Sexual epithets, thus, "do not demean men as a group, but only demean the recipient by implying that, although he is male, he is not properly a member," or that his male pedigree is otherwise questionable. 193 This less sophisticated form of the anti-subordination principle underlies the courts' findings in many same-sex harassment cases that the conduct complained of does not and cannot violate Title VII. While I agree with Bums' observation that often times the harassment of men does not demean men as a group, I disagree that this insight takes the problem out of a subordination paradigm. Rather, as I develop more fully below, when some men are harassed because they "are not properly a member" of the male sex that the anti-subordination analysis should apply: an account of sexual subordination must include a proscription against the enforcement of intra-sexual gender stereotypes.
MacKinnon has articulated most clearly, and undoubtedly, most prolifically, the view that male sexuality is the principle form and means of women's
191. See, e.g., Ashworth v. Roundup, Co., 897 F. Supp. 489, 493-94 (W.D. Wash. 1995);
Benekritis v. Johnson, 882 F. Supp. 521,525-26 (D.S.C. 1995); Hopkins v. Baltimore Gas & Elec. Co., 871 F. Supp. 822, 834-35 (D. Md. 1994), aff'd, 77 F.3d 745 (4th Cir.) (affirming without relying on the "discrete and vulnerable' group analysis), cert. denied, 117 S. Ct. 70 (1996); Fleenor v. Hewitt Soap Co., No. C-3-94-182, 1995 WL 386793, at *2 (S.D. Ohio 1994); cf Wrightson v. Pizza Hut of Am., Inc., 909 F. Supp. 367, 368 (W.D.N.C. 1995), rev'd, 99 F.3d 138 (4th Cir. 1996).
The court in Chiapuzio v. BLT Operating Corp., 826 F. Supp. 1334 (D. Wyo. 1993), advanced a
slightly different version of this argument:
Taking the point one step further, it also seems peculiar to call sexual harassment of a male by a male, or [of] a female by a female, sex discrimination.... What the harasser is really doing is preferring or selecting some one member of his [own] gender for sexual attention, however unwelcome that attention may be to its object. He certainly does not despise the entire group, nor does he wish to harm its members, since he is a member himself and finds others of the group sexually attractive.
Id. at 1337 n.1 (quoting Ellen Frankel Paul, Sexual Harassment as Sexual Discrimination:A Defective Paradigm,8 YALE L. & PoL'Y REv. 333, 351-52 (1990) (footnotes omitted)); see also Hopkins, 871 F.
Supp. at 833, (quoting from the same passage).
192. MACKMNNON, supra note 181, at 128-29.
193. Bums, supra note 89, at 421 n.397.
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domination. This is a very important insight. Indeed, MacKinnon is so committed to the political, metaphysical, and epistemological power of sex and domination that she rejects the notion that there is anything we can safely regard as "just sex." 194 It was this underlying analysis of the coextensivity of sex and power that formed the basis for her declaring the expression of male sexuality in the workplace a kind of discrimination "because of sex." MacKinnon's subordination analysis is necessary to make the logical bridge here. Unfortunately, her analysis is either too complicated or too radical for most judges. As a result, her work has engendered a sexual harassment jurisprudence in which sex is understood as sexism (when expressed between people of different sexes) according to a jaundiced analysis as to why. It is a theory of the why of sexual harassment that I believe is missing from our sexual harassment jurisprudence.
Judges can't merely insist, based upon their intuitions, that they know it when they see it.
All three accounts of sexual harassment as a form of sex discrimination have, at one time or another, convinced courts that the sexual harassment of working women violates Title VII. At the same time, all three paradigms have proven inadequate in providing an account of how sexual harassment might be a kind of sex discrimination. I believe that the inferences courts now draw in traditional male/female sexual harassment cases make sense. They represent an appropriately efficient method by which female plaintiffs can prove that they have been discriminated against because of their sex. What concerns me is that these inferences are drawn in the absence of an underlying theoretical account of the wrong of sexual harassment. The absence of a coherent doctrine both in traditional different-sex cases, and in more novel same-sex cases has significant consequences, and is ultimately dangerous for the larger project of ending gender-based discrimination and bias. In the following section, I show how the three dominant accounts of sexual harassment do not do the work they promise to do, and that they deflect attention from the real gender-based harm that makes sexual harassment a form of sex discrimination.
Im. A CRITIQUE OF THE PREVAILING CONCEPTIONS OF SEXUALSEX
HARASSMENT AS DISCRIMINATIONThe sexual nature of the offending conduct figures prominently in all three of the dominant accounts of the wrong of sexual harassment. And so it should, given that it is the sexual content of the harassment that sets it apart from all other forms of workplace harassment, and that distinguishes it from sex discrimination more generally. But by locating sex at the center of the analysis, all three accounts make a serious mistake. They obscure the degree to which sex is the method, but sexism is the meaning of sexual harassment. That is, sex is "[the] means through which power is articulated." 195 Even as courts have NlAcKINNON, supra note 181, at 140.
195. JOAN WALLACH Scowt, GENDrR AND THE POLITICS OF HIsToRY 45 (1988).
HeinOnline -- 49 Stan. L. Rev. 729 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 embraced, either expressly, 196 or implicitly, 197 some feminist conceptualizations of sexual harassment as sex discrimination, they have simplified, distorted, and selectively (mis)appropriated the arguments made by feminists in favor of recognizing a Title VII cause of action for sexual harassment.
In this Part, I discuss the ways in which the formal equality, sex-equalssexism, and subordination paradigms in sexual harassment jurisprudence have come to rest upon unprincipled footings. Close scrutiny reveals how these theories reinforce other biased ways of thinking about the relationship between sex and gender, and take us down doctrinal paths that reinforce rather than break down gender stereotyping in the workplace. Ultimately, it is because of these significant flaws in the doctrine as it has developed that I urge a rethinking of the wrong of sexual harassment.
First, I will explain how formal equality-understood as "but for" causation-inappropriately reduces the harm of sexual harassment to the simple expression of sexual desire. The seriousness of this error is starkly revealed in the same-sex cases where it has been magnified and fixed in ways that will haunt both same and different-sex cases in the future. Next, the simple equation of sex with sexism-a dynamic that figures prominently in some of the cases many feminists consider "good" casesI 9 8-portends dangerous consequences for female sexual agency within and without the workplace. Finally, while I regard the anti-subordination view of sexual harassment as the most principled account of the wrong of sexual harassment, this theory must abandon the notion that sexual subordination is something that men, and only men, can do to women, and only women.