«ARTICLES What's Wrong With Sexual Harassment? Katherine M. Franke* In this article, Professor Franke asks and answers a seemingly simple question: ...»
If so, why? Second, what does the theory say about same-sex sexual harassment or harassment by women of men? The power of MacKinnon's insights applies almost exclusively to contexts were women are sexually harassed by men. For MacKinnon, the social and historical construction of male and female sexuality and identity does all the work of transforming sexual harassment into sex discrimination. The hierarchical inequality of the sexes is crucial to this analysis. Similarly, in her analysis of subordination, Ruth Colker argues that "[t]he real issue should be a policy's contribution to, or redress of, subordination. '368 But Colker's group-based analysis is limited to intersexual domination based upon a biological definition of group identity.
To my mind, the subordination account conceptualizes the wrong of sexual harassment better than either the anti-sex or "but for" formulations. The antisubordination principle best conceives sexual harassment as a sexually discriminatory wrong, but it does so by relying too heavily on the premise that this is something that men, as a biological category, do to women, as a biological category. The anti-subordination principle could be greatly improved by conceptualizing the problem as one of gender subordination defined in hetero-patriarchal terms. Thus, sexual harassment is understood as a mechanism by which an orthodoxy regarding masculinity and femininity is enforced, policed, and perpetuated in the workplace. Unwelcome and offensive conduct by men directed at women that has the effect of reducing women's identity to that of a sex object while figuring men's identity as that of a sex subject is one example of gender subordination. But so is the sexual harassment of Goluszek, Polly and McWilliams-men who were insufficiently masculine and as a result were punished by their male coworkers with a campaign of unwelcome, offensive, and hostile conduct of a sexual nature. As such, Goluszek's, Polly's, and McWilliams' male coworkers were policing proper masculinity in men, just as Lois Robinson's coworkers were policing proper femininity in women.
Therefore, the "but for" and the anti-sex formulations of the wrong of sexual harassment require something more in order to make the link to sex discrimination. The subordination theory, while providing something more, does so by regarding sexual harassment as an authentic expression of male identity.
As such, the dominant feminist conception of sexism, understood in patriarchal terms, relies too heavily upon the notion that sexism is something men do to 367. "[C]ases that depart from the assumption of discrimination as an intergroup phenomenon are treated as anomalous and are circuitously or unsatisfactorily explained." Abrams, supra note 218, at 2523.
368. Colker, supra note 53, at 1033.
women. 369 Limiting the conception of sexual harassment to those bad acts perpetrated by men against women essentializes women's status as victims and minimizes the degree to which gender harassment is really about the enforcement or perpetuation of oppressive or subordinating gender (not biological) stereotypes. The harassment of nonmasculine, including but not limited to effeminate, men by other men is ignored under these constrained accounts of what type of person has standing to file a Title VII claim.
The underlying logic of this conception of sexism is transitive in nature:
Men dominate women. MacKinnon makes this logic abundantly clear: "Man fucks woman; subject verb object." 370 Sexism, then, is regarded as a kind of
biological warfare, the shrapnel of which is gender:
Stopped as an attribute of a person, sex inequality takes the form of gender, moving as a relation between people, it takes the form of sexuality. Gender emerges as the congealed form of the sexualization of inequality between men and women.... the female, subordination is sexualized, in the way that For dominance 37is for the male, as pleasure as well as gender identity, as femininity. 1 The same-sex cases perhaps best demonstrate how the structural problem MacKinnon identifies is too dependent upon an underlying sexually dimorphic logic. What is wrong with the world MacKinnon describes in her work, 3 7 2 is not exhausted by the observation that men subordinate women, although that is certainly descriptively true in most cases. Rather, the problem is far more systemic. By reducing sexism to only that which is done to women by men, we lose sight of the underlying ideology that makes sexism so powerful, effective, and harmful. Kathryn Abrams, better than anyone else, appreciates the limitations of the subordination account of sexual harassment, and, in its place, has suggested that in some cases, sexual harassment is either a form of gender discrimination against women-derision of some of the qualities that make women targets for sexual harassment--or a form of gender discrimination against men that disciplines not the group but a distinct subset for abandoning the qualities associated with men for the more socially stigmatized characteristics associated with women.
369. Gerda Lemer defines patriarchy as the "manifestation and institutionalization of male dominance over women and children in the family and the extension of male dominance over women in THE CREATION OF PATRIARCHY 239 (1986).
society in general." GERDA LmEN,
370. Catharine A. MacKinnon, Feminism, Marxism, Method and the State:An Agenda for Theory, 7 SIGNS 515, 541 (1982) (arguing that rape is an "abuse[ ] of sex" and is a "form[ ] of enforcement...
[that is] sexualized").
371. MAcKINNON, supra note 32, at 6-7.
372. Sexual Harassment of Working Women represents the first such example. MAcKNNON, supranote 23. In Only Words, MacKinnon's more recent discussion of the law's treatment of pornography, she continues the analysis she began in the sexual harassment area by examining how men subordinate women through the production and consumption of pornography. MAcKINNON, supranote 151.
373. Abrams, supra note 218, at 2516. Again, I question the necessity of understanding the stigmatization of nonmasculine men as a version of the vilification of women. See text accompanying notes 192-194, 302-308 & 356-360 supra.
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STANFORD LAW REVIEWIt is upon Abrams' view of sexual harassment as gender discrimination that I want to build. The subordination of women by men is part of a larger social practice that creates gendered bodies-feminine women and masculine men.
According to this ideology, sex and gender ultimately collapse in such a way that femininity is understood as the authentic expression of female agency and masculinity is regarded as the authentic expression of male agency. 374 This ideology also includes a sexual hierarchy in which women are regarded as inferior to men, and femininity is regarded as inferior to masculinity. 375 While I may get no argument from MacKinnon on these observations about what sexism is and does, I want to resist her impulse to collapse sexism with sex: for MacKinnon sexism is something the male sex does to the female sex, and sex (as in "to have sex") is always, already sexist.
IV. SEXUAL HARASSMENT CONCEIVED OF AS TECHNOLOGY OF SEXISMMy aspiration in the preceding sections has been to provide two fundamental insights about existing sexual harassment doctrine: (1) the Supreme Court has not offered a theory of why sexual harassment is a form of sex discrimination; and (2) the three dominant accounts of the wrong of sexual harassment advanced by theorists and lower courts trivialize the legal norm against sex discrimination. The same-sex cases merely foreground a dire problem present in more central cases because the inferences that work well in male/female cases are of no aid or comfort in same-sex cases. In the same-sex harassment cases, once denied the ability to rely upon intuition and conclude that sex discrimination is afoot, courts and theorists alike must specify a theory of why we consider sexual harassment a form of sex discrimination. Lest the reader draw the wrong conclusion, allow me to state clearly that I believe it is appropriate, efficient, and legitimate for courts to draw inferences of discrimination in traditional different-sex harassment cases. My purpose here is to both issue and accept an invitation to undertake the hard work of developing a sufficiently nuanced theory of why sexual harassment is a form of sex discrimination. If we are to indulge our intuitions in the form of inferences, then this must take place within the context of a theory that recognizes the role that sexual harassment, at the center and at the margins, plays in constructing the gender of both harasser and harassee, and in reinforcing gender stereotypes.
Like MacKinnon, I agree that the subordination account of sexual harassment provides better purchase on the nature of this problem and avenues for relief than do either the formal equality or sex-equals-sexism approaches. But what is the wrong of sexual subordination? MacKinnon, Colker, and others understand it as a gendered hierarchy based upon the enforced inferiority of women to men. 376 Underlying this gendered inferiority is an ideology that is designed to reduce women to victimized, highly sexual, less competent subhumans who do not enjoy full agency.
374. See Franke, supra note 358, at 4.
375. Mary Anne Case recently discussed this hierarchy. See Case, supra note 301, at 2-3.
376. See MAcKiNNON, supra note 23, at 4-5; Colker, supra note 53, at 1033.
Rather than confine the subordination analysis to the methods by which men oppress women, I want to ask a more systemic question: Does the underlying ideology that feminizes and sexualizes women also have an effect upon who men are or can be? As I see it, the wrong of gender-based subordination lies in its power as an overarching regulatory practice that has as its goal the production of feminine women as (hetero)sexual objects and masculine men as (hetero)sexual subjects. Sexual harassment can be a very effective means of accomplishing these hetero-patriarchal objectives, whether by enacting these norms-as in the case of men harassing female subordinates in the workplace-or by punishing gender nonconformists-as in the cases of Goluszek, Polly, or McWilliams, the women who worked in the Jacksonville Shipyards, 37 7 or who work on highway construction crews.3 78 It is easy to come away from much of the anti-subordination literature understanding sexism as something that men exclusively visit upon women. Yet sexism, understood in the terms I urge, is something that affects and regulates us all, male and female.
This is not to say that it affects us all in the same way, but rather in ways which harm some women and some men in similar fashions. What is more, I want to resist the urge to individualize the injuries men like Goluszek, McWilliams, and Polly experienced. Yes, they were each selected for harassment because of some characteristic they possessed as individual men. 379 But the net effect of this kind of conduct extends beyond any particular case in that it solidifies what "real men" and "real women" should be. This dynamic affects all of us, not just people like Goluszek.
Many feminist subordination theorists take it as given that male and female subjects come to the sexually harassing workplace fully constituted: he as subordinator/colonizer, she as subordinated/colonized. Indeed, "[tlhe dominant approach posits a world of fully formed beings, who either embrace or are thwarted by opinions of differential capacity. The move toward discrimination as devaluation requires an understanding of the way discrimination helps form the subject. '380 It is upon this insight that I wish to build.
The existing body of feminist work on sexual harassment offers a thorough and thoughtful critique of sexual harassment. Yet, theories that regard sexual harassment as the inevitable or, at least, natural expression of male agency render the dismantling of the male gaze nearly impossible. Only by reversing the collapse of maleness and masculinity can we begin to understand the complexity of sexual harassment as a regulatory practice. Several examples will illustrate this point.
377. See Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991).
378. See, e.g., Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir. 1988).
379. See text accompanying notes 228-248 supra for descriptions of the harassment experienced by these three men.
380. Abrams, supranote 218, at 2529. Judith Butler has explored the epiphenomenal relationship between social practices and human subjectivity in some interesting ways: "[T]he body becomes its gender through a series of acts which are renewed, revised, and consolidated through time." Judith Butler, PerformativeActs and Gender Constitution:An Essay in Phenomenology and Feminist Theory, 40 THam J. 519, 523 (1988).
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STANFORD LAW REVIEWIn Steiner v. Showboat Operating Co.,381 Barbara Steiner was the first woman promoted to the position of floor person in defendant's Las Vegas casino.
The job of floor person, or floor man, had previously been held only by men.
Presumably, prior to Steiner's promotion, female casino employees worked as cocktail waitresses, or the like; jobs that substantially exploited female workers' sexuality as a part of the job. The floor person position was different;
sexiness was not an essential aspect of the job. Steiner alleged that her male supervisor called her names such as "'dumb fucking broad,' 'cunt,' and 'fucking cunt." 38 2 More importantly, however, he also yelled at her in front of customers and coworkers: "'You are not a fucking floor man [her job]. You are a fucking casino host.... Why don't you go in the restaurant and suck their dicks[?]'.. She claims he repeated this two or three times, laughed, and walked off with a grin on his face. 38 3 There seems little doubt that this form of harassment was humiliating to Steiner, particularly since it took place in front of customers and coworkers.
But what made it sex discrimination, was not, as the court found, the sexual content of the conduct, 384 but that he used sexual harassment to put Steiner in her "proper place," thereby diminishing her authority and role as a floor person.