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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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Unfortunately, courts have repeatedly cited Henson's "equally offensive" principle to justify denying Title VII liability.3 43 Under this view, if the law is designed to address workplace conduct that disparately impacts workers on the basis of their sex,344 then that conduct which offends both men and women might be obnoxious, but it is not sexually discriminatory.

Feminist advocates of sexual harassment doctrine and judges reluctant to include sexual harassment in Title VII agree on a surprising number of these

issues. Catharine MacKinnon's materialist commitments, grounded in the reality of women's subordination by men,346 led her to conclude:

Sexual harassment limits women in a way men are not limited.

... By no measure does sexual harassment, in general, fall equally upon women and men. If it does, that is a defense. Sexual harassment makes the employment experience as a whole more injurious, more stressful, more insecure, and less economically beneficial for women than for men.

341. 682 F.2d 897 (11th Cir. 1982).

342. Id. at 904 (emphasis added) (citations omitted).

343. See, e.g., Cross v. Alabama, 49 F.3d 1490, 1505 (11th Cir. 1995); Rabidue v. Osceola Ref.

Co., 805 F.2d 611, 620 (6th Cir. 1986); Cabaniss v. Coosa Valley Med. Ctr., No. CV93-PT-2710-E, 1995 WL 241937, at *5 (N.D. Ala. Mar. 20, 1995); McKee v. Ram Prods., Inc., No. 1:92-CV-481, 1993 U.S. Dist. LEXIS 7346, at *8 (W.D. Mich. Apr. 23, 1993); Linebaugh v. Sheraton Mich. Corp., 198 Mich. App. 335, 341 (1993); Yukoweic v. IBM, 643 N.Y.S.2d 747,748 (N.Y. App. Div. 1996); see also Bradford v. Sloan Paper Co., 383 F. Supp. 1157, 1161 (N.D. Ala. 1974) (holding conduct not racially discriminatory where supervisor "was equally offensive to members of both races"). But see Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1043 (7th Cir. 1994); Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989); EEOC v. A. Sam & Sons Produce Co., 872 F. Supp. 29, 36 (W.D.N.Y.


344. See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971).

345. Henson's "equally offensive" rule is also problematic because it affirmatively discourages men from challenging sexism. Just as we want to encourage white people to both understand our stake in the perpetuation of racism and challenge it where we encounter it, it is a mistake to interpret Title VII's sex discrimination proscriptions as furthering the notion that men have no stake in workplace sex discrimination. See Childress v. City of Richmond, 907 F. Supp. 934 (E.D. Va. 1995) (holding white male employees do not have standing under Title VII to challenge workplace environment that was sexually harassing for black female workers on the theory that it undermined teamwork).

346. See MAcKINNON, supra note 181, at 3-12.

347. MACKINNON, supra note 23, at 193-94 (footnote omitted).

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April 1997] Feminist writers such as Kathryn Abrams3 48 and Susan Estrich, 349 together with the Ninth Circuit in Ellison v. Brady,350 have agreed that men and women experience sexual conduct in the workplace differently. One can accept this epistemic claim without embracing the view that many courts and the EEOC maintain, 351 that where conduct is regarded as reasonably offensive to all, regardless of sex, an individual woman is barred from claiming that she experienced that conduct as sexually discriminatory.

Compare, for instance, the workplaces at issue in McWilliams and Polly on the one hand, and Robinson v. Jacksonville Shipyards on the other. In McWilliams and Polly, male workers objected to the sexual pollution of all-male workplaces, whereas in Robinson, the question of a sexually hostile work environment arose only once women began working in the shipyards. In fact, the shipyards were full of pictures of naked women and other materials that sexualized the workplace well before the women began working there. 352 In the analysis of the harm that a sexually polluted work environment creates for women workers, the Robinson court assumed that no man was or could have been harmed by the hetero-masculine ideology that permeated all aspects of the workplace culture. 35 3 Without questioning the harm that the female plaintiffs in Robinson experienced, in order to regard the women's injury as discrimination "because of sex," must we foreclose the possibility that a man could also be harmed by the same or similar conduct?

Martha Chamallas has made a similar suggestion as part of her critique of the latent essentialism underlying the Robinson court's use of the reasonable woman standard: "Allowing men to complain of sexually abusive environments could mean, of course, that even all-male workplaces would theoretically be required to maintain an environment that is not hostile to women. '354 Chamallas regards the sexual harassment of nonmasculine men by other men as a form of sexism usually directed at women, but displaced on men.355 In this sense, Chamaflas employs an analysis developed more fully by Mary Anne Case in her discussion of the role of effeminate men in sex discrimination jurisAbrams has argued that adopting a reasonable person standard in sexual harassment cases belies "a stark denial of a range of social facts that make sexual harassment a distinctly different experience for women than it would be for men." Abrams,supra note 51, at 1202. Abrams has revised this view in subsequent writing. Abrams, supra note 299.

349. Estrich, supra note 34, at 840-41.

350. 924 F.2d 872, 879 (9th Cir. 1991).

351. See Interview with Gail Coleman, Attorney, Equal Employment Opportunity Commission, Office of General Counsel (May 1, 1996).

352. See Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1493 (M.D. Fla. 1991).

353. Kathryn Abrams observed that "[s]exual harassment is a potent reminder that the entry of women into the workplace is the beginning, not the end, of a social transformation." Abrams, supra note 51, at 1197. While the entry of women in previously all-male work environments may be a sufficient catalyst to transform those workplaces, it is not, I believe, necessary to spark a reformation of gender norms. The same-sex sexual harassment cases should serve as an additional potent reminder that men and women who do not conform to hetero-patriarchal expectations can provide the impetus for a similar social transformation.

354. Chamallas, Feminist Constructionsof Objectivity, supra note 33, at 130.

355. id. at 124-30.

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prudence. 35 6 For Case, the treatment of nonmasculine men is a problem of their feminization, or treatment as women. 357 This view, I think, is mistaken. Goluszek's and Polly's male coworkers may have regarded them as "failed-men" but that is not the same thing as regarding them as women. Our thinking and our theory must resist the urge to regard maleness and femaleness, and masculinity and femininity, as opposites, 358 rather than as two locations on a spectrum of sexual and gendered identity.

To label all bias against nonmasculine men as a kind of discrimination against women is to ignore the role that sexism plays in regulating male identity in a way that is related to, but not necessarily the same as, the role it plays in regulating female identity.

According to Chamallas, "Goluszek became feminized and was subjected to sexual harassment usually imposed on women. '35 9 Yet, one need not translate Goluszek into a woman in order to understand his experience of sexual harassment as a form of sex discrimination. He was harassed primarily as a way of policing masculinity, which may or may not have the collateral damage of vilifying femininity. When men like Goluszek are sexually harassed, they experience a kind of gender discipline designed to punish them for their failure to live up to a hetero-masculine norm. To reduce this conduct to misogyny is to miss the stake that hetero-patriarchy has in the defense of a certain brand of masculinity in men. For these reasons, I agree with Chamallas' demand that we consider whether some all-male workplaces have a duty to eliminate sexist practices that are hostile to women even before women integrate the workplaces. 360 Yet, I want to push the argument one step further, and consider how these hypermasculine, all-male workplaces can be considered hostile to men as men.

While it is sometimes the case that non-masculine men are discriminated against because they are understood as being feminine or womanly, I resist a theory that makes it always the case that this is how they are viewed. If one of the ultimate goals of antidiscrimination laws is, and I believe it should be, to provide all people more options with respect to how they do their gender, then I

356. See Case, supranote 301, at 60-61 (arguing that sexual harassment doctrine, which provides women with remedies for "gender discrimination against the feminine," should also protect men who are taunted because they are perceived to behave in a feminine way).

357. See id. Kathryn Abrams has taken a similar position with respect to the Goluszek case:

Goluszek... was a biological man who responded to harassment in a socially female manner:

he blushed, he stammered, he tried to avoid sexual conversations, and his work performance refused to see the derogation of a (at least allegedly) suffered.... The district court...

socially female response or the attempt to enforce a social role conventionally tailored to one's biological sex.

Kathryn Abrams, Complex Claimants and Reductive Moral Judgments: New Patternsin the Searchfor Equality, 57 U. Prrr. L. REv. 337, 347 (1996) (footnote omitted).

358. See Katherine M. Franke, The CentralMistake of Sex DiscriminationLaw: The Disaggregation of Sex from Gender, 144 U. PA. L. REv. 1, 70-74 (1995) (describing the transition from the preEnlightenment one-sex model, in which men and women were viewed as variations on the same human body, to the contemporary two-sex model viewing men and women as "different kinds of human beings").

359. Chamallas, Feminist Constructions of Objectivity, supra note 33, at 128.

360. See id.

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Apd~rl 1997] regard it as vital that we resist the urge to reduce a failure of proper masculinity to femininity. Instead, we should make room for subject positions other than socially female ' and socially male.

Sex discrimination doctrine need not foreclose the possibility that both men and women could find certain sexual conduct in the workplace equally offensive, but not similarly so. Workplace sexual conduct may injure women because it objectifies them as sex objects, and it may injure men because it assumes that all men conform to and join into a kind of sexualized heteromasculine culture. The doctrine should allow for the possibility that McWilliams and Polly found their sexualized working environment hostile, and that their female coworkers found that environment discriminatorily hostile as well, but for conceivably different reasons. The fact that both men and women can be harmed by the same conduct for different reasons, while failing a test of "but for" causation and falling within the exemption for conduct that is equally offensive to men and women, should not necessarily render the conduct something other than sex discrimination.

Here, as elsewhere, the anomaly at the margin suggests a problem with the doctrine at the center.363 The over determination of sexual harassment as either something males as a class, do to females as a class, or as conduct motivated by sexual desire, fundamentally misstates the wrong of sexual harassment. Worse, it trivializes the nature of the harm at issue in sex discrimination cases generally, and sexual harassment cases specifically.

Critique of Anti-subordination C.

Finally, the anti-subordination view of sexual harassment, while providing the something more that is lacking in the anti-sex and "but for" paradigms, seems to over determine the nature of the harm as something males do to females. Catharine MacKinnon and Ruth Colker have answered the call to provide a theory of sexual harassment that identifies "what practices are subordinating rather than simply differentiating." 364 A theory of sexual differentiation alone is not an adequate theory of discrimination. What is needed, on this account, is an analysis of the structural problem of enforced inferiority of women. 365 The structural problem that forms the foundation of MacKinnon's

inequality approach is one that takes inequality between "the sexes" as a given:

"[A]ll practices which subordinate women to men are prohibited. ' 366 Under

361. I use the term "socially female" to describe a properly feminine woman.

362. I use the term "socially male" to describe a properly masculine man.

363. See, e.g., Franke, supra note 358 (examining the legal treatment of discrimination claims brought by transgendered people so as to show how the disaggregation of sex from gender in sex discrimination law is misguided); Susan Sturm & Lani Gunier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REv. 953, 958 (1996) (noting problems with affirmative action, conceived as marginal exceptions to the merit principle, should provoke an examination of flaws in the merit principle move generally).

364. Colker, supra note 53, at 1033 n.122.

365. See MAcKiNNoN, supra note 23, at 4-5.

366. Id. at 4.

HeinOnline -- 49 Stan. L. Rev. 759 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 the anti-subordination approach, Title VII's application to practices that 3 67 subordinate some men to other men end up being explained away uneasily.

Two fundamental questions emerge from the subordination account of sexual harassment. First, should we assume that all or most sexual activity initiated by men in the presence of women reproduces subordinating gender norms?

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