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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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255. See LoRaENN M.G. CLARK & DEaRA J. LEwis, RAPE: THE PRICE OF COERCrvE SEXUALrrY (1977); ANRA MEDEA & KATm.EEN THOMPSON, AGAINST RAPE (1974) ("Rape is any sexual intimacy forced on one person by another"); DIANA E.H. RussEt., THE POLmcs OF RAPE: THE VIcTIM's PERsPECTIVE (1975).

256. MAcKINNON, supranote 181, at 134-35 (footnote omitted); see also MACKINNON, supra note 32, at 233 n. 19 ("We must confront the further problem, however, that the line between sex and violence is indistinct and mobile in a society in which violence means violation of that worthy of respect, and women are not.").

257. "Perhaps the wrong of rape has proved so difficult to define because the unquestionable starting point has been that rape is defined as distinct from intercourse, while for women it is difficult to distinguish the two under conditions of male dominance." MACKINNON, supra note 181, at 174 (footnote omitted). Of course, MacKinnon wants to question the possibility of consensual sex for women under any circumstances: "If sex is normally something men do to women, the issue is less whether there was force than whether consent is a meaningful concept." Id. at 178 (footnote omitted); see also Carole Pateman, Women and Consent, 8 POL. THEORY 149, 150 (1980) (questioning whether genuine consent is possible within the institutions of a liberal democratic state).

258. See Franke, supra note 247, at 556 (criticizing MacKinnon's conclusion that "women can only experience themselves as male sexual fantasies"); Susan Etta Keller, Viewing and Doing: Complicating Pornography'sMeaning, 81 GEO. L.J. 2195, 2229-30 (1993) (arguing that "MacKinnon's perspective... denies women any role in the social construction of their own or of men's sexuality" because "[w]omen's sexuality is constructed for them by an invisible [male] hand").

HeinOnline -- 49 Stan. L. Rev. 741 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 prohibit all sex and that violent men must.., be incapacitated as dangerous criminals, not treated as only sexually aberrant." 259 That rape is a crime of violence or power expressed through the idiom of sex conforms with the findings of various psychological studies of men who rape or who are likely to rape. In Men Who Rape: The Psychology of the Offender,260 Nicholas Groth examined "the psychological and emotional factors that predispose a person to react to situational and life events with sexual violence."' 261 Groth begins his study by observing that "[rape is always and foremost an aggressive act.... It is sexual behavior in the primary service of '262 non-sexual needs.

If, as Groth and others maintain, rape is "a pseudosexual act, a pattern of sexual behavior that is concerned much more with status, hostility, control, and dominance than with sensual pleasure or sexual satisfaction," 263 couldn't the same be said of sexual harassment? Indeed, many theorists regard rape as lying at the extreme end of a continuum of male-aggression/female-passive patterns of interaction. One commentator has argued that "rape and severe forms of sexual harassment are conceptually similar forms of behavior." 6 Psychologist John Pryor has closely studied the factors, dynamics, and proclivities that make a man likely to sexually harass ("LSH") women with whom he works or studies. 265 Among other things, according to the methodology set forth by Neil Malamuth, Pryor found that LSH men also tested likely to rape ("LR"). 2 66 Furthermore, like LR men, LSH men demonstrated attitude/

259. EsTRicH, supra note 114, at 82 (footnote omitted).



261. Id. at xii.

262. Id. at 12-13.

In every act of rape, both aggression and sexuality are involved, but it is clear that sexuality becomes the means of expressing the aggressive needs and feelings that operate in the offender and underlie his assault....

[Rape] is, in fact, the use of sexuality to express... issues of power and anger.


Id. at 13.

263. Id.

264. Pryor, supra note 216, at 272 (citation omitted); see also GROTH, supra note 260, passim (describing rapists as motivated more by aggression than by sexual desire); MEDEA & THOmPSON. supra note 255, at 49-55 (equating harassment with rape).

265. See John B. Pryor, Christine M. LaVite & Lynnette M. Stoller, A Social PsychologicalAnalysis of Sexual Harassment: The Person/SituationInteraction,42 J. VOCAIONAL BEHAV. 68, 70 (1993) (presenting findings of studies demonstrating that local norms importantly influence the incidence of sexual harassment and that men likely to sexually harass cognitively link social dominance and sexuality); John B. Pryor, Janet L. Giedd & Karen B. Williams, A Social Psychological Modelfor Predicting Sexual Harassment, 51 J. Soc. IssuEs, Issue 1 1995, at 69 [hereinafter Pryor, Model] (presenting a theoretical framework within which to study sexual harassment); John B. Pryor & Lynnette M. Stoller, Sexual Cognition Processes in Men High in the Likelihood to Sexually Harass,20 PERSONALrrY & SOC.

PSYCHOL. BuLL. 163, 163 (1994) (reporting results of study showing that high-LSH men recognized instances of sexuality/dominance word pairs with more frequency and confidence than did low-LSH men); Pryor, supra note 216 (presenting the results of three studies of sexual harassment proclivities).

266. See Pryor, supra note 216, at 276. Malamuth's methodology for identifying men who possess a propensity to rape entailed scenarios where subjects were asked to indicate on a five point scale the likelihood that they would rape if they could be assured of not being caught or punished. See Neil M. Malamuth, Rape Proclivity Among Males, 37 J. Soc. IssuEs, No. 4 1981, at 138, 140. Similarly, Pryor undertook several studies to develop and validate a measure of sexual harassment proclivities in men. See Pryor, supra note 216, at 272-74. In so doing, he modeled his methodology on that used by HeinOnline -- 49 Stan. L. Rev. 742 1996-1997 April 1997] SEXUAL HARASSMENT belief structures that included acceptance of interpersonal violence, 2 67 the desire to dominate women 2 68 high authoritarianism, and difficulty assuming other people's perspectives, 2 69 that is, they had difficulty being empathetic. Finally, Pryor's findings indicated that LSH men believed deeply in sex-role stereotypes and endorsed stereotypic views of male sex-role norms. 270 In summary, building on the rape studies, Pryor confirmed the notion that men engage in offensive sexual conduct in the workplace primarily as a way to exercise or express power, not desire.

The cases bear out Pryor's observations that sexual harassment is, at bottom, about power not desire. In Wrightson v. Pizza Hut ofAmerica, Inc.,27 1 for example, the Fourth Circuit applied its "homosexuals only" rule to the claim of a heterosexual male who alleged that he had been sexually harassed by gay males in the workplace. According to the Fourth Circuit's logic, gay harassers have engaged in discrimination "because of' the victim's sex by virtue of the fact that the harasser would not have undertaken such conduct had the victim been of another sex. Since gay men desire other men, "but for" causation was found by the court to be present. This reasoning, while logical, is undermined by the facts of the case. Among the many factual findings recited by the court was the fact that these harassers chose heterosexual male, but not female or homosexual male, coworkers to sexually harass. 272 If, as the court's logic assumes, gay males will harass only that class of persons whom the desire sexually, then it makes no sense that the harassers picked out only heterosexual men to harass. Rather than explaining the harassers' conduct in the Wrightson case according to "but for" causation grounded in assumptions about sexual desire, the better explanation for the harassers' behavior is that gay men were asserting power in the workplace and, given their numbers, were harassing straight men

in a manner that reversed the typical alignment of power in the larger culture:

where heterosexual men vilify gay men as a matter of course. The facts make clear that this was sexual orientation-based harassment motivated by revenge, not desire. 273 While it may have been wrong for the gay male employees to Malamuth, based upon the premise that the "similarity of severe forms of sexual harassment to rape suggests that rapists and sexual harassers might share some common characteristics." Id. at 272. In order to determine which men were likely to sexually harass ("LS-"), he developed several hypothetical scenarios which placed the male in a social role or in particular circumstances that allowed him "the power to control an important reward or punishment for a female target." Id. at 273. Subjects were then asked to indicate the likelihood of pursuing sexually exploitive behavior in these scenarios given an assurance that no negative consequences would result from their choices. See id.

267. See Pryor, supra note 216, at 276.

268. See Pryor, Model, supra note 265, at 76.

269. See Pryor, supra note 216, at 288.

270. See id. at 288; see also Pryor, Model, supra note 265, at 75-76 ("The profile that emerges from these findings is that LSH is related to an identification with a stereotype view of masculinity.").

271. 99 F.3d 138 (4th Cir. 1996).

272. See id. at 139 ("After Pizza Hut hired a male employee, the homosexual employees attempted to learn whether the new employee was homosexual or heterosexual.... If the employee was heterosexual, then the homosexual employees began to pressure the employee into engaging in homosexual sex.").

273. The court considered and rejected the defendant's argument that Title VII did not apply to the claim because plaintiff was not "harassed because of his sex, but, rather...because of his sexual orientation as a heterosexual." Id. at 143. Relying upon the Supreme Court's mixed motive reasoning HeinOnline -- 49 Stan. L. Rev. 743 1996-1997 [Vol. 49:691


harass their straight male coworkers in this fashion, the court's reasoning fails to adequately explain how such conduct might violate Title VII as discrimination "because of sex."

While cognitive psychological studies indicate that the equation of sexual harassment with sexual desire represents a descriptive error, it may reflect a racial bias as well. Theorists such as Kimberle Crenshaw have argued that the claim that rape is fundamentally an expression of male sexuality employed toward the end of controlling female sexuality "eclipse[s] the use of rape as a weapon of racial terror." 274 MacKinnon's inclination to reduce rape to violent sexuality, and violent sexuality alone, ignores the historical role that the rape of black women by white men played in advancing a fundamentally racist and sexist agenda:2 75 "When Black women were raped by white males, they were being raped not as women generally, but as Black women specifically: their femaleness made them sexually vulnerable to racist domination, while their Blackness effectively denied them any protection.

Rape and sexual harassment must not be understood in static terms that allow for fixed meanings regardless of the context in which they occur. Theoretical or judicial analyses of sexual harassment rarely mention the racial identity of the victim or the perpetrator. Just as Crenshaw notes that rape can be used by white men to racially subordinate Black women, so too can sexual harassment operate as a means of enforcing racial subordination in the workplace. 277 Thus, sexual harassment may mean different things 278 depending upon the races of the perpetrator and the victim as well as context.

For all these reasons, it would be both a theoretical and a descriptive mistake to characterize offensive workplace sexual conduct primarily as the exin Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989), the Fourth Circuit held that the plaintiffs claim could survive even if "because of the employee's sex" was not the sole reason for the discriminatory actions. Id. at 144.

274. Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of AntidiscriminationDoctrine, Feminist Theory and Antiracist Politics, 1989 Cm. L GAL F.

139, 158.

275. See 5 K.K.K. Hearings, S.C. Ct. Proceedings (Dec. 19 & 30, 1871); 9 Testimony Before the Joint Committee of Mississippi Legislature to Investigate the Meridian Riot (Mar. 21, 1871), reprinted in BLACK VOMEN IN WHTE AMERICA: A DoCUMENTARY HisToRy 182-88 (Gerda Lemer ed., 1972) (citing testimony of Black women who were raped by white male Klan members as part of a reign of racial terror unleashed in response to Reconstruction); see also Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV. WoMEN's L.J. 103 (1983) (examining the racist social meaning of rape in American history).

276. Crenshaw, supra note 274, at 158-59 (footnote omitted).

277. It is certainly conceivable to imagine a white man who chooses to express his racist attitudes toward his nonwhite coworkers by sexually harassing them. In this case, his behavior is not motivated by sexual desire, rather he is simply aware that offensive sexual conduct is the best way to hurt them, and thereby discriminate against them because of their race. This is not to say that sexist attitudes do not play a role in conduct of this kind, but is rather to illustrate how offensive sexual conduct can be a weapon used in the service of a number of bigoted attitudes combined with or instead of sexism.

278. See Abrams, supra note 218, at 2500-02 (discussing the intersectionality of race and sex in some sexual harassment suits brought by Black women); Chamallas, Writing About Sexual Harassment, supra note 33, at 52-54 (arguing that the sexual harassment sometimes faced by African-American women has no parallel faced by white women). See generally Judy Trent Ellis, Sexual Harassmentand Race: A LegalAnalysis of Discrimination, 8 J. LEGoS., No. 1 1981, at 30 (discussing the unique vulnerability of black women to sexual harassment).

HeinOnline -- 49 Stan. L. Rev. 744 1996-1997


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