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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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Against background assumptions that assume heterosexuality and conflate "because of sex" with "because of sexual desire," the sexism and heterosexism underlying the harassment of nonmasculine men by hyper-masculine men is rendered invisible to the courts. The third kind of same-sex sexual harassment cases present this exact problem-cases where men were sexually harassed because they failed to live up to societal expectations of proper masculinity. In the first case of this kind, Goluszek v. H.P. Smith,2 28 Anthony Goluszek worked in the defendant's paper plant as an electronic maintenance mechanic. The court described Mr. Goluszek as a man who "ha[d] never been married nor ha[d] he lived anywhere but at his mother's home." 229 He came from "an 'unsophisticated background"' and had led an "'isolated existence' with 'little or no sexual experience.' Goluszek 'blushe[d] easily' and [was] abnormally sensitive to comments pertaining to sex." 230 Shortly after Mr. Goluszek began work, his male coworkers began to make fun of him, asking why he didn't have a wife or girlfriend, and "jok[ed] that one had to be married to work there." 23 1 Among the other harassment the plaintiff experienced were comments that he needed to "'get married and get some of that soft pink smelly stuff that's between the legs of a woman,' "232 periodic questions as to whether "he had gotten any 'pussy' or had oral sex," and forcibly being shown pictures of nude women. 3

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HeinOnline -- 49 Stan. L. Rev. 737 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 In response to these as well as other sexual and nonsexual harassment,23 Goluszek filed a Title VII action against his employer claiming that he had been subjected to a sexually hostile work environment. The trial court rejected Goluszek's claim, concluding that "the defendant's conduct was not235 type of the ' conduct Congress intended to sanction when it enacted Title VII.

Similarly, in Polly v. Houston Lighting & Power Co.,236 the plaintiff claimed that he had been sexually harassed by his male coworkers because, inter alia, he would not "'engage in their dirty conversations'... [and] because he had disapproved and complained of his co-workers' use of profanity at work."' 237 The court held that this evidence was not sufficient to establish the third element of a prima facie Title VII case--"that the harassment complained of was based upon his sex." 38 "Polly ha[d] not shown that, but for his being male, he would not have been treated by his co-workers in the manner that he was.", Finally, in McWilliams v. Fairfax County Board of Supervisors,24° the Fourth Circuit considered a claim by a man that he had been sexually harassed by his male coworkers, known as the "lube boys." 241 McWilliams worked as an automotive mechanic in the all-male Fairfax County Equipment Management Transportation Agency. When he was hired, he informed his supervisor that he had a learning disability as well as arrested cognitive and emotional development. 242

The manner in which the lube boys harassed McWilliams was abominable:

They teased him, asked him about his sexual activities, and exposed themselves to him. They taunted him with remarks such as, "The only woman you could get is one who is deaf, dumb, and blind." On one occasion, a coworker who sometimes took on supervisory responsibilities placed a condom in McWilliams' food. 243

If that were not bad enough, they also physically assaulted him:

On at least three occasions, coworkers tied McWilliams' hands together, blindfolded him, and forced him to his knees. On one of these occasion, a coworker placed his finger in McWilliams' mouth to simulate an oral sexual act. During another of these incidents, a coworker, Doug Witsman, and another placed a broomstick to McWilliams' anus while a third exposed his genitals to McWilliams. On yet another occasion, Witsman entered the bus on which McWilliams was working and fondled him. 2 "

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Mr. McWilliams complained to the management about obscenity in the workplace, as well as the verbal and physical harassment he received from his coworkers. The conduct nevertheless continued. Eventually, and not surpris- 245 ingly, McWilliams left his employment due to "severe emotional problems.

Shortly thereafter, he filed suit in federal court claiming that he had been sexually harassed by the lube boys. Ultimately, the Fourth Circuit affirmed the trial court's grant of summary judgment for the defendants, concluding that McWilliams had not been discriminated against because of his sex. A hostile environment claim must fail, the court reasoned, where, as on these facts, both the

harassers and the victim are heterosexual and of the same sex:

[W]e do not believe that in common understanding the kind of shameful heterosexual-male-on-heterosexual-male conduct alleged here (nor comparable female-on-female conduct) is considered to be "because of the [target's] 'sex."' Perhaps "because of' the victim's known or believed prudery, or shyness, or other form of vulnerability to sexually-focussed speech or conduct. Perhaps "because of' the perpetrators' own sexual perversion, or obsession, or insecurity. Certainly, "because of' their vulgarity and insensitivity and meanness of spirit. But not specifically "because of' the victim's sex.

In all three of these cases, the male plaintiffs were sexually harassed by their "appropriately" masculine male coworkers because of the plaintiffs' failure to conform to a norm of masculinity that assumed certain hetero-patriarchal 247 parameters: heterosexuality, sexual experience, sexual interest in and desire to objectify women, and an inclination to engage in the social customs of manliness. Never was it alleged, or for that matter believed, that the men who harassed Goluszek, Polly, and McWilliams wanted to have sex with their victims. Yet to hold that the absence of desire precludes discrimination, as was the Fourth Circuit's holding in McWilliams, is to ignore the critical role that gender stereotypes played in these cases: the sexual harassment of these men amounted to a form of discipline and punishment because they were insuffiId. at 1194.

246. Id. at 1195-96.

247. Hetero-patriarchy, first used in the legal literature by Frank Valdes, refers to "the fusion of androsexism and heterosexism, both socially and sexually, to obtain and maintain the supremacy of 'masculinity' and of 'masculine'-identified (heterosexual) men, over personal, economic, and cultural life." Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructingthe Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REv. 1, 8 n.14 (1995); see also Francisco Valdes, Unpacking Hetero-Patriarchy:Tracking the Conflation of Sex, Gender & Sexual Orientation to Its Origins, 8 YALE J.L. & HurvmAN. 161, 170 (1996) ("Mhe ideology of compulsory hetero-patriarchy rests on four key tenets: The bifurcation of personhood into 'male' and 'female' components under the active/passive paradigm; the polarization of these male/female sex/gender ideals into mutually exclusive or even opposing, identity composites; the penalization of gender atypicality or transitivity; and the devaluation of persons who are feminized.") (footnote omitted). Embedded within the concept of hetero-patriarchy are two acceptable sites of human identity: heteromasculinity and hetero-femininity. These concepts embody traditional notions of maleness and femaleness constructed from within the normative preferences and assumptions of heterosexuality and heterosexism. See Katherine Franke, Cunning Stunts: From Hegemony to Desire A Review of Madonna's Sex, 20 N.Y.U. REv. L. Soc. CHANGE 549, 563 n.81 (1993-4) (book review) ("Heteromasculinity refers to the unstable object lying at the intersection of compulsory heterosexuality and sexism.").

HeinOnline -- 49 Stan. L. Rev. 739 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 ciently masculine. In these same-sex cases, the possibility of sexism in the absence of desire is unimaginable, and certainly unactionable.

To understand sexual harassment primarily in terms of sexual desire is wrong for many of the same reasons that it is a mistake to understand rape as primarily a crime of passion or lust. 249 To claim as much is to choose sides, or at a minimum, to list heavily to one side of the ongoing intramural debate within feminism about whether rape should be understood as a crime of violence or sex. The claim that rape is a crime of violence, not sex, was first made most clearly in 1975 by Susan Brownmiller in Against our Will: Men, Women and Rape.2 50 Brownmiller provided a feminist critique of the psychological literature that had portrayed the rapist as a sexual psychopath who had been treated by criminologists similarly to exhibitionists, homosexuals, and prostitutes.25 1 For Brownmiller, the Freudian view of rape absolved the rapist of after all, it stemmed from an unconresponsibility for his conduct because,252 scious manifestation of Oedipal urges.

As an alternative to the sexual psychopathological account of rape, Brownmiller argued that sociologists provided a better understanding of rape by looking not at pathological individuals who raped, but at group behavior and the social values that have created a culture of violence. Brownmiller valued this work for its conclusion that placed "the rapist squarely within the subculSee, e.g., Martin v. Norfolk S. Ry. Co., 926 F. Supp. 1044, 1049 (N.D. Ala. 1996) ("[l]n the case of same-sex heterosexual hostile working environment sexual harassment, the presumption of sexual gratification, and thus, sex discrimination, ceases to exist."); Tietgen v. Brown's Westminster Motors, Inc., 921 F. Supp. 1495, 1501 (E.D. Va. 1996) ("In same-sex harassment cases... causation is much less evident and may be difficult to prove.... because the allegedly harassing conduct is often capable of being construed... as mere locker room antics, joking, or horseplay.").

249. The notion that rape is a crime of lust persists today even in the highest echelons of law enforcement, notwithstanding longstanding critiques debunking such a notion. The Hate Crime Statistics Act ("HCSA"), mandates that the Attorney General collect data about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity. Pub. L. No. 101-275, 104 Stat. 140 (1990) (to be codified at 28 U.S.C. 534(b)(1)). In 1995, Senator Paul Simon's office asked the FBI

whether it would support the addition of gender to the HCSA. The FBI responded:

The inclusion of gender bias to the Hate Crime Statistics Act is not recommended at this time for several reasons, including the following: 1. A gender bias motivation would be very difficult to determine, e.g., is the crime of rape motivated by lust or hate? Police officers would have to explore the psyche of the offender to determine if hate was a motivating factor.

Letter from C. David Evans, Acting Assistant Director, Criminal Justice Information Services Division, U.S. Department of Justice, Federal Bureau of Investigation, to Honorable Paul Simon 4 (July 5, 1995) (on file with the Stanford Law Review).


251. "By and large the Freudian criminologists, who loved to quibble with one another, defined the rapist as a victim of an 'uncontrollable urge' that was 'infantile' in nature, the result of a thwarted natural' impulse to have intercourse with his mother." Id. at 178.

252. Brownmiller also noted that Freudian studies of rapists ultimately blamed women for our role

in creating the sexual psychopath:

The conclusions reached were that the wives of the sex offenders on the surface behaved toward men in a submissive and masochistic way but latently denied their femininity and showed an aggressive masculine orientation; they unconsciously invited sexual aggression, only to respond to it with coolness and rejection. They stimulated their husbands into attempts to prove themselves, attempts which necessarily ended in frustration and increased their husbands' own doubts about their masculinity.... There can be no doubt that the sexual frustration which the wives caused is one of the factors motivating [the] rape....

Id. at 179 (quoting DAVID AnRAHASmsE, Tm PSYCHOLOGY OF CRmUS 165 (1960)).

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In contrast, others have taken the position that rape is first and fundamentally a sexual act. 255 To regard rape as violence makes it impossible to see that violence is sex when it is practiced as sex. This is obvious once what sexuality is, is understood as a matter of what it means and how it is interpreted. To say [that] rape is violence not sex preserves the "sex This is good" norm by simply distinguishing forced sex as "not sex".....

analytic wish-fulfillment makes it possible for rape to be opposed by those who would save sexuality from the rapists while leaving the sexual fundamentals of male dominance intact.2 For MacKinnon, to distinguish rape from sex by calling it violence is to elide her most fundamental insight: Male sexuality is intrinsically violent and is experienced as such by women even when consented to.2 To the extent that MacKinnon over determines male sexuality as violence, she under determines female sexuality as the null set.258 By collapsing violence into the larger category of sex she avoids the problem of calling forced sex "not sex" by calling all sex "bad sex." If the rape-is-violence view pathologizes rape, MacKinnon's view pathologizes sex generally. I will return to this problem later, but for the purposes of critiquing the "but for" formulation of the wrong of sexual harassment, I join Susan Estrich in observing that "[f]ocusing on the violent aspects of rape makes clear that you are not trying to

253. Id. at 181 (discussing specifically Menachem Amir's 1971 study of rape in Philadelphia).


TowARDs AN IrEGRATED THEORY IN CRIMINOLOGY 154 (1967)); see also MENACHEM AMp, PATrERNS INFORCIBLE RAPE 314-33 (1971) (reviewing the psychiatric classification and typologies of sex offenders and rapists and presenting a sociological analysis of the subculture of rapists).

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