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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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A. The Mistake of Desire The "but for" formulation of the wrong of sexual harassment, implicit in most different-sex cases, yet explicit in the same-sex cases, has been regarded as an uncontroversial and even principled way of understanding the "because of sex" element of the prima facie sexual harassment case. That courts have turned to the "but for" formulation in order to resolve same-sex sexual harassment cases should come as no surprise, but should give us pause. It is an expedient way of approaching same-sex cases because it derives from the assumption in different-sex cases that sexual harassment is undertaken because of the harasser's unfettered libido. However, in both the same- and different-sex contexts, this account fails to address why sexual harassment is a kind of sex discrimination. At best, "but for" is an evidentiary short cut that Title VII plaintiffs may use in order to prove sex discrimination. As a conception of the wrong of sexual harassment, however, the "but for" formulation threatens to

196. See, e.g., Ellison v. Brady, 924 F.2d 872, 878-79 (9th Cir. 1991) (citing the work of Professors Nancy Ehrenreich and Kathryn Abrams); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp.

1486, 1504-05 (M.D. Fla. 1991) (relying upon the testimony of Dr. Susan Fiske).

197. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) ("Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex.").

198. See, e.g., Robinson, 760 F. Supp. at 1486.

HeinOnline -- 49 Stan. L. Rev. 730 1996-1997

SEXUAL HARASSMENT

April 1997] obscure as much as it illuminates. The error arises when the evidentiary methodology stands for, or worse, is understood to constitute the underlying wrong it is designed to prove.

As noted above, 199 in considering the "because of sex" aspect of the prima facie sexual harassment case in different-sex cases, courts frequently observe that this element "is implicit, and thus should be recognized as a matter of course. 20 0 The assumption that animates such a conclusion is the notion that o

men sexually harass women as an expression of their (hetero)sexuality:

When someone sexually harasses an individual of the opposite gender, a presumption arises that the harassment is "because of' the victim's gender. This presumption is grounded on the reality that sexual conduct directed by a man, for example, toward a woman is usually undertaken because the target is female and the same conduct would not have been directed toward another male.... But when the harasser and the victim are the same gender, the presumption is just the opposite because such sexually suggestive conduct is usually motivated by entirely different reasons.

The Sixth Circuit recently employed this logic in finding that the sexual harassment of Terry Yeary, a man, by Robert E. Lee, a gay male coworker,

amounted to discrimination because of sex:

[This case] is about an employee making sexual propositions to and physically assaulting a coworker because, it appears, he finds that coworker sexually attractive. This is a scenario that has been found actionable countless times over, when the aggressoris a male and the victim is a female.... [Wihen a male sexually propositions another male because of sexual attraction, there can be little question that the behavior is a form of harassment that occurs because the propositionedmale is a male-that is, "because of... sex." 20 2

199. See text accompanying notes 130-135 supra.

200. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990).

201. Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 752 (4th Cir.), cert. denied, 117 S. Ct.

70 (1996); see also Schoiber v. Emro Mktg. Co., 941 F. Supp. 730,738-39 (N.D. I11. ("In an effort 1996) to sort sexual from platonic harassment, courts would be forced to distinguish between locker room antics and sexual foreplay.... Shermer v. Illinois Dep't of Transp., 937 F. Supp. 781, 784-85 (C.D.

);

Cal. 1996) ("[Wlithout proof that a harasser acted out of sexual attraction, it is very difficult for a plaintiff to prove a same-sex hostile environment claim."); Kennedy v. GN Danavox, 928 F. Supp. 866, 871 (D. Minn. 1996) ("To satisfy element three[-the harassment was based on sex-]the harassment must be of a sexual origin.... However, in his deposition testimony [plaintiff] admits that [defendant] did not wish to have a sexual relationship with him, thus belying the notion that [defendant's] conduct was sexual in nature."); Martin v. Norfolk S. Ry. Co., 926 F. Supp. 1044, 1049 (N.D. Ala. 1996) ("[W]ithout the presumption of sexual gratification, there is no evidence that the harasser intentionally singled out the victim for offensive treatment because he was male. Thus, there is no sex discrimination."); Easton v. Crossland Mortgage, Corp., 905 F. Supp. 1368, 1382-83 (C.D. Cal. 1995) ("In the typical hostile environment case-that is, a male supervisor makes sexually suggestive remarks to a female employee-the conduct is presumptively discriminatory.... In a same-gender sexual harassment case, however, conduct of a sexual or gender-oriented nature can not be presumed to be discriminatory.').

202. Yeary v. Goodwill Indus.-Knoxville, Inc., No. 96-5145, 1997 WL 73312, at *6 (6th Cir. Feb.





24, 1997) (emphasis added).

HeinOnline -- 49 Stan. L. Rev. 731 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 The Sixth Circuit construed the facts in Yeary as "as traditional as they come, albeit with a twiSt,"20 3 and left open the question of whether "same-sex sexual harassment can be actionable only when the harasser is a homosexual." 20 4 To regard sexual harassment as a form of sex discrimination because the harasser would not have undertaken the conduct "but for" the sex of the victim is to understand the harasser to have engaged in sexual harassment primarily because he finds the target physically attractive, 2 05 would like to have sex with her or him, and/or derives libidinous pleasure from sexualizing their otherwise professional relationship. Interestingly enough, on this view, the harasser's sexual orientation, either assumed or proven, plays a central role in determining whether the offending sexual conduct was "because of sex." In fact, in these cases "but for" causation collapses into sexual orientation. Under this view, a harasser only sexually harasses members of the class of people that he or she sexually desires. As such, "because of sex," primarily means "because of the harasser's sexual orientation," and only secondarily means "because of the victim's sex."

Many same-sex harassment cases make this aspect of sexual harassment jurisprudence abundantly clear. While proof of the harasser's heterosexuality is never required in different-sex cases because it is merely assumed, proof of homosexuality is frequently required in same-sex cases in order to demonstrate that the conduct was undertaken "because of sex." In McWilliams v. Faifax County Board of Supervisors, 6 the Fourth Circuit held that same-sex sexual harassment claims could be actionable if and only if the defendant were shown to be homosexual: "[T]he fact of homosexuality... should be considered an essential element of the claim, to be alleged and proved. '207 Shortly thereafter, trial courts in the Fourth Circuit began applying the McWilliams rule. In Tietgen v. Brown's Westminster Motors, Inc.,208 the court found that the male plaintiff established a claim for same-sex sexual harassment because the facts made it clear that the defendant was a homosexual man: "it was apparent that these solicitations were in earnest....,"209 In contrast, in Martin v. Norfolk Southern Railway Co.,210 the court dismissed the male plaintiff's Title VII action because the defendant was a heterosexual man.

203. Id.

204. Id.

205. I use the male pronoun simply because sexual harassers are overwhelmingly male. See GUTEK, supra note 30, at 66, 73 (profiling victims and initiators of sexual harassment and concluding that "[tihe most common kind of sexual encounter at work involves a female recipient and a male initiator who behaves the same way toward other women").

206. 72 F.3d 1191 (4th Cir.), cert. denied, 117 S. Ct. 72 (1996).

207. Id. at 1195 n.5. McWilliams involved a developmentally disabled man who alleged that he had been brutally sexually harassed by other men in the county-run auto mechanic shop in which he worked. See id. at 1193.

208. 921 F. Supp. 1495 (E.D. Va. 1996).

209. Id. at 1497.

210. 926 F. Supp. 1044 (N.D. Ala. 1996).

211. "[I]n the case of same-sex heterosexual hostile working environment sexual harassment, the presumption of sexual gratification and thus, sex discrimination, ceases to exist.... Therefore, the court holds that same-sex heterosexual hostile working environment sexual harassment is not actionable under Title VII." Id. at 1049-50; see also Mayo v. Kiwest Corp., No. 95-2638, 1996 WL 460769, at *4 (4th HeinOnline -- 49 Stan. L. Rev. 732 1996-1997

SEXUAL HARASSMENT

April 1997] The Fourth Circuit's approach to same-sex harassment came full circle in Wrightson v. Pizza Hut of America, Inc.,2 12 in which five gay male Pizza Hut employees were charged with sexually harassing heterosexual male coworkers.

After summarizing the Circuit's prior holdings in cases where the harassers were not shown to be homosexual, the panel held that "a claim under Title VII for same-sex 'hostile work environment' harassment may lie where the perpetrator of the sexual harassment is homosexual... [because] 'but for' the employee's sex, he or she would not have been the victim of discrimination."

Prior to the Fourth Circuit's decisions in McWilliams, Tietgen, and Wrightson the sense of anxiety in the courts' opinions in same-sex harassment cases was quite palpable: how were courts to decide these cases based on any principled theory of sex discrimination? The inferences that ordinarily make sexual harassment cases obviously justiciable under Title VII exhaust their utility in same-sex cases. It is at this point, at the margins, that the principles animating the presumptions at the center must be articulated aloud. But the central cases do not provide such a theory. Thus, the Fourth Circuit's "homosexuals-only" rule has operated as a kind of doctrinal oasis for judges handling these cases.

While based on an erroneous theory of sexual harassment, the rule has proven irresistible to many judges desperate for a way to dispose of these unpleasant disputes.

In effect, the "but for" and "homosexuals only" cases mean that when a man harasses a woman in violation of Title VII he does so as an expression of his heterosexuality, and when a man harasses another man in violation of Title VII he does so as an expression of his homosexuality. To limit actionable different-sex sexual harassment to heterosexual sexual desire and same-sex sexual harassment to homosexual sexual desire runs contrary to the uncontroverted principle in Title VII jurisprudence that the "because of sex" language in Title VII does not mean "because of sexual orientation. '2 14 Whatever one might think of this construction of the "because of sex" language in Title VII, in practice all of these cases are about sexual orientation in general, and the sexual orientation of the harasser in particular.

Cir. Aug. 15, 1996); Ward v. Ridley Sch. Dist., No. 94-7480, 1996 WL 570487, at *4 (E.D. Pa. Oct. 4, 1996); Schoiber v. Emro Mktg. Co., 941 F. Supp. 730,738-39 (N.D. II1. 1996); Shermer v. Illinois Dep't of Transp., 937 F. Supp. 781,784-85 (C.D. Il. 1996); Gibson v. Tanks Inc., 930 F. Supp. 1107, 1109 (M.D.N.C. 1996); d Dixon v. State Farm Fire & Cas. Ins. Co., 926 F. Supp. 548, 550-51 (E.D. Va.

1996).

212. 99 F.3d 138 (4th Cir. 1996).

213. Id. at 141-42.

214. See 2 EEOC Comp. Man. (CCH) 3101, § 615.2 example 2 ("If a male supervisor harasses a male employee because of the employee's homosexuality, then the supervisor's conduct would not be sexual harassment since it is based on the employee's sexual preference, not on his gender."); see also Dillon v. Frank, No. 90-2290, 1992 WL 5436, at *7 (6th Cir. Jan. 15, 1992) (holding that "homosexuality is not an impermissible criteria [sic] on which to discriminate with regard to terms and conditions of employment").

215. For a similar insight, see Marcosson, supra note 116, at 32-34 (arguing that sexuality is integrally tied to sexual harassment, and that courts' focus on homosexual plaintiffs' sexuality as a way to remove their cases from the ban on sexual harassment is misguided). See also Levitsky, supra note 140, at 1035 (noting that in traditional sexual harassment cases in which men sexually harass women, courts typically do not raise the issue of sexual orientation, but that in same-sex cases, courts invariably HeinOnline -- 49 Stan. L. Rev. 733 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 Yet, actionable sexual harassment 2 16 should not be understood merely as inappropriate or boorish expression of otherwise healthy or robust heterosexual or homosexual desire. The inclination to normalize sexual harassment reflects a reversion to the primordial ooze of Title VII doctrine evidenced in the Come and Tomkins cases. 2 17 The law and our culture have evolved beyond that rather primitive view. But we can say more. Sexual harassment cannot and should not be understood as sex discrimination just because it may be an expression of sexual desire. Rather, sexual conduct, whether or not motivated by desire, becomes sex discrimination when it operates as a means of enforcing gender norms. To the extent that desire plays a role in actionable sexual harassment, it does so secondarily.



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