«ARTICLES What's Wrong With Sexual Harassment? Katherine M. Franke* In this article, Professor Franke asks and answers a seemingly simple question: ...»
These cases present the most difficult challenge to my, or any, theory of sex discrimination. Clearly these men have suffered some harm, but is that harm one of sex discrimination, and is it actionable under Title VII? Like the first set of same-sex cases, these cases are not neatly resolved by resort to grand theory.
As I have described it, the paradigmatic case of sexual harassment, and of sex discrimination, is where sexual conduct manifests a performative or disciplinary function within a hetero-patriarchal orthodoxy, either by design or in its effect. This disciplinary or regulatory function is not necessarily present where, for instance, a male employee teases other male employees with plastic penises, 40 3 uses language like "suck my dick," 40 4 or where talk of penis size, sexual conquests, or the touching of crotches take place in all-male workplaces. 405 True, the fraternity-type culture of these workplaces embodies a normative vision of who men are or should be: characters in the movie Animal House. Some men may find this kind of work environment fun, others may find it objectionable. But, do the men who find it objectionable have standing to raise a claim under Title VII? Can they claim that the sexual conduct that surrounds them in the workplace harms them in a way that Title VII prohibits?
Clearly there is a gendered orthodoxy at work in these workplaces that reproduce certain norms about male subjectivity, and our "enlightened man" finds them objectionable-that's not the kind of man he wants to be.
A principled approach to this scenario lies not exclusively in an analysis of the workplace norms, but in a theory of standing. At what point has our "enlightened man" suffered a harm that is cognizable under Title VII? Finding the workplace objectionable is not enough. Yet, once this man has indicated his objections and then is targeted for hostile treatment because of his failure to conform to the workplace norms, then he has suffered a harm within Title
401. Quick v. Donaldson Co., Inc., 895 F. Supp. 1288, 1296 (S.D. Iowa 1995), rev'd, 90 F.3d 1372, 1380 (8th Cir. 1996). This language does beg a rather obvious question: what might "necessary" juvenile behavior be?
402. Absent from the decisions in these cases is any discussion of victim criteria, or victim gender identity. It is probably safe to assume that concealed in many of the second kind of cases are situations belonging to either the first or third category of same-sex harassment: those where the defendant harasser is gay or those where the plaintiff was a target of unwelcome sexual conduct because of his gender.
In future litigation, advocates should develop factual records regarding gender norms of the workplaces in question, and the gender identities of harassers and victims alike.
403. See Hart, 235 Cal. Rptr. at 70.
404. Johnson v. Hondo, Inc., 940 F. Supp. 1403, 1406 (E.D. Wis. 1996).
405. See, e.g., Benekritis v. Johnson, 882 F. Supp. 521, 523-24 (D.S.C. 1995) (describing how the plaintiff, a male teacher, alleged that during an after school basketball game, another male teacher "sexually harassed him 'by placing his genitals against Plaintiffs backside,' and 'by placing his hand on Plaintiff's genitals"' (citations omitted)).
HeinOnline -- 49 Stan. L. Rev. 768 1996-1997
SEXUAL HARASSMENTApril 1997] VII.40 6 In these cases, Title VII plaintiffs must show a gender orthodoxy in the workplace, that the plaintiff regarded it as both offensive and unwelcome and that the plaintiff suffered retribution or some form of penalty for making that unwelcomeness known. In this way, the plaintiff can demonstrate that the conduct complained of was "intimidating, hostile or abusive," and that the conduct was undertaken "based on his sex," not simply because of the plaintiff's biological sex ("but for"), but based on his gender. I recognize that this is a higher standard of harm than is currently applied in more paradigmatic cases. But this difference I find acceptable. In more traditional cases, where a woman alleges that she has been sexually harassed by a man, a lower quantum of proof is sufficient to trigger an inference of sex discrimination because larger cultural norms of women as sex objects and men as sex subjects have been reproduced in the offending conduct. In the same-sex context described above, the same intuitions and larger cultural dynamics are not at work, therefore more information is necessary in order to conclude that the conduct complained of is sex discrimination, as opposed to some other form of nonsexist offensive behavior.
Title VII cannot and should not be the vehicle by which we dismantle every hypermasculine or hyperfeminine microculture. If that were the case, then my theory would essentially reduce to the use of Title VII to impose my orthodoxy of nonsexist culture on everyone else, and that is not my goal. Instead, I regard the motivating good that lies behind workplace nondiscrimination laws to be gender pluralism in the absence of coercion. By this I mean that at least in the workplace, so long as a person does his or her job competently, that person should be allowed some flexibility in the manner in which he or she expresses his or her gender. Certainly, no one should be punished in the manner in which Goluszek, Polly, and McWilliams were for failure to live up to a hetero-masculine norm in the workplace. And no woman should have to enact hetero-sexist norms of female sexuality as a part of her employment as did Mechelle Vinson.
Simply because I am not willing to regard all unwelcome or obnoxious sexual conduct, ipso facto, as sex discrimination, does not mean that I find such conduct unactionable. Certain types of sexual conduct remain wholly inappropriate in the workplace, even though, in my view, they are not sexually discriminatory. Workplace sexual misconduct that does not play a role in the regulation and enforcement of hetero-patriarchal gender norms, while not actionable under sex discrimination laws should still be actionable under appropriate state tort, contract,40 7 or even racketeering laws. 40 8 As a companion to the approach to sexual harassment that I advance, it may make sense for states to enact statutes providing remedies for workplace sexual misconduct that
406. My colleague Toni Massaro has suggested that I call this the "double-bagging" rule. The first bagging may not raise a Title VII violation, but if subsequent baggings are undertaken as part of a play-or-pay form of retribution, then a harm recognized by Title VII has occurred.
407. Possible theories of recovery might include tortious interference with the contractual or employment relationship, intentional infliction of emotional distress, breach of the covenant of good faith and fair dealing, and the tort of outrage.
408. See William H. Kaiser, Note, Extortion in the Workplace: Using Civil RICO to Combat Sexual Harassmentin Employment, 61 BROOK. L. REV. 965 (1995) (arguing "that certain sexual harassment claims fit RICO definitions").
HeinOnline -- 49 Stan. L. Rev. 769 1996-1997 [Vol. 49:691
STANFORD LAW REVIEWwould render both the individual actors as well as the employer liable, given appropriate agency principles. 40 9 Of course, these kinds of statutes will be difficult to draft well and enforce responsibly, as the goal would not be to render actionable all workplace expressions of sexuality, but only conduct that exceeded some reasonable threshold. This problem, while difficult, is one with which we must already contend in existing sexual harassment jurisprudence, and therefore should not be regarded as insurmountable. I leave for another day, however, this difficult line-drawing problem.
The third set of same-sex cases demonstrate the degree to which errors in the current jurisprudence of sexual harassment produce problems of underinclusion. The Goluszek case, as well as more traditional different-sex harassment cases, demonstrates that the fundamental wrong of sexual harassment lies not in the fact that the conduct would not have been undertaken had Goluszek been a woman, not in the fact that the conduct was sexual in nature, nor in the fact that sexual harassment is a means of affecting the subordination of women to men. Rather, for Goluszek, like Polly and McWilliams, sexual harassment served as punishment meted out by other "real men" because Goluszek failed to perform his gender correctly. 410 In this sense, what occurred in these same-sex cases is similar to what transpired between men and women at the Jacksonville Shipyards and among Hall Construction employees. But discipline does not exhaust the utility and purpose of sexual harassment of men like Goluszek.
Just as in the more traditional cases where a man harasses his female secretary, the third kind of same-sex harassment has a performative effect as well: it authenticates the harassers' status as "real men" and exiles Goluszek from the
409. A "knew or should have known" standard could apply here to create employer liability, just as it does under Title VII. See note 29 supra.
410. Only one court has appreciated the role that sexual harassment can play in the policing of gender norms. In Zalewski v. Overlook Hospital,692 A.2d 131 (N.J. Super. Ct. Law Div. 1996), the court refused to grant summary judgment for the defendant where the male plaintiff alleged that he had been harassed by his male coworkers because they believed him to be a virgin. Indeed, the harassment Mr. Zalewski suffered was very similar to that endured by Goluszek. His coworkers placed a picture of a kitten on Zalewski's desk and attached a caption that read: "the only pussy that Bill has ever gotten," and left another altered photo of Zalewski holding a penthouse magazine and stating: "Wow, Is this what it looks like? How gross. I'll never touch anything like that. Ughhhh!" Id. at 131. Relying in large part upon Mary Anne Case's article on discrimination against effeminate men, id. at 131 n.1 (citing
Case, supra note 301), the Zalewski court held:
plaintiffs co-workers harassed plaintiff because they believed him to be a virgin and effeminate. A jury could therefore conclude that plaintiffs co-workers discriminated against him because he was a male who did not behave as they perceived a male should behave, i.e., that they discriminated against him based on gender stereotyping.
There is no rhyme or reason for allowing sexual harassment claims by men against women, women against men, and harassment because of one's sexual orientation and yet permit and condone severe sexual harassmentof a person because he is perceived orpresumed to be less than someone's definition of masculine.
Id. at 135-36. In Zalewski, a state trial court judge in Elizabeth, New Jersey saw what no federal court judge, particularly in the Fourth Circuit, has been able to appreciate: that it is a small step from the sexual stereotyping that Ann Hopkins suffered to the sexual harassment endured by Goluszek, Polly, McWilliams and Zalewski.
HeinOnline -- 49 Stan. L. Rev. 770 1996-1997
SEXUAL HARASSMENTApril 1997] domain of men. Sexual harassment, thus, is reflexive, not transitive, normative,4 11 not ontological.
These examples illustrate the different ways in which sexual harassment, as regulatory practice, inscribes, enforces, and polices a particular view of who women and men should be. As such, it is a technology of gender discrimination, feminizing women and masculinizing men. Our culture is replete with less obviously coercive measures that have the effect of accomplishing the same goal, media images of women and men being the most salient example.
What is important about these technologies of gender is that they operate "on us" all the time, constantly reinforcing and creating feminine women and masculine men, thereby normalizing a set of gender roles.
It grossly oversimplifies a complex performative and regulatory practice like sexual harassment to demand that the law provide one formal and symmetrical account of this workplace harm, such as the jurisprudence of "but for" causation. True, it is much easier to say once and for all that such conduct is discriminatory because it is sexual, or to merely apply a "but for" test. But each of these approaches provides a jaundiced account of the wrong of sexual harassment, in both same and different-sex cases, while producing significant doctrinal problems. Conceiving of sexual harassment as a part of and as an instrument in the policing, enforcement, and perpetuation of hetero-patriarchal gender norms requires that we contextualize the conduct in order to understand it as sex discrimination.
Sexual harassment is something men do to women. This statement, while quite familiar and seemingly uncontroversial, is both descriptively underinclusive and theoretically short-sighted. The link between sexual harassment and sex discrimination is an important one, and it is one that is fair to assume is present in typical different-sex cases. But why? It is the why, not the what, of sexual harassment that I feel deserves closer theoretical attention. To date, the Supreme Court has been disinclined to do more than summarily conclude that sexual harassment is a form of sex discrimination. If courts are to continue to draw summary inferences and conclusions of sex discrimination in sexual harassment cases, and I believe that they should in most cases, it is imperative that
411. See Juram BUTLER, BODIES THAT MATTER: ON THE DiscuRsivE Lmrrs OF "SEx" 1 (1993) (stating that "[t]he category of 'sex' is, from the start, normative" and it "not only functions as a norm, but is part of a regulatory practice that produces the bodies it governs").
412. Judith Butler, first and foremost, has developed this notion of gender, performativity, and
The act that one does, the act that one performs, is, in a sense, an act that has been going on before one arrived on the scene. Hence, gender is an act which has been rehearsed, much as a script survives the particular actors who make use of it, but which requires individual actors in order to be actualized and reproduced as reality once again. The complex components that go into an act must be distinguished in order to understand the kind of acting in concert and acting in accord which acting one's gender invariably is.
Butler, supra note 220, at 526; see also BumxE, supra note 411; JuDrrH BUTLER, GENDER TROUBLE:
FEMINISM AND THE SUBVERSION OF IDENTITY (1990).
HeinOnline -- 49 Stan. L. Rev. 771 1996-1997 [Vol. 49:691
STANFORD LAW REVIEWa careful theory expounding the wrong of sexual harassment provide the context within which these evidentiary short cuts take place.
The wrong of sexual harassment must consist of something more than that the conduct would not have occurred "but for" the sex of the target, that the conduct was sexual in nature, or that it was something men do to women. The "something more" I suggest is that we regard sexual harassment as a tool or instrument of gender regulation. It is a practice, grounded and undertaken in the service of hetero-patriarchal norms. These norms, regulatory, constitutive, and punitive in nature, produce gendered subjects: feminine women as sex objects and masculine men as sex subjects. On this account, sexual harassment is sex discrimination precisely because its use and effect police hetero-patriarchal gender norms in the workplace.
I do not suggest that we reject existing doctrine, but rather that we work to develop a theoretical justification for inferring sex discrimination in traditional different-sex claims. This theoretical work will also provide the tools to consider whether same-sex sexual harassment raises the same kind of concerns as those present in the more central cases. All that I urge is renewed attention to the "based upon sex" element of the plaintiff's case, such that we view the wrong of sexual harassment in systemic terms, rather than in terms that elevate a method of proof ("but for") over the nature of the harm itself, or that conflate sex with sexism. To understand sexual harassment as a regulatory practice that constitutes gendered subjects by inscribing, enforcing, and policing hetero-patriarchal gender norms is to provide a better account of what sexual harassment is and what it does-in both different-sex and same-sex cases. Most importantly, this approach better explains why sexual harassment is a kind of sex discrimination.