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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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In this sense, the sexual harassment feminized Steiner, rendering her less competent and more sexual, while at the same time it masculinized the male supervisor as someone who possessed both the will and the power to render his female subordinate a sex object. In a case such as this, sexual harassment is used both to police and discipline the gender outlaw: the woman who dares to do a man's job is made to pay. 3 85 Sexual harassment is the means by which the male harasser proves himself as properly and effectively masculine, while at the same time inscribes femininity on the female victim. On numerous occasions the Supreme Court has condemned practices that are "practically a brand '3 86 upon [women and African-Americans]... an assertion of their inferiority.

Sexual harassment operates as both an assertion of women's inferiority and a brand thereof upon them. In cases such as Steiner, it is reasonable to infer that when a male supervisor calls a female subordinate a "fucking cunt" and tells her to "go suck the customers' dicks," 3 87 she has been discriminated against

381. 25 F.3d 1459 (9th Cir. 1994).

382. Id. at 1461.

383. Id. (parentheticals in original).

384. "While Trenkle may have referred to men as 'assholes,' he referred to women as 'dumb fucking broads' and 'fucking cunts'.... It is one thing to call a woman 'worthless,' and another to call her a 'worthless broad."' Id at 1464.

385. It is worth noting that many of the most prominent sexual harassment cases were brought by women who were sexually harassed when they entered nontraditionally female employment: Teresa Harris worked as an equipment manager for Forklift Systems, Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); Barbara Henson was a police dispatcher in a local police department, Henson v. City of Dundee, 682 F.2d 897 (1Ith Cir. 1982); Lois Robinson was one of the first women to work in the Jacksonville Shipyards, Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991).

386. J.E.B. v. Alabama ex reL T.B., 511 U.S. 127, 142 (1994) (quoting Strauder v. West Virginia, 100 U.S. 303, 308 (1880)).

387. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1461 (9th Cir. 1994).

HeinOnline -- 49 Stan. L. Rev. 764 1996-1997

SEXUAL HARASSMENT

April 1997] "based on her sex." But if we are going to draw such an inference, we must first ground it in a principled theory of sex discrimination.

Next, let us again consider the sexual harassment of Mr. Goluszek. He became a target for sexual harassment by male coworkers because he was a "mama's boy" and was uncomfortable with adult male (hetero)sex talk. The court rejected his Title VII sexual harassment claim, however, reasoning that he did not work in an environment that degraded males. 388 In fact, Goluszek worked in an environment where males degraded other males who were insufficiently masculine. Just as Steiner's male supervisor used sexual harassment to punish her for acting out of place, Goluszek's male coworkers sexually harass him because he did not embody a union of maleness and masculinity. By asserting their proper masculinity through the idiom of sexual harassment, Goluszek's male coworkers humiliated him because he held a man's job without acting manly. Thus, Goluszek's case presents the mirror image of Steiner's.

If "to regulate" means "to bring under the control of law or constituted authority," 38 9 then in both Steiner's and Goluszek's cases sexual harassment was used to regulate their gender. Steiner, as a woman who was not acting sufficiently feminine, and Goleszek, as a man who was not acting sufficiently masculine, were brought under control of a law of gender that insists that femininity is the only acceptable expression of femaleness, and that masculinity is the only acceptable expression of maleness. 390 Steiner's male supervisor and Goluszek's male coworkers functioned as the authorities-in-fact who enforced the law of gender in their respective workplaces.

This conception of sexual harassment is disciplinary in nature. Discipline, of course, has two functions, the imposition of punishment 39 1 on the one hand,

388. Goluszek v. H.P. Smith, 697 F. Supp. 1452, 1456 (N.D. 111. 1988).

389. WEnsTrEe's THIRD NEw INTERNATIONAL DICTIONARY, supra note 9, at 1913.

390. Such a conception relies upon the notion that "[firom a feminist point of view, one might try to reconceive the gendered body as the legacy of sedimented acts rather than a predetermined or foreclosed structure, essence or fact, whether natural, cultural, or linguistic." Butler, supra note 380, at 523.

Sedimentation is a concept familiar to phenomenologists, and finds its origins in the late Husserl, EDMuND HussEu., TE CRISIS OF EUROPEAN SCIENCES AND TRANSCENDENTAL PHENOMENOLOGY 52 (John Wild ed. & David Carr trans., 1970), and in Mereau-Ponty, MAURICE MER.LEAU-PONTY, SIGNS 91-92 (John Wild ed. & Richard C. McCleary trans., 1964).

Steven Winter introduced the concept to legal theory:

[Tihe concept expresses the way meanings and assumptions build up within the subject and, once internalized, operate without the subject's conscious awareness....

Sedimentation accounts both for intersubjectivity and for community. Because many subjects are situated in the same environment, social experiences such as routine or habitual interactions between subjects give rise to mutual or reciprocal sedimentations. Through such sedimentations, shared social experiences develop into "institutions."





Steven L. Winter, Indeterminacy and Incommensurability in ConstitutionalLaw, 78 CAL. L. Rev. 1441, 1487-88 (1990) (footnote omitted).

"The metaphor connotes the alluvial build-up of categories and conceptions deposited by the flow of our interactions and experiences in the physical and social world." Steven L. Winter, An Upside/ Down View of the Countermajoritarian Difficulty, 69 Tex. L. Rv. 1881, 1883 n.7 (1991). From his phenomenological stance, gender is the alluvial backwash that, after sufficient repetition, renders us fully and properly gendered subjects. Thus conceived, gender is not something we have, but something that has us.

391. See WEBsTER'S TmRD Nev INTERNATIONAL DICTIONARY, supra note 9, at 1843.

HeinOnline -- 49 Stan. L. Rev. 765 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 and the restoration or maintenance of order on the other.392 Punishment and

order are central to understanding the power of sexual harassment:

In terms of an explicitly feminist account of gender as performative, it seems clear to me that an account of gender as ritualized, public performance must be combined with an analysis of the political sanctions and taboos under which that performance may and may not occur within the public sphere free of punitive consequence.

Accordingly, masculinity and femininity are compulsory aspects of humanity, 3 9 4 to be performed according to clear and discrete scripts. Those who fail, or refuse, to abide by its rules will be punished; often ruthlessly.

The circumstances under which Mechelle Vinson was sexually harassed by her male boss illustrate a different way in which sexual harassment operates as a regulatory practice. Vinson worked as a bank teller for defendant Meritor Savings Bank, 396 a job traditionally held by women. Rather than policing or punishing Vinson for acting in nonfeminine ways, her supervisor reinforced traditional gender norms by regarding her not as a valued employee, but principally as a sex object who was in the workplace to satisfy his sexual needs.

What made the complained of conduct sex discrimination was not the fact that sexual desire motivated her supervisor's actions, but that he both regarded Vinson as a sex object, and forced her into that role by coercing her to have sex with him. In this sense, Vinson's male supervisor was enacting and thereby reinforcing and perpetuating gender norms that positioned him as masculine sexual conqueror and her as feminine sexual conquest. The appropriateness of an inference of discrimination in cases such as Vinson is therefore justified by reference to an underlying theory of gender discrimination.

Recall that the same-sex sexual harassment cases fall into three distinct groups: (1) gay quid pro quo or hostile environment cases where the harasser is shown to be gay and his actual sexual desire for the plaintiff is not challenged;

(2) nongay hostile environment cases where a man harasses another man in the workplace, though not because he wants to have sex with or desires his victim;

and (3) nongay hostile environment cases where a man in the workplace is targeted for harassment of a sexual nature because he fails to conform to hetero-masculine norms.

In the first set of cases, courts have been fairly consistent in holding that this kind of conduct is sex discrimination. Yet what, exactly, is sexist about this behavior, except that it mirrors different-sex harassment in some formal sense? When a man regards another man as a sex object, is that the same kind of discriminatory wrong as when a man regards a woman as a sex object?397

392. See id. at 1588.

393. Butler, supra note 380, at 526 n.9.

394. "Discrete genders are part of what 'humanizes' individuals within contemporary culture." Id. at 522.

395. See id.

396. See Meritor Say. Bank, FSB v. Vinson, 477 U.S. 57, 59 (1986).

397. Kathryn Abrams has suggested that the "courts are far more sympathetic to male sexual harassment claimants when they present the image of a normative, unambiguously male subject who HeinOnline -- 49 Stan. L. Rev. 766 1996-1997 April 1997] SEXUAL HARASSMENT These cases fail to fall within my larger theory of why sexual harassment is a form of sex discrimination. When a gay male supervisor requests sexual favors of a male subordinate no larger cultural gender orthodoxy is being policed, perpetuated or enforced. Rather, the supervisor is exploiting a position of power in order to satisfy his carnal desires. Only upon the most meager of theories of sex discrimination, where "but for" causation can be shown, could one say yes, sex discrimination is afoot.

These cases raise that uncomfortable, yet inevitable, intellectual moment when grand theory fails to provide a unifying and totalizing approach to a problem. Yet there is a middle ground between grand and meager theory, one that suggests a practical rather than principled approach to cases of this sort. Because I resist the use of "but for" causation in sexual harassment cases for all the reasons discussed above, I suggest that in cases where the harasser is shown to be gay, and the harassment is an expression of his own personal sexual desire, the plaintiff should make out a Title VII disparate treatment prima facie case, not a sexual harassment case. While the disparate treatment method of proof may require a showing of "but for" causation, it does not do so in a manner that introduces all of the problems attendant to "but for" causation in sexual harassment cases. So framed, the thomy issues associated with the sexism in sex, or the subordinating power of sex become irrelevant because the plaintiff can easily argue that he is being treated differently than a female coworker because of his sex.

The second kind of same-sex harassment, where men engage in "rough housing," "horsing around, ' 3 99 or "bagging" 40 0 with other men, presents a more difficult question. These cases illustrate the enactment of a kind of masculine sexuality, what one court described as merely "unnecessary juvenile bereceives unexpected sexual attention from another male in the workplace. This is attributable in part to the straight male fear of the spectral homosexual predator.... Abrams, supra note 218, at 2515.

398. Some may respond to this compromise by asking why this move cannot be made in all traditional sexual harassment cases as well, thereby reinstalling the "but for" form of the wrong. To this objection I would respond as follows: in gay same-sex harassment cases, disparate treatment is the only discriminatory meaning of the conduct. In contrast, while it may be the case that some sexual harassment of women by men is motivated by the sexual desire of the harasser, going down that road is dangerous as a matter of principle for reasons I discuss fully above. First, the doctrine should not be locked into the position that sexual harassment ultimately reduces to the inappropriate expression of desire, as much of it is about power expressed in sexual terms. Second, even if desire motivates the behavior in part, it does not exhaust the meaning of the conduct. The sexual harassment of women by men is understood to be sex discrimination because of what it does to the harasser and the victim, not because of the harasser's subjective mental state. Finally, not every case of sexual harassment is a case of disparate treatment sex discrimination. I want to leave open the possibility that both men and women could be harmed by the sexually harassing conduct of a supervisor or coworker. See text accompanying notes 341-363 supra. Thus, in some cases, like the gay harasser, it may be sufficient to argue that the conduct is disparate treatment discrimination, but such an argument is not necessary, or indeed appropriate, in many other sexual harassment cases in order to make out a violation of Title VII.

399. See Hart v. Nat'l Mortgage & Land Co., 235 Cal. Rptr. 68, 70 (Cal. Ct. App. 1987).

400. "Bagging" is a practice whereby "one man would walk past another and make a feinting motion with his hand toward the other's groin." Quick v. Donaldson Co., 90 F.3d 1372, 1374-75 (8th Cir. 1996) ("Quick alleges that at least twelve different male co-workers bagged him on some 100 occasions," and that when he complained of this behavior, his employer "told him that the next time somebody bagged him 'to turn around and bag the shit out of them."').

HeinOnline -- 49 Stan. L. Rev. 767 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 havior by aggressive male co-workers." 40 1 We might want to say that this type of conduct is inappropriate and offensive, but do we want to call it sex discrimination? If we want to resist the urge to collapse sex and sexism, then the sexual nature of this behavior is not enough to render it discrimination "based on sex."



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