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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] trict and circuit courts. 13 While the facts of these cases are certainly curious, often tragic, and in many cases appalling, same-sex sexual harassment plaintiffs have been met by a perplexed judiciary unsure how to deal with the legal questions these cases present: Is same-sex sexual harassment sex discrimination under Title VII? Is it the same as or at least similar to different-sex sexual harassment? If so, why? If not, why not? Extending established Title VII sex discrimination doctrine from more traditional cases to this new wave of claims has proven to be a rather difficult task. In effect, the same-sex sexual harassment claims have raised the infrequently asked question: Why is sexual harassment discrimination "because of sex?" Yet, the same-sex harassment cases can do more than merely raise this difficult question. The disjunctive doctrine that has emerged from the courts' difficulty in dealing with the same-sex cases provides a timely opportunity and excuse for reexamining, reaffirming, and updating feminist conceptions of sexual harassment as a form of sexual discrimination.

The early writings that first advanced the notion that sexual harassment was a violation of Title VII no longer provide an adequate or complete account of the wrong of sexual harassment. In this article I provide an updated account of sexual harassment that better articulates the discriminatory wrong, both for traditional sexual harassment cases in which men harass women, and in the newly litigated cases involving same-sex sexual harassment.

In Part II of the article, I briefly trace the history of sexual harassment theory and jurisprudence, beginning with early cases in which the courts could not or would not regard sexual harassment as sex discrimination. I then review the theoretical arguments developed by feminists that conceptualized the wrong of sexual harassment as a discriminatory wrong, and I trace the application and evolution of those theories in the courts throughout more than twenty years of litigation. As is to be expected, in the hands of the judiciary the doctrine evolved, or devolved, in ways that differ from the feminists' original vision.

In Part III, I critique each of the three dominant formulations of sexual harassment. I show how the existing doctrine fails in male/female as well as male/male or female/female cases. Courts have had a difficult time disposing of the same-sex cases in accordance with existing sex discrimination principles.

In large measure, the courts' difficulty with these cases can be explained by the doctrine's infidelity to its theoretical roots. But close examination of these cases reveals something more: that these theoretical roots simply provide too jaundiced an account of why, in any case, sexual harassment is a form of sex discrimination. A more complete explanation of the sexism in sexual harassment is required. The reasons why the doctrine has failed in the same-sex cases-the conditions of failure, if you will-reveal interesting faults in the jurisprudence of sexual harassment at the core that merit reinforcement and repair.

Finally, in Part IV, I propose a more refined approach to same-sex harassment cases. I begin with the work of theorists who have advanced an underSee notes 16-18 infra and accompanying text for examples of such cases.

HeinOnline -- 49 Stan. L. Rev. 695 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 standing of sexual harassment as a kind of sexual subordination, and improve upon that work in light of the theoretical advances in gender and sexuality studies undertaken since the concept of sexual harassment was introduced to the law. In so doing, I hope to provide a more principled way of understanding harassing sexual conduct between people of the same sex as a form of sex discrimination, and at the same time reaffirm and elaborate further on the original conceptions of the wrong of sexual harassment provided by feminists in the late 1970s and early 1980s. On my account, sexual harassment-between any two people of whatever sex-is a form of sex discrimination when it reflects or perpetuates gender stereotypes in the workplace. I suggest a reconceptualization of sexual harassment as gender harassment. Understood in this way, sexual harassment is a kind of sex discrimination not because the conduct would not have been undertaken if the victim had been a different sex, not because it is sexual, and not because men do it to women, but precisely because it is a technology of sexism. That is, it perpetuates, enforces, and polices a set of gender norms that seek to feminize women and masculinize men. Sexual harassment perpetuates these norms because it takes place within a culture and history that in large part reduces women's identity to that of a sex object, and reinforces men's identity as that of a sexual aggressor. Sexual harassment also can be understood to enforce gender norms when it is used to keep gender nonconformists in line. For example, women who work in nontraditional jobs, such as the women who worked at the Jacksonville Shipyards, 14 frequently experience extreme sexual harassment from their male coworkers as a way of putting them in their "proper place." Similarly, sexual harassment operates as a means of policing traditional gender norms particularly in the same-sex context when men who fail to live up to a societal norm of masculinity are punished by their male coworkers through sexual means. As a tool of sexism, sexual harassment can do its dirty work in either a different-sex or a same-sex context.





Thus, the sexism in sexual harassment lies not in the fact that it is sexual, but in what it does as a disciplinary, constitutive, and punitive regulatory practice.

Before I proceed, a few observations about the same-sex sexual harassment cases are in order. These cases, many and growing in number, are as varied in their facts as are different-sex sexual harassment cases. However, they fall into roughly three distinct categories that the differentiation of which will assist an understanding of how the courts have approached them and why the existing doctrine appears strained in its application to these seemingly unusual cases.

The first set of cases involve a gay male 15 supervisor who seeks sexual favors from or creates a sexually hostile environment for his male subordinates or coworkers. 16 These cases have been the easiest for the courts to dispose of

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

15. There are some cases of same-sex sexual harassment by lesbian supervisors, but compared to the gay male supervisor harassment cases, they are few in number. See, e.g., Pritchett v. Sizeler Real Estate Management Co., No. CIV.A.93-2351, 1995 WL 241855 (E.D. La. Apr. 25, 1995); Myers v. City of El Paso, 874 F. Supp. 1546 (W.D. Tex. 1995).

16. See, e.g., Yeary v. Goodwill Indus.-Knoxville, Inc., No. 96-5145, 1997 WL 73312, at *6 (6th Cir. Feb. 24, 1997); McCoy v. Macon Water Auth., No. 5:94-cv-480-4, 1997 WL 50037 (M.D. Ga. Feb.

5, 1997); Swage v. Inn Phila. & Creative Remodeling Co., No. CIV.A.96-2380, 1996 WL 368316 (E.D.

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April 1997] because they most closely parallel the traditional different-sex cases in which a heterosexual man is charged with sexually harassing a female coworker or subordinate.

The second set of cases involve nongay same-sex harassment. Here, the defendant is either heterosexual, or at least not alleged to be gay, and is charged with exhibiting sexual behavior in the workplace in such a way that another male employee regards as both unwelcome and offensive. 17 In these cases, the harasser neither wants to have sex with the plaintiff, nor does he desire to have sex with members of the class of people to which the plaintiff belongs. Rather than sexually objectifying the plaintiff, the harasser engages in sexual behavior that is designed to or has the effect of making the plaintiff annoyed, uncomfortable, offended, humiliated, intimidated, or otherwise victimized by the defendPa. June 21, 1996); Johnson v. Community Nursing Servs., 932 F. Supp. 269 (D. Utah 1996); Waag v.

Thomas Pontiac, Buick, GMC, Inc., 930 F. Supp. 393 (D. Minn. 1996); Tietgen v. Brown's Westminster Motors, Inc., 921 F. Supp. 1495 (E.D. Va. 1996); Rushing v. United Airlines, 919 F. Supp. 1101 (N.D.

Il. 1996); Williams v. District of Columbia, 916 F. Supp. 1 (D.D.C. 1996); Tanner v. Prima Donna Resorts, Inc., 919 F. Supp. 351 (D. Nev. 1996); Ton v. Information Resources, Inc., No. 95 C 3635, 1996 WL 5322 (N.D. Ill. Jan. 3, 1996); Wrightson v. Pizza Hut of Amer., Inc., 909 F. Supp. 367 (W.D.N.C. 1995), rev'd, 99 F.3d 138 (4th Cir. 1996); King v. M.R. Brown, Inc., 911 F. Supp. 161 (E.D.

Pa. 1995); Fredette v. BVP Management Assocs., 905 F. Supp. 1034 (M.D. Fla. 1995); Nogueras v.

University of P.R., 890 F. Supp. 60 (D.P.R. 1995); EEOC v. Walden Book Co., 885 F. Supp. 1100 (M.D. Tenn. 1995); Roe v. K-Mart Corp., No. CIV.A. 2:93-2372-18AJ, 1995 WL 316783 (D.S.C. Mar.

28, 1995); Prescott v. Independent Life & Accident Ins. Co., 878 F. Supp. 1545 (M.D. Ala. 1995);

Joyner v. AAA Cooper Transp., 597 F. Supp. 537 (M.D. Ala. 1983), aff'd, 749 F.2d 732 (11th Cir.

1984); Wright v. Methodist Youth Servs., Inc., 511 F. Supp. 307 (N.D. Il. 1981).

17. See, e.g., Miller v. Vesta, Inc., 946 F. Supp. 697 (E.D. Wis. 1996); Torres v. National Precision Blanking, 943 F. Supp. 952 (N.D. Il1. 1996); Schoiber v. Emro Mktg. Co., 941 F. Supp. 730 (N.D.

I1. 1996); Wiley v. Burger King, No. CIV.A. 96-4859, 1996 WL 648455 (E.D. Pa. Nov. 7, 1996); Larry v. North Miss. Med. Ctr., 940 F. Supp. 960 (N.D. Miss. 1996); Ward v. Ridley Sch. Dist., 940 F. Supp.

810 (E.D. Pa. 1996); Shermer v. Illinois Dept. of Transp., 937 F. Supp. 781 (C.D. Ill. 1996); Marciano v.

Kash N' Karry Foodstores, Inc., No. 94-1657CIV-T-17A, 1996 WL 420879 (M.D. Fla. July 1, 1996);

Gerd v. United Parcel Serv., Inc., 934 F. Supp. 357 (D. Colo. 1996); Kaplan v. Dacomed Corp., No. 95 C 6987, 1996 WL 89148 (N.D. I1. Feb. 27, 1996); Gibson v. Tanks Inc., 930 F. Supp. 1107 (M.D.N.C.

1996); Martin v. Norfolk S. Ry. Co., 926 F. Supp. 1044 (N.D. Ala. 1996); Ladd v. Sertoma Handicapped Opportunity Prog., Inc., 917 F. Supp. 766 (N.D. Okla. 1995); Ecklund v. Fuisz Tech. Ltd., 905 F. Supp.

335 (E.D. Va. 1995); Sardinia v. Dellwood Foods, Inc., No. 94 Civ. 5458 (LAP), 1995 WL 640502 (S.D.N.Y. Nov. 1, 1995); Easton v. Crossland Mortgage Corp., 905 F. Supp. 1368 (C.D. Cal. 1995);

Dixon v. State Farm & Cas. Ins. Co., No. CIV.A.4:94cv165, 1995 WL 810016 (E.D. Va. Aug. 23, 1995); Mayo v. Kiwest Corp., 898 F. Supp. 335 (E.D. Va. 1995), aff'd, 94 F.3d 641 (4th Cir. 1996);

Ashworth v. Roundup Co., 897 F. Supp. 489 (W.D. Wash. 1995); Blozis v. Mike Raisor Ford, Inc., 896 F. Supp. 805 (N.D. Ind. 1995); Quick v. Donaldson Co., 895 F. Supp. 1288 (S.D. Iowa 1995), rev'd, 90 F.3d 1372 (8th Cir. 1996); Raney v. District of Columbia, 892 F. Supp. 283 (D.D.C. 1995); Griffith v.

Keystone Steel & Wire, 887 F. Supp. 1133 (C.D. Ill. 1995); Vandeventer v. Wabash Nat'l Corp., 887 F.

Supp. 1178 (N.D. Ind. 1995); Benekritis v. Johnson, 882 F. Supp. 521 (D.S.C. 1995); Boyd v. Vonnahmen, No. 93-CV-4358-JPG, 1995 WL 420040 (S.D. Ill. Mar. 29, 1995); Oncale v. Sundowner Offshore Servs., Inc., No. CIV.A.94-1483, 1995 WL 133349 (E.D. La. Mar. 24, 1995), affd, 83 F.3d 118 (5th Cir. 1996); McCoy v. Johnson Controls World Servs., Inc., 878 F. Supp. 229 (S.D. Ga. 1995);

Ryczek v. Guest Servs., Inc., 877 F. Supp. 754 (D.D.C. 1995); Myers v. City of El Paso, 874 F. Supp.

1546 (W.D. Tex. 1995); Hopkins v. Baltimore Gas & Elec. Co., 871 F. Supp. 822 (D. Md. 1994), afftd, 77 F.3d 745 (4th Cir.), cert. denied, 117 S. Ct. 70 (1996); Fleenor v. Hewitt Soap Co., No. C-3-94-182, 1995 WL 386793 (S.D. Ohio Dec. 21, 1994), affd, 81 F.2d 48 (6th Cir.), cert. denied, 117 S. Ct. 170 (1996); Jones v. Commander, Kan. Army Ammunitions Plant, 147 F.R.D. 248 (D. Kan. 1993); Moore v.

Northland Evergreens, Inc., No. 1:90-CV-440, 1992 WL 295068 (W.D. Mich. Jan. 27, 1992); Showalter v. Allison Reed Group, Inc., 767 F. Supp. 1205 (D.R.I. 1991); Dilorio v. Perry, 1994 WL 741630 (EEOC Nov. 22, 1994); Martin v. Runyon, 1994 WL 746784 (EEOC Sept. 29, 1994).

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STANFORD LAW REVIEW

ant's conduct. In most of these cases, we might all agree that the defendant's conduct is inappropriate; the hard question is whether the conduct is sexually discriminatory.

The third set of same-sex sexual harassment cases are similar to those just described but differ from them in one significant way: the harassing conduct of a sexual nature was undertaken because of the plaintiff's gender identity. 18 That is, the plaintiff was not sufficiently masculine according to the individual defendant's standards of proper masculine presentation, the gender rules of the particular workplace, or according to masculine gender normativity as defined by the culture more generally.

This third category shows clearly how sexually harassing conduct can effectively enforce particular gender orthodoxies in the workplace. Yet, by and large, courts have been unwilling to recognize this kind of sexual harassmentbetween men as a way of policing hetero-masculine gender norms-as a form of discrimination because of sex and therefore actionable as sex discrimination.

The fact that current sexual harassment jurisprudence has been unable to recognize the sexual discrimination in this last set of cases suggests that something is wrong with the doctrine both at the margins and at the center. This failure begs a reexamination of what exactly is wrong with sexual harassment, and why that wrong is a form of sex discrimination. As the early theorists argued, sexual harassment offends equality principles because it is a kind of sexual subordination. But the current jurisprudence has lost sight of why this is the case. The time has come, then, to reaffirm the anti-subordination principle and articulate it anew in light of the case law and theoretical work undertaken in the twenty years since sexual harassment first became actionable as sex discrimination.

I1. THE JURISPRUDENTIAL HISTORY OF SEXUAL HARAssMENT DOCTRIE



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