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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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invoke a victim's sexual orientation as a reason for dismissal). Of course, gay people in the workplace are caught in a double bind: when a gay male employee is sexually harassed because he is gay, courts feel compelled to hold that Title VII is limited to discrimination on account of sex, not sexual orientation. See, e.g., Dillon, 1992 WL 5436, at *1. Yet when a gay male employee is doing the harassing, courts have been inclined to hold that the offensive conduct is sex discrimination because of the defendant's sexual orientation; that is, he or she would not have engaged in the conduct but for the sex of the plaintiff. See, e.g., EEOC v. Walden Book Co., 885 F. Supp. 1100 (M.D. Tenn. 1995) (gay male harasser); Pritchett v. Sizeler Real Estate Management Co., No. CIV.A. 93-2351, 1995 WL 241855, at *1E.D. La. Apr. 25, 1995) (lesbian harasser). Therefore, the principle that sex is a concept distinct from sexual orientation is invoked to deny protection to targets who are gay, yet the conflation of these two terms is necessary to find a harasser liable under current Title VII doctrine. As such, gay men and lesbians are subject to all of the law's prohibitions and penalties, yet enjoy none of its protections and remedies. To add insult to injury, one court has held that the sexual harassment of a heterosexual man by homosexual coworkers, because he was hired to fill what "was 'commonly known as a "gay" job,"' was actionable sex-based, not sexual orientation-based discrimination. Matthews v. Superior Court, 40 Cal. Rptr. 2d 350, 352 (Cal Ct. App. 1995).

216. I limit my observations to actionable sexual harassment because current sex discrimination doctrine limits Title Vi's application to sexual conduct that is linked to the grant or denial of an economic quid pro quo and to unwelcome conduct of a sexual nature that is so severe and pervasive that it creates a hostile work environment. "For sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment."' Meritor Say. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11 th Cir. 1982)). The "'mere utterance of an... epithet which engenders offensive feelings in an employee,'... does not sufficiently affect the conditions of employment to implicate Title VII." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor,477 U.S. at 67.) Typically, an awkward or even inappropriate request for a date, or isolated comments of a sexual nature, without more, will not rise to the level of a Title VII violation. "Sexual harassment is a complex social problem. The less severe forms of sexual harassment could very well represent simply clumsy or insensitive expressions of attraction, while more severe forms may be clear abuses of social power......

John B. Pryor, Sexual HarassmentProclivitiesin Men, 17 Sax RoLES 269, 287 (1987). 1 leave to others the task of critiquing the Supreme Court's construction of "severe and pervasive' and the requirement that the conduct be unwelcome. See, e.g., Abrams, supra note 51, at 1202-15 (criticizing judicial reliance on an ostensibly objective perspective that is actually male-centered, and arguing that the response of the plaintiff should be of primary concern); Estrich, supra note 34, at 826-47 (criticizing the "unwelcomeness" requirement as both unnecessary and reminiscent of rape law, and analyzing the difficulties plaintiffs face in making out claims of quid pro quo or hostile environment harassment). I do, however, think it wise to resist the urge to label all workplace sexual conduct sexual harassment, for reasons I discuss more fully below. See text accompanying notes 290-295 infra.

217. See text accompanying notes 19-30 supra.

218. Kathryn Abrams has made a similar observation. See Kathryn Abrams, Title VII and the Complex Female Subject, 92 MicH. L. Rav. 2479, 2511 n.127 (1994) (noting the "misunderstanding in some early sexual harassment opinions that harassment-that is, a form of gender discrimination-is largely a matter of unrequited sexual desire").

HeinOnline -- 49 Stan. L. Rev. 734 1996-1997

SEXUAL HARASSMENT

April 1997] What then, is wrong with understanding sexual harassment as an expression of sexual desire? A great deal. First, the "but for" conception of sexual harassment is deeply heterosexist in its assumptions. (Hetero)sex implicitly defines the framework within which the court assesses the sexism of sexual harassment. This slippage in the general understanding of sexual harassment as being about sex, not sexism, has the effect of reenacting and reinforcing the fundamental heterosexist assumption that all or virtually all intersexual interactions have some sexual aspect to them, and that all intrasexual interactions are presumed devoid of sexual desire or interest.

The heterosexism of the "but for" theory of harassment is apparent in its conflation of sex with sexism in different sex cases. While it may be true that when a male supervisor looks at a female employee and presumes his relation to her is sexual, he is merely putting into explicit practice the fundamental assumption of heterosexism: that sexuality and relations between the sexes are synonymous. The presumption that any relation to the opposite sex is sexual necessarily follows from that assumption. Paradigmatic sexual harassment is literally the enactment of a conflation between the two senses of sex.





The mistake, therefore, lies in ignoring not just the sexist, but the heterosexist point of view that animates our understanding of the harasser's behavior in cases of this kind. When feminist theorists and the courts accede to this conflation, and worse, make it the centerpiece of their theories of sexual harassment, they build into the theory these underlying heterosexist assumptions.

Jane Gallop recently developed this argument in an analysis of sexual harassment in the academy:

[B]y maintaining the heterosexist conflation at the heart of antiharassment discourse, we are not only guilty of the same failing as the harasser himself (which is embarrassing enough) but are unintentionally reinforcing the mindset that produces sexual harassment. What causes someone to assume his relation 22 1 to the opposite sex is sexual is in fact not merely sexism but heterosexism.

This mistake reproduces itself in many of the same-sex harassment cases.

For many courts, where the harasser is gay, the motivation behind his behavior sufficiently mirrors that of the heterosexual male harasser; therefore the conduct is actionable under Title VII. Yet, as the doctrine is now developing in some jurisdictions, in same-sex cases the plaintiff must actually prove that the defendant was gay in order to benefit from the presumption that the conduct, if sexual, was undertaken "because of sex." In the different-sex cases, heterosexist assumptions permit most courts to presume that sexual conduct between

219. Jane Gallop, The Lecherous Professor: A Reading, DUTMRENCES: J. FamNsT CULTURAL STUD., Summer 1995, at 1, 10.

220. For a related critique of MacKinnon's theory as one that tends "to freeze the relations [of man as dominator and woman as dominated], thus recapitulating the very cultural presumption of a heterosexually framed scene of sexual domination," see Judith Butler, Against ProperObjects, Dum-p-.

ENCES: J. FENisT CurLTuAL STUD., Summer-Fall 1994, at 1, 9-10.

221. Gallop, supra note 219, at 11.

HeinOnline -- 49 Stan. L. Rev. 735 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 people of different sexes bespeaks sexual desire.222 In the same-sex cases those heterosexist assumptions are still at work in such a way that the plaintiff can overcome the presumption that same-sex sexual conduct is not motivated by desire-and therefore not undertaken because of sex-only with direct proof of the defendant's homosexuality. 223 Importantly, as the doctrine is developing, homosexuality may not be "inferred from the nature of the harassing conduct,"'2 24 even if that conduct amounted to demands for sexual favors, or touching or grabbing other employees' genitals. 225 At the same time, the presumption of a male defendant's heterosexuality, even in the same-sex cases, can be confirmed by such slim evidence as his wife calling him at work. In same-sex cases, once "but for" causation has been eliminated because the deSee, e.g., Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 752 (4th Cir.) ("When someone sexually harasses an individual of the opposite gender, a presumption arises that the harassment is 'because of' the victim's gender."), cert. denied, 117 S. Ct. 70 (1996); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990) ("The 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."); Martin v. Norfolk S. Ry. Co., 926 F. Supp. 1044, 1049 (N.D. Ala. 1996) ("In a situation where a male sexually harasses a female, there is the presumption that he does so because she is a female.... presumption arises from the sexually oriented harassing The conduct and is predicated upon the perceived need for sexual gratification.").

223. "In an effort to sort sexual from platonic harassment, courts would be forced to distinguish between locker room antics and sexual foreplay.... Schoiber v. Emro Mktg Co., 941 F. Supp. 730, " 740 (N.D. Ill. 1996).

224. Gibson v. Tanks Inc., 930 F. Supp. 1107, 1108 (M.D.N.C. 1996); see also McWilliams v.

Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1195 n.5 (4th Cir.) (rejecting the dissent's claim that the defendants' homosexuality may be inferred from the harassing nature of the conduct), cert denied, 117 S. Ct. 72 (1996).

225. See Gibson, 930 F. Supp. at *2. Incredibly, in Martin, the court held that the facts did not draw the harasser's exclusive heterosexuality into question, even though the complaint alleged that the defendants had asked the plaintiff to bend over a chair so that they could have sex with him, offered to expose their penises to him, asked him to show them his penis and touched him numerous times on his genitals. 926 F. Supp. at 1046-47. "There is also no evidence that Martin or any of the individual defendants are homosexual." Id. at 1047 (emphasis added). Significantly, in the face of this trend toward requiring explicit, direct proof of homosexuality in same-sex harassment cases, few courts have expressed any discomfort with the problem of how the defendant's sexual orientation might be proved.

In Swage v. Inn Phila. and Creative Remodeling, Inc., the court merely asserted that the case involved two homosexuals and then dropped a footnote indicating that the "[pilaintiff does not plead his sexual orientation; defendants attach as exhibits to their reply brief newspaper interviews where plaintiff states he is [a] homosexual." No. CIV.A. 96-2380, 1996 WL 368316, at *4 n.4 (E.D. Pa. June 21, 1996). That the court might have to go down this kind of road to ascertain the sexual orientation of a party did not bother the judge; rather he observed that "[c]onsideration of unverified newspaper articles, not matters of record, violates Fed.R.Civ.P. 12(c) and 56." Id. There are notable exceptions to this lack of judicial attention. See McWilliams, 72 F.3d at 1198 (Michael, J., dissenting) ("[Requiring proof of defendant's sexual orientation] would burden the statute too much because the focus would shift from an exanination of what happened to the plaintiff to a pursuit (surely to be complicated, far-ranging and elusive) of the 'true' sexual orientation of the harasser."); Dixon v. State Farm Fire & Cas. Ins. Co., 926 F. Supp.

548, 551 n.2 (E.D. Va. 1996) ("The Fourth Circuit has not provided guidance on what constitutes proof of 'homosexuality-in-fact.'... The effort to pinpoint and prove a 'level' of homosexuality evokes Justice Stewart's infamous 'I know it when I see it' standard.") (citations omitted); Ryczek v. Guest Servs., Inc., 877 F. Supp. 754, 762 (D.D.C. 1995) ("Mhe prospect of having litigants debate and juries determine the sexual orientation of Title VII defendants is a rather unpleasant one."). Two vexing problems immediately emerge from the Fourth Circuit's rule: what would a workable definition of 'homosexuality-in-fact' be, and what proof would be both probative and relevant thereof?. See McWilliams, 72 F.3d at 1195 n.5 (noting that "homosexual innuendo" and "conduct merely suggestive of homosexuality" are not sufficient to state a claim under Title VII; instead, the plaintiff must prove "homosexuality-in-fact").

HeinOnline -- 49 Stan. L. Rev. 736 1996-1997 April 1997] SEXUAL HARASSMENT fendant has not been shown to be homosexual, the offensive sexually harassing conduct is construed by many courts as "'mere locker room antics, joking, or horseplay,' which by its very nature is not discriminatory."' 226 As a logical matter, this reasoning works only in a world populated exclusively by Kinsey Ones and Kinsey Sixes, that is, people who are exclusively heterosexual or exclusively homosexual.

Gallop urges us to think about this problem differently:

In order to combat sexual harassment, we must disrupt rather than subscribe to this ambient heterosexism. Whereas the harasser's heterosexism leads him to discriminate by being sexual, the antiharasser's heterosexism leads her to assume that all sexuality [between the sexes] is discriminatory. In both cases no distinction is made between sexuality and the relation between the sexes.

While the harasser is, in one and the same act, sexist and sexual, precisely because he is, we must be able to distinguish sexuality and sexism. And we must always bear in mind that harassment is despicable and illegal, not because it is sexual, but because it is sexist.



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