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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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Related to the gender-based problems that inhere in the reasonable woman standard is the fact that a growing number of courts now require in same-sex cases that the offending conduct create an anti-male or anti-female environment. While the Fourth Circuit has interpreted Title VII's "because of sex" language in same-sex sexual harassment cases to require proof of homosexuality, in the absence of such proof, other courts have interpreted the spirit of Title VII to target those practices that create an anti-male or anti-female environment.

The most notable example of such reasoning is found in Goluszek v. H.P.

Smith.320 There, recall, Judge Ann Williams held that the sexual harassment by male coworkers of the plaintiff, a man who "'blushes easily' and is abnormally sensitive to comments pertaining to sex," 32 1 did not amount to discrimination "because of sex." According to the court, "Goluszek may have been harassed 'because' he is a male, but that harassment was not of a kind which created an antimale environment in the workplace. '322 This language has been since relied upon in a number of cases that fall into the second kind of same-sex harassment where men engage in offensive conduct of a sexual nature toward other men, but where the harassers are not shown to be gay 3and/or sexual desire is not alleged to be the motivation behind the harassment.

320. 697 F. Supp. 1452 (N.D. Ill. 1988).

321. Id. at 1453.

322. Id. at 1456.

323. See, e.g., Ashworth v. Roundup Co., 897 F. Supp. 489, 494 (V.D. Wash. 1995) (finding no antimale environment where plaintiff alleged that male supervisor threatened to "butt fuck" him if he didn't get back to work, told plaintiff that he had "a nice ass," and asked him if he want to touch "peepees" in the bathroom); Blozis v. Mike Raisor Ford, Inc., 896 F. Supp. 805, 808 (N.D. Ind. 1995) (stating that "[a]bsent extenuating circumstances, it would seem difficult to prove that sexually explicit words or conduct between men would demonstrate an anti-male atmosphere"); Fleenor v. Hewitt Soap Co., No. C-3-94-182, 1995 WL 386793 (S.D. Ohio Dec. 21, 1995) (finding no antimae environment HeinOnline -- 49 Stan. L. Rev. 752 1996-1997


April 1997] The anti-male environment rule has been interpreted in a manner that narrows the scope of Title VII in both same-sex and different-sex cases. Some courts interpret Goluszek to mean that Title VII is designed to provide a remedy only where members of a disadvantaged group have been discriminated against by members of a dominant group. 32 4 For instance, in Quick v. Donaldson Co.,325 the court held that "male employees are afforded Title VII protection if they can show they are members of a disadvantaged or vulnerable group (i.e., if they are working in an antimale environment or predominantly female '326 environment).

Under this construction, the conditions precedent for an anti-male environment may be found where men are a statistical minority in the workplace, thereby reversing their more typical cultural status as subordinator to that of subordinated. On this account, unlawful discrimination arises because one's sexual group is outnumbered in the workplace. The paradigmatic case of sex discrimination, so conceived, is crudely reduced in juvenile terms to situations where the boys gang up on the girls, or the girls gang up on the boys.

This view necessarily limits Title VII's application to inter-sexual sexual harassment. Sex discrimination, and sexual harassment as its subset, thus encompass only conduct undertaken by members of one biological sex against members of another biological sex. The court in Martin v. Norfolk Southern Railway Co. 327 held that "Itihis theory focuses on whether there is an atmosphere of oppression by a 'dominant gender,' and thus assumes that the harasser and victim must be of opposing genders. '328 Would that the court really meant what it said here: that Title VII prohibits the "masculines" from gaining up on the "feminines"--which is my interpretation of Title VII. Instead, I believe that the court used the term gender to mean sex. Such a narrow view precludes the possibility that a man can be sexually harassed by another man or men.

Thus, in dismissing the male plaintiff's same-sex sexual harassment claim in Fleenor v. Hewitt Soap Co., 329 the court felt it relevant to observe that "[i]n his second amended complaint.., the Plaintiff does not allege that his work-place was other than male dominated. Indeed, with one exception, those mentioned where male plaintiff alleged that male coworkers exposed their genitals to plaintiff, threatened to force him to engage in oral sex, and stuck a ruler up plaintiff's buttocks), aff'd, 81 F.3d 48 (6th Cir.), cert.

denied, 117 S. Ct. 170, reh'g denied, 117 S. Ct. 598 (1996); Vandeventer v. Wabash Nat'l Corp., 867 F.

Supp. 790, 796 (N.D. Ind 1994), reconsiderationdenied, 887 F. Supp. 1178 (N.D. Ind. 1995) (finding no anti-male environment where male supervisor called male plaintiff "dick sucker" and asked if he could perform fellatio without his false teeth). But see Quick v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996) (holding that district court erred in requiring male plaintiff to show evidence of antimale or predominantly female work environment which made males a disadvantaged group in the workplace).

324. "The 'sexual harassment' that is actionable under Title VII 'is the exploitation of a powerful position to impose sexual demands or pressures on an unwilling but less powerful person."' Goluszek, 697 F. Supp. at 1456 (quoting Sexual Harassment Claims, supra note 297, at 1451).

325. 895 F. Supp. 1288 (S.D. Iowa 1995), rev'd, 90 F.3d 1372 (8th Cir. 1996).

326. Id. at 1294.

327. 926 F. Supp. 1044 (N.D. Ala. 1996).

328. Id. at 1049.

329. No. C-3-94-182, 1995 WL 386793 (S.D. Ohio Dec. 21, 1995), aff'd, 81 F.3d 48 (6th Cir.), cert. denied, 117 S. Ct. 170, and reh'g denied, 117 S. Ct. 598 (1996).

HeinOnline -- 49 Stan. L. Rev. 753 1996-1997 [Vol. 49:691


in that pleading are male."3 30 Similarly, in Easton v. Crossland Mortgage Corp.,331 the court granted summary judgment for the defendants in a female same-sex harassment case in part because "[i]n an all female context... [t]he environment, in effect, has become gender neutral and presumptively nondiscriminatory. '332 As such, the court concluded that the abundance of unwelcome sexual conduct undertaken by the plaintiff's female supervisors did not create a discriminatory hostile work environment for Easton. Instead, the court found that Easton's supervisors "presided over a bawdy sorority in which the plaintiffs were extended and accepted membership. The fact that the plaintiffs found this offer distasteful is a positive reflection of their character and professionalism, but unfortunately does not advance a claim of discrimination.

In effect, a single-sex workplace cannot embody an anti-male environment for men, or an anti-female environment for women. Some courts, however, have gone even further in implementing the rule against intrasex sexism: "He certainly does not despise the entire group, nor does he wish to harm its members, since he is a member himself.... Just as reducing sexual harassment

-334 to the expression of love or desire is a mistake, so too is it an error to collapse the wrong of sexual harassment into the expression of hate or animus.

In a sense, this concept of an anti-male environment picks up on the disparate impact reasoning embraced by the Robinson court.336 This move to explain what sexual harassment is in the individual case in terms of what sexual harassment does to all women workers has great explanatory power in a case like Robinson. Yet in Robinson, the court identified this category of actionable conduct as one of several ways of understanding harassing behavior as a form of discrimination "because of sex." It is a mistake to treat an anti-male environment as not only a sufficient, but a necessary element of a sexually hostile work environment claim, which is what the same-sex harassment cases do by reading sex discrimination to mean the creation of an anti-male environment.

Surely Title VII does not require that either male or female sexual harassment plaintiffs establish themselves as fungible representatives of their "sexual group" in order to make out a claim of sex discrimination. As Kathryn Abrams

observed in her analysis of the Goluszek case:

330. Id. at *3 (footnote omitted); see also Shermer v. Illinois Dep't of Transp., 937 F. Supp. 781, 784 (C.D. Ill. 1996) (holding that male plaintiff "obviously cannot show that his work environment was anti-male" because he worked on an all-male crew).

331. 905 F. Supp. 1368 (C.D. Cal. 1995).

332. Id. at 1382.

333. Id. at 1383 (emphasis added).

334. Hopkins v. Baltimore Gas & Elec. Co., 871 F. Supp. 822, 833 (D. Md. 1994) (quoting Ellen Frankel Paul, Sexual Harassment as Sex Discrimination: A Defective Paradigm, 8 YALE L. & PoLREv. 333, 352 (1990)), aff'd, 77 F.3d 745 (4th Cir.), cert. denied, 117 S. Ct. 70 (1996); see also Chiapuzio v. BLT Operating Corp., 826 F. Supp. 1334, 1337 n.1 (D. Wyo. 1993).

335. For a thoughtful critique of this argument, see Calleros, supra note 140, at 69 (pointing out that both heterosexual and homosexual harassers may feel dislike, attraction, or neither for the groups that they belong to).

336. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1522-23 (M.D. Fla. 1991) ("A third category of actionable conduct is behavior that is not directed at a particular individual or group of individuals, but is disproportionately more offensive or demeaning to one sex.").

HeinOnline -- 49 Stan. L. Rev. 754 1996-1997


April 1997] in insisting on the nexus between social disempowerment and discrimination in the workplace, the court in Goluszek imposed a requirement that courts felt free to omit in the cases involving homosexual supervisors... the behavior challenged must operate, in some respect, against all members of the protected group.... [1n other words, [according to the Polly court] it could have happened to any man, but not to any woman. In Goluszek, the court took this categorical logic one step further: it must be treatment that not only could have happened to any man but tends to reflect negatively on men as a group or create an environment hostile to men.

Such a standard imposes an inappropriately heavy burden on plaintiffs while encouraging defendants to produce other members of the plaintiff's sex who could testify to the fact that they, as a woman, or as a man-that is, in their capacity as class representatives-did not regard the conduct complained of as offensive. This evidentiary maneuver is already being used as a means of rebutting the plaintiff's claim that the conduct was offensive to "a reasonable woman" or "a reasonable man."

The anti-male or anti-female requirement also raises problems of ripeness,

as the court in Tanner v. Prima Donna Resorts, Inc. 338 correctly observed:

Title VII creates an individual claim which is ripe before the work environment has been poisoned for all workers of one sex or the other. It does not require that the work environment be hostile to all workers of3 3the plaintiff's sex; it requires that the environment be hostile to the plaintiff.

Finally, this requirement has the effect of eliminating a claim for intrasexual gender stereotyping. By regarding each member of a sexual group as a fungible representative of the class of subordinators or subordinated, it eliminates the possibility that men could discriminate against other men, through harassment or other means, because the latter fail to live up to the societal expectations of "proper" masculinity, or that women could engage in the same or similar behavior toward other women who fail to embody a particular standard of femininity. Should Ann Hopkins 340 have been barred from Title VII relief if she had been harassed or discriminated against by a sexually heterogeneous group of partners at Price Waterhouse who all preferred that female partners be appropriately feminine? I should hope not.

There is one further logical consequence of reducing the "because of sex" analysis to "but for" causation that should draw into question the integrity of the formal equality account of the wrong of sexual harassment. Just as some courts seek to limit Title VII liability only to those situations where the conduct

337. Abrams, supra note 218, at 2514.

338. 919 F. Supp. 351 (D. Nev. 1996).

339. Id. at 354 (citations omitted); see also Johnson v. Community Nursing Servs., 932 F. Supp.

269, 273 (D. Utah 1996) (endorsing the Tanner court's position rejecting an antimale or antifemale requirement under Title VII). The EEOC's proposed reasonableness standard that would have assessed the offending conduct against the sensibilities of a "reasonable person in the same or similar situation" allows for this more individualized inquiry rather than one based on sex-based group identity.

340. See Price Waterhouse v. Hopkins, Inc., 490 U.S. 228 (1989). Recall that Ann Hopkins was denied partnership at Price Waterhouse because the male partners considered her insufficiently feminine.

Id. at 235; see also note 301 supra.

HeinOnline -- 49 Stan. L. Rev. 755 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 creates an anti-male or anti-female environment, other courts have developed a related exemption for conduct that is equally offensive to male and female workers. This concept was first expressly articulated by the Eleventh Circuit in Henson v.

City of Dundee.34 1 The Henson court noted the limitations of the "but for" formulation of the wrong of sexual harassment:

[Tihere may be cases in which a supervisor makes sexual overtures to workers of both sexes or where the conduct complained of is equally offensive to male andfemale workers. In such cases, the sexual harassment would not be based upon sex because men and women are accorded like treatment.

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