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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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April 1997] pression of sexual desire. Rather, sexual harassment is best understood as the expression, in sexual terms, of power, privilege, or dominance. What makes it sex discrimination, as opposed to the actions of "a philanderer, a terrible person, and a cheapskate," 279 or a racist for that matter, is not the fact that the conduct is sexual, but that the sexual conduct is being used to enforce or perpetuate gender norms and stereotypes.

If that weren't enough, the uncritical over reliance upon a "but for" formulation of the wrong of sexual harassment makes the additional mistake of locating the harasser's subjective mental state-that of sexual desire-at the center of the problem. This mistake, while understandable given the sexual nature of the conduct at issue, reflects a serious conceptual error. "Title VII is not a fault-based tort scheme" 28 0 insofar as it provides a remedy for discriminatory conduct without necessarily requiring a showing that the defendant possessed discriminatory motives or animus. 281 "'Title VII is aimed at the consequences or effects of an employment practice and not at the motivation' of coworkers or employers. '282 That Title VII plaintiffs need not prove discriminatory motivation as part of their prima facie case reflects a recognition that many discriminatory actions are justified by "'archaic and overbroad' generalizations" '28 3 concerning the relative capacities of men and women, or "outdated misconceptions concerning the role of females in the home rather than in the 'marketplace and world of ideas." 28 4 In other words, "[c]onduct that many men consider unobjectionable may offend many women. ' 28 5 Therefore, contemporary sex discrimination jurisprudence denounces conduct that reflects or ratifies benign, yet nonetheless harmful, actions or policies that place women in a cage rather than on a pedestal.

The notion that Title VII is primarily designed to remedy discriminatory working conditions, rather than to punish actors who possess sexist motives or animus, is most compelling when applied to workplace sexual harassment.

Men who engage in conduct that creates a sexually hostile work environment for their female colleagues are not always aware that they are doing so: "A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a 'great figure' or 'nice legs.' The female

279. Estrich, supra note 34, at 819.

280. Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991).

281. "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when... (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance...." 29 C.F.R. § 1604.11(a) (1996) (emphasis added).

282. Ellison, 924 F.2d at 880 (quoting Rogers v. EEOC 454 F.2d 234, 239 (5th Cir. 1971)); see also Griggs v. Duke Power Co., 401 U.S. 424 (1971) (concluding that employment practice which impermissibly burdens minorities is unlawful regardless of employer's intent).

283. Craig v. Boren, 429 U.S. 190, 198 (1976) (quoting Schlesinger v. Ballard, 419 U.S. 498, 508 (1975)).

284. Id. at 198-99 (quoting Stanton v. Stanton, 421 U.S. 7, 15 (1975)).

285. Ellison, 924 F.2d at 878.

286. "There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage." Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (footnote omitted).

HeinOnline -- 49 Stan. L. Rev. 745 1996-1997 [Vol. 49:691


subordinate, however, may find such comments offensive." 28 7 As Nadine Taub observed: "Because those making sexual demands and allusions are often merely acting out the roles they have been taught by society, unaware of the hostile nature of their conduct, the notion of old-time evil motive, equivalent to racial animus, seems inappropriate.

For these reasons, Title VII sexual harassment doctrine shifts the focus away from the subjective mental state of the harasser and refocuses, instead, on the degree to which the conduct creates "an environment that a reasonable person would find hostile or abusive."2 89 The over reliance upon an understanding of sexual harassment as a manifestation of sexual desire has the effect, however, of refocusing the Title VII inquiry away from the conduct as experienced by its targets, and back onto the perpetrator's subjective mental state. This is a problem.

When the inquiry in sexual harassment cases reduces to a finding that "but for" the sex of the target the defendant would not have engaged in the conduct of a sexual nature, we are asking essentially, why did he do it? Either he found her attractive, regards all women as fair game, bears some ill will toward women, or harbors some offensive mental state or sexist ideology. Whatever the reason, the inquiry turns on the fact that he does not feel the same way toward men, as a class, and therefore would not have engaged in the same conduct if the coworker or subordinate had been a man. True, this reasoning demonstrates the disparate treatment of men and women, but it does so by shifting the locus of the inquiry to the defendant's subjective mental state, something that must be avoided in sex discrimination cases generally, and sexual harassment cases specifically.

Finally, I offer one last, although no less important, objection to the manner in which sexuality figures in sex discrimination. Unlike some writers, I, for one, am not prepared to say that the expression of sexuality in the workplace is presumptively illegitimate.2 90 Shutting down all sexual behavior seems like an overreaction to the problem of sexual harassment, and requires some very disturbing assumptions about the possibility of female sexual agency:2 9 1 since the law has done a bad job of differentiating welcome from unwelcome sexual conduct, better to declare it all unwelcome.

This paternalistic approach to the problem draws into question women's capacity to either consent or object to certain kinds of workplace sexual activity.2 92 The requirement that the plaintiff prove the sexual conduct was unwelLipsett v. University of P.R., 864 F.2d 881, 898 (Ist Cir. 1988), see also Yates v. Avco Corp., 819 F.2d 630, 637 n.2 (6th Cir. 1987) ("[M]en and women are vulnerable in different ways and offended by different behavior.").

288. Taub, supra note 73, at 361.

289. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

290. See text accompanying notes 113-176 supra.

291. See MumI. DrvmN, SURvIVING SEXUAL COTRAD ICTnONS: A STARTLING AND DIFFERET LOOK AT A DAY INTHE LiF OF A CONTMORARY PROFESSIONAL WOMAN 1-12 (1986) (describing how sexism and gender complicate and frustrate female sexual agency).

292. I have the same problem with MacKinnon's tendency to infantilize women by urging an analogy between adult pornography and child pornography. In general, the inequality between children HeinOnline -- 49 Stan. L. Rev. 746 1996-1997 April 1997] SEXUAL HARASSMENT come2 93 clearly presupposes a degree of female agency in these contexts. Yet, sexual content and unwelcomeness are not enough to make offensive workplace sexual behavior sex discrimination-something more needs to be proven, or at least inferred, for the wrong to be a sexually discriminatorywrong. Recall that to state a hostile environment claim under Title VII a plaintiff must show that the behavior complained of was both unwelcome sexual conduct and exhibited "because of sex."'294 Sexual conduct in the workplace has a special sting for women, not because our sensibilities render us particularly vulnerable to sex, but because the conduct literally sexualizes us. It embodies stereotypic gender norms that become true by virtue of their enactment. When we frame our arguments in terms of sex being "disproportionately more demeaning" to women than to men, or that sex is dangerous for women in some generalized sense, 2 95 we must be careful not to reinforce Victorian notions of women's special vulnerability to all things sexual. Instead, we should remain focused on a conception of sexual harassment that reveals the constitutive, disciplinary role of sexual harassment.

Taken together, all of these concerns provoke two important questions.

First, should we assume that all or most sexual conduct directed by men toward women or undertaken by men in the presence of women is sex discrimination?

If so, why? Asked another way: Where is the sexism in sex? Second, are there circumstances under which, in the absence of sexual desire, a person can sexually harass another person of the same sex in violation of Title VII? If so, why? The answers I propose to these questions will, I believe, provide better answers to the more fundamental question: why is sexual harassment a kind of sex discrimination?

B. The Problem of Reasonableness and Group-Based Discrimination Without question, the degree to which the law in sexual harassment cases shifts the focus away from the harasser's subjective mental state represents a tremendous victory for those seeking to improve working conditions for women in the wage-labor market. But merely asserting that the proper inquiry is whether the conduct complained of created "an environment that a reasonable and adults together with the inability of children to consent to sex make the production of child pornography a strict liability crime. So too with adult pornography, urges MacKinnon; the relationship of men to women is defined by an intrinsic inequality, and the near metaphysical perfection of male hegemony draws into question the ability of women to consent to subordinating sex with men. Therefore, adult pornography should be a strict liability crime as well, so the argument goes. See MAcKiNNON, supra note 151, at 35-36; MAcKINNON, supra note 32, at 175-79, 181-82.

293. Susan Estrich, among others, has urged that the unwelcomeness requirement be eliminated from the sexual harassment cause of action, just as consent should have no place as a defense in a rape prosecution. See Estrich, supra note 34, at 826-34.

294. See, e.g., Meritor Say. Bank, FSB v. Vinson, 477 U.S. 57, 66-69 (1986) (applying the unwelcomeness standard).

295. See Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991), for an example of a court that adopts this view. "[Tihe presence of the pictures, even if not directed at offending a particular female employee, sexualizes the work environment to the detriment of all female employees." Id at 1523.

HeinOnline -- 49 Stan. L. Rev. 747 1996-1997 [Vol. 49:691


person would find hostile or abusive," 2 96 produces its own problems for the victims of both different-sex and same-sex sexual harassment. The question remains: what kind of reasonable person are we talking about? A reasonable woman, a reasonable victim of sexual harassment, or some "objective" omnisexual person who is neither male nor female?

Many advocates have argued for a reasonable woman standard. 2 97 The Ninth Circuit has endorsed such a standard on the theory that "a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.... Instead, a gender-conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men." 298 Other commentators, however, have raised questions about the use of a reasonable woman standard in sexual harassment cases, among other things, because of the essentialism underlying the notion of a coherent and generalizable women's epistemology, as well as the problems with rendering "unreasonable" all women who fail to react to workplace sexual conduct according to theoretical or statistical expectations. 299 Does the reasonable woman standard enHarris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

297. See, e.g., Abrams, supra note 51, at 1210 & n.114; Deborah S. Brenneman, From Woman's Pointof View: The Use of the Reasonable Woman Standardin Sexual HarassmentCases, 60 U. CmN. L.

REv. 1281 (1992); Caroline Forell, Essentialism, Empathy, and the Reasonable Woman, 1994 U. hi. L.

REv. 769; Elizabeth A. Glidden, The Emergence of the Reasonable Woman in Combating Hostile Environment Sexual Harassment,77 IowA L. REv. 1825 (1992); Deborah B. Goldberg, The Road to Equality: The Application of the Reasonable Woman Standard in Sexual Harassment Cases, 2 CARDozo WOMEN'S L.J. 195 (1995); Note, Sexual Harassment Claims of Abusive Work Environment Under Title VII, 97 HARv. L. Rev. 1449, 1459 (1984) [hereinafter Sexual Harassment Claims]; Bonnie B. Westman, The Reasonable Woman Standard: PreventingSexual Harassmentin the Workplace, 18 WM. Mrrcm.

L. REv. 795 (1992).

298. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991); see also Bums v. McGregor Elec.

Indus., Inc., 989 F.2d 959, 962 n.3 (8th Cir. 1993) (noting and agreeing with Ellison's reasonable woman standard for Title VII hostile environment claims); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (holding that among the factors necessary to a successful hostile environment claim is that "the discrimination would detrimentally affect a reasonable person of the same sex in that position"); Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir. 1987) (applying a reasonable woman standard because "it seems only reasonable that the person standing in the shoes of the employee be 'the reasonable woman' since the plaintiff in this type of case is required to be a member of a protected class and is by definition female"); Rabidue v. Osceola Ref. Co., 805 F.2d 611, 626 (6th Cir. 1986) (Keith, J., concurring in part and dissenting in part) (arguing for the adoption of a reasonable victim standard to account for the "wide divergence" between men's and women's views of appropriate sexual conduct);

Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 457-59 (N.J. 1993) (discussing choice of reasonable woman standard). But see Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454-55 (7th Cir. 1994) (rejecting reasonable woman standard by citing to Harrisv. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)), cert.denied, 116 S. Ct. 473 (1995); DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir.) (same).

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