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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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299. See Kathryn Abrams, The Reasonable Woman: Sense and Sensibility in Sexual Harassment Law, 1995 Dissarrr 48-54, for a clear discussion of the evolution of the arguments for and against the reasonable woman standard. See also Bums, supra note 89, at 399-403 (advancing a reasonable person in the same or similar circumstances standard); Chamallas, Feminist Constructionsof Objectivity, supra note 33, at 129-30 (urging a victim's perspective, not a reasonable woman's perspective); Nancy S.

Ehrenreich, PluralistMyths and PowerlessMen: The Ideology of Reasonableness in Sexual Harassment Law, 99 YALE LJ.1177, 1177-78 (1990) (arguing for legitimacy of reasonable person standard despite its "analytical weaknesses"); Lucinda M. Finley, A Break in the Silence: Including Women's Issues in a Torts Course, 1YALE J.L. & FmnmisM 41, 64 (1989) (arguing that a reasonable woman standard could reinforce gender stereotypes).

HeinOnline -- 49 Stan. L. Rev. 748 1996-1997


April 1997] courage defendants to introduce the testimony of women with whom the 30 plaintiff worked who did not regard the conduct as hostile or offensive?

Must all, or substantially all, women respond in the same way to particular sexual conduct in order for the conduct to be understood as sex discrimination?

What if a woman is selected for harassment because she departs from norms that other women in the workplace regard as reasonable, such as gender norms having to do with feminine attire or comportment?30 1 Could she prevail under a reasonable woman standard? Should she?

The third kind of same-sex harassment cases present this problem precisely.

Goluszek, 30 2 Polly, 30 3 and McWilliams 30 4 were harassed, in the courts' view, not because they were men, but because of some other fact about them-prudery, sexual inexperience, or naivete.3 0 5 To reach this result, the courts had to ignore the obvious: Goluszek, Polly, and McWilliams were mistreated in this way precisely because they were not male enough, not because of some characteristic exogenous to their maleness.

By crediting sexual inexperience, delicacy, or prudery, and not gender identity, as the trigger that provoked the harassment of these men, the courts elide the role of sex and gender norms in this form of sexual harassment. These men were targeted because they were inexperienced, delicate, or prude men. Yet, in assuming that it was these qualities alone, and not their presence in a man, which provoked the harassment, the courts make the mistake of individualizing the harassment. In the context of traditional sexual harassment cases, courts do not assume that because one woman among several is singled out by a male harasser, the reason for her harassment must be something other than her genSee Chamallas, Feminist Constructionsof Objectivity, supra note 33, at 131-32 (discussing the tendency of defendants in sexual harassment cases to point to the one woman who disagrees with the plaintiff as a way to degender the claim).

301. This scenario represents the flip side of Ann Hopkins' experience. In Price Waterhouse v.

Hopkins, Hopkins was denied a partnership interest in defendant accounting firm because she was "macho," needed "a course at charm school," and "should 'walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."' 490 U.S. 228, 235 (1989) (quoting defendant's exhibits and district court opinion, 618 F. Supp. 1109, 1117 (D.D.C. 1985)).

The Supreme Court found that this conduct amounted to gender discrimination because "an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Id. at 250. Interestingly enough, while we know that Hopkins did not fit the Price Waterhouse partners' expectations of femininity in a female employee, we do not know, as Mary Anne Case has pointed out, what Ann Hopkins actually looked or acted like-deviations from traditional gendered expectations-were read as personality flaws in Ann Hopkins. See Mary Anne C. Case, DisaggregatingGenderfrom Sex and Sexual Orientation:The Effeminate Man in Law and Feminist Jurisprudence,105 YALE L.J. 1, 42-43 (1995).

302. Goluszek v. H.P. Smith, 697 F. Supp. 1452, 1453 (N.D. III. 1988) (male plaintiff lived with his mother and blushed easily).

303. Polly v. Houston Lighting & Power Co., 825 F. Supp. 135, 138 (S.D. Tex. 1993) (male plaintiff refused to participate in "dirty conversations").

304. McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1193, 1196 (4th Cir.) (male plaintiff harassed by "lube boys"), cert. denied, 117 S. Ct. 72 (1996).

305. This reasoning approaches the "sex plus" reasoning used by some courts: women workers with young children are not discriminated against on the basis of their sex, but on the basis of their sex plus some other nonsex based factor, i.e., being a parent. See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (refusing to hire woman with preschool children while hiring men with such children barred by Title VII in absence of business necessity).

HeinOnline -- 49 Stan. L. Rev. 749 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 der.30 6 The courts' "one of these things is not like the others" logic obscures the central roles that sex and gender norms play in harassment of this nature. It was precisely because Goluszek, Polly, and McWilliams were men that they were victimized in this fashion.

At the same time it seems quite clear that had Polly, Goluszek, or McWilliams been women and had suffered the same harassing conduct of a sexual nature, there would have been no question that they had been discriminated against "because of their sex." In this sense, the what of sexual harassment must be distinguished from the why. These cases, however, raise a problem for advocates of the reasonable woman standard. Men like Polly, Goluszek, and McWilliams are harassed specifically because they do not represent reasonable men. 30 7 In fact, "reasonable" men did the harassing.308 What use is a reasonable woman standard in sexual harassment cases if it serves as the gold standard by which we distinguish the overly sensitive worker from the reasonably injured victim when it is "reasonable" people who are doing the harassing?

The courts' reasoning in Polly and Goluszek, in particular, has the effect of normalizing the behavior of the harassers to the extent that it characterizes Polly and Goluszek as men who were razzed because they were oddballs, dweebs, or geeks thereby ignoring the gender norms that animated this behavior.

The reasonable woman standard in sexual harassment cases resolves some of the sex-based bias in the law at the price of potentially normalizing and enforcing certain gender stereotypes or commonly accepted social norms about women as a group and men as a group. The standard proposed by the EEOC and pending at the time the Supreme Court decided Harrisv. Forklift Systems, Inc.,3 10 provided a potentially satisfactory middle ground between the unstated male normativity of the reasonable person standard and the essentializing dangers of the Ninth Circuit's 311 reasonable woman standard. The EEOC proposed a construction of the reasonableness inquiry as "whether a reasonable person in the same or similar circumstances would find the conduct intimidating, hostile, or abusive. '312 This standard controls for the concerns of those

306. To do so would invite male harassers to argue that "I didn't harass her because she was a woman, but because she had large breasts, or blond hair, or great legs."

307. In Ashworth v. Roundup Co., a case in which the harassers and the victim were all males, the court required that the plaintiff show that "a reasonableman would find that [defendant's] conduct was.sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment."' 897 F. Supp. 489,492 (W.D. Wash. 1995) (emphasis added) (quoting Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991)).

308. As yet, there are no reported cases similar to these three where masculine, or at least nonfeminine women, were sexually harassed by other women because they failed to conform to prevailing gender norms. But those circumstances undoubtedly exist.

309. For an example of such social norms, see Carrollv. Talman Say. & Loan Ass'n, 604 F.2d 1028, 1032 (7th Cir. 1979) (employer justified dress code that required only female employees to wear uniforms by claiming women's dress overly influenced by fashion trends and dress competition).

310. 510 U.S. 17 (1993).

311. See Ellison, 924 F.2d at 879.

312. Guidelines on Harassment Based on Race, Color, Religion, Gender, National Origin, Age, and Disability, 58 Fed. Reg. 51,266, 51,267 (1993) (to be codified at 29 C.F.R. pt. 1609) (proposed Oct.

1, 1993).

HeinOnline -- 49 Stan. L. Rev. 750 1996-1997


April 1997] who regard the reasonable person as a proxy for a reasonable man by locating the reasonableness standard in the class of persons in the plaintiffs situation, who are, it is true, overwhelmingly women. Yet, by resisting the urge to assume that all harassment victims are women, and that all reasonable women will react the same way to similarly harassing situations-both unspoken premises of the reasonable woman standard-the EEOC's standard makes room for men like Polly or Goluszek to argue that it was reasonable for them to experience their coworkers' conduct as intimidating, hostile or abusive. Unfortunately, the EEOC standard was withdrawn in October of 1994,313 and to date no court has used it in assessing a sexual harassment claim.

Kathryn Abrams, a legal theorist who undertook some of the early work advancing a reasonable woman standard in sexual harassment cases, 3 15 has 3 16 Interestsince developed a more critical posture with respect to its utility.

ingly, Barbara Gutek, a writer well known for her work demonstrating that men and women react differently to sexual conduct in the workplace, has also revised her views. 3 17 Indeed, much of Gutek's early empirical work formed the 318 basis for legal recommendations in favor of the reasonable woman standard.

Rather than substituting "woman" for "person" in the reasonableness standard and thereby inscribing in law the notion that men and women manifest different forms of rationality, Abrams suggests that Title VII's nondiscrimination mandate motivate us to rethink the concept of reasonability. Thus, she now advances a reasonable person standard "interpreted to mean not the average person, but the person enlightened concerning the barriers to women's equality in the workplace." 3 19 This standard has the advantage of shifting the locus of reasonableness from the victim's reaction (was it reasonable that the conduct made her feel so bad?), to the harasser's behavior (regardless of his subjective motivation, was it objectively unreasonable for him to act in such a way in the workplace?).

313. See Bums, supra note 89, at 401 n.310.

314. In United States v. Hollow Horn Bear, a man who had been charged with assaulting his mother with a kitchen knife attempted to raise a "battered child syndrome" defense so as to introduce evidence that his mother had abused him. No. 94-2484SD, 1994 WL 578218, at *1 (8th Cir. Oct. 20, 1994). The Eighth Circuit affirmed the trial court's jury instruction that the reasonableness of the conduct be assessed according to a "reasonable person in the same or similar circumstances" rather than a "reasonable battered person." Id. at *3.

315. See Abrams, supra note 51, at 1210-11 (arguing for a sexual harassment standard that incorporates responses reflective of women's socialization).

316. See Abrams, supra note 299, at 50-52.

317. Compare Gumr=, supranote 30,at 95-111 (describing studies showing men and women have different attitudes about sex in the workplace), with Barbara A. Gutek & Maureen O'Connor, The EmSoc. IssuEs 151 (1995) (evaluating empirical pirical Basisfor the Reasonable Woman Standard,51 J.

studies and finding differences between male and female definitions of sexual harassment insignificant).

318. Lehmann v. Toys 'R' Us,Inc., 626 A.2d 445,459 (N.J. 1993) (citing Abrams, supra note 51, at 1203 (citing GurEK, supra note 30, at 47-54)).

319. Abrams, supra note 299, at 52. The feminist retreat from a reasonable woman standard parallels a similar rethinking of the utility of the Battered Women's Syndrome defense in domestic violence cases. See Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in CurrentReform Proposals, 140 U. PA. L. REv.379 (1991) (arguing that existing legal standards generally encompass consideration of the circumstances in which battered women kill their abusers).

HeinOnline -- 49 Stan. L. Rev. 751 1996-1997 [Vol. 49:691


Abrams' new standard has the additional advantage of being more likely to provoke the transformation of workplace norms rather than merely critique them from a woman's perspective-whatever that might be. This standard embodies a progressive normative bias absent from existing sexual harassment doctrine. At best, the reasonable woman standard imposes liability on men who simply "don't get it," while at the same time building into the law the notion that men and women "get" sexual conduct differently: reasonable men and reasonable women, in a sense, agree to disagree about the meaning of sexual conduct in the workplace. Abrams' new standard, on the other hand, substitutes a gender neutral normative standard for what is reasonable conduct in the workplace-harassers have to "get with it." But to the extent that Abrams' standard demands only that reasonable people be enlightened with respect to the barriers to women's equality in the workplace, it demands too little. Title VII should enlighten the underlying causes of women's inequality, which include the sexual harassment of men who deviate from a hetero-patriarchal script. Thus, I urge that we take Abrams' standard one step further, and demand that reasonable people be educated in and sensitive to the ways in which sexism can and does limit workplace options for all persons, male or female.

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