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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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The concept of sexual harassment as a kind of sex discrimination entered the legal imagination relatively recently. After a period of unsuccessful litigation in which sexual harassment claims were dismissed under a kind of "boys will be boys" view of the harm, feminist advocates provoked a paradigm shift in the late 1970s and early 1980s in which the sexism in sexual harassment was recognized in the law. In this Part, I discuss the jurisprudential history of sexual harassment doctrine, beginning with the judicial view that trivialized the harm as an inescapable result of the sexual integration of the wage-labor market. I then discuss the three dominant theories under which sexual harassment has been understood to be a form of sex discrimination: formal equality, sex as sexism, and subordination.

A. Sexual Harassment as an Expression of Private, Personal Sexual Desire Early sexual harassment litigation produced a series of defeats for plaintiffs who sought to challenge sexually harassing work environments under Title VII.

18. See, e.g., MeWilliams v. Fairfax County Bd. Of Supervisors, 72 F.3d 1191 (4th Cir.), cert.

denied, 117 S. Ct. 72 (1996); Polly v. Houston Lighting & Power Co., 825 F. Supp. 135, 138 (S.D. Tex.

1993); Goluszek v. H.P. Smith, 697 F. Supp. 1452 (N.D. Il. 1988).

HeinOnline -- 49 Stan. L. Rev. 698 1996-1997

SEXUAL HARASSMENT

April 1997] In Come v. Bausch and Lomb, Inc., 19 one of the first sexual harassment cases litigated under Title VII, two female clerical workers alleged that onerous verbal and physical sexual harassment by their immediate male supervisor amounted to discrimination on the basis of sex. The court recognized that Title VII extended beyond discriminatory hiring or firing to the terms and conditions of employment once hired, but nevertheless rejected the plaintiffs' harassment theory. In prior cases, the court observed, the discriminatory acts had been undertaken pursuant to company policy, or in pursuit of some relative corporate advantage derived from the discriminatory practices. 20 The sexually harassing

conduct of which Come complained, however, was different:

In the present case, [harasser's] conduct appears to be nothing more than a personal proclivity, peculiarity or mannerism. By his alleged sexual advances, [harasser] was satisfying a personal urge. Certainly no employer policy is here [A]n involved.... ougrowth of holding such activity to be actionable under Title VII would be a potential federal lawsuit every time any employee made amorous or sexually oriented advances toward another. The only sure way an employer 1could avoid such charges would be to have employees who were asexual.

In Tomkins v. Public Service Electric & Gas Co., 22 a female clerical worker had gone to lunch with her supervisor with the expectation of discussing a promotion. Instead, he became drunk, made sexual advances toward her, and threatened retaliation when she tried to leave the restaurant. During the several hours that he demanded she remain there with him, he talked of having sex with her and kissed her. Tomkins' attorney argued, among other things, that sexual harassment was a form of sex-role stereotyping prohibited by Title VII insofar as it reflected a view of women as sex objects, while ignoring their individual characteristics.23 In ruling on the defendant's motion to dismiss the case, the judge acknowledged that "Title VII was enacted in order to remove those artificial barriers to full employment which are based upon unjust and long-encrusted prejudice," 24 but did not regard the conduct of which Adrienne Tomkins complained as

grounded in prejudice:

[N]atural sexual attraction can be subtle. If the plaintiff's view were to prevail, no superior could, prudently, attempt to open a social dialogue with any subordinate of either sex. An invitation to dinner could become an invitation to a federal lawsuit if a once harmonious relationship turned sour at some later time. And if an inebriated approach by a supervisor to a subordinate at the office Christmas party could form the basis of a federal lawsuit for sex discrimF. Supp. 161 (D. Ariz. 1975), vacated and remanded without reporteddecision, 562 F.2d 55 (9th Cit. 1977).

20. Il at 163.

21. Id at 163-64.

22. 422 F. Supp. 553 (D.NJ. 1976), rev'd and remanded, 568 F.2d 1044 (3d Cir. 1977).

23. See CATun A. AcKNNON, SEXUAL HARASSMENT OF WORKING WoMEN: A CASE OF SEX DISCRIMINATION 70 (1979) (analyzing the Tomkins case and discussing Tomnkins' attorney's arguments).

24. Tomkins, 422 F. Supp. at 556.

HeinOnline -- 49 Stan. L. Rev. 699 1996-1997 [Vol. 49:691

STANFORD LAW REVIEW

ination if a promotion or a raise is later denied to the subordinate, we would need 4,000 federal trial judges instead of some 400.25 On this view, sexual content or coercion in workplace relationships is merely the inevitable result of a sexually heterogeneous workplace-it is the price women pay for participating equally in the public sphere.26 Here equality is thinly understood as mere access to previously foreclosed areas of the wagelabor market. Compounded by the specter of a well-lubricated slippery slope, the Tomkins court further reasoned that while the conduct complained of might be actionable under state criminal statutes, or could give rise to a civil action in tort, "[Title VII] is not intended to provide a federal tort remedy for what amounts to physical attack motivated by sexual desire on the part of a supervisor and which happened to occur in a corporate corridor rather than a back alley."27 Come and Tomkins are typical of the kind of response that early sexual harassment plaintiffs received when they sought to extend the reach of Title VII





25. Id. at 557. Interestingly enough, since Tomkins was decided, the number of federal district judges has increased to 645. See Statistical Report for Justices and Judges of the United States, Administrative Office of the United States Courts (Feb. 29, 1996) (on file with the Stanford Law Review). This increase is due, in large part, however, to the federalization of numerous drug crimes, not the proliferation of sexual harassment claims under Title VII. See David Masci, Crossing State Lines: CriminalLav and the FederalGovernment, 50 CONG. Q. WKLY REP. 3676, 3678 (1992) (following their federalization, "the number of federal drug prosecutions has ballooned by 280 percent since 1980," burdening a federal judiciary that, in the same time frame, has "increased by only 10 percent"). It is also worth noting that in all statistical probability, the number of sexual harassment cases filed represents a small percentage of the actual incidents of sexual harassment that take place in the wage-labor market everyday.

26. The notion that sexual harassment is a foreseeable consequence of sexually heterogeneous workplaces is reflected in the line of cases holding that emotional injuries sustained as a result of sexual harassment are exclusively compensable under workers' compensation laws, rather than sex discrimination statutes. See, e.g., Zabkowicz v. West Bend Co., 789 F.2d 540, 544 (7th Cir. 1986) (defining emotional injury sustained from sexual harassment as an "accident" subject to the state's Worker's Compensation law); Wangler v. Hawaii Elec. Co., 742 F. Supp. 1465, 1467-68 (D. Haw. 1990); Miller v. Lindenwood Female College, 616 F. Supp. 860, 861 (E.D. Mo. 1985) (finding emotional injury resulting from sexual harassment an "accident" compensable under state workers' compensation law);

Byers v. Labor and Indus. Review Comm'n, 547 N.W.2d 788, 790-91 (Vis. Ct. App. 1996), review granted,549 N.W.2d 732 (Vis. 1996). But see Jane Byeff Kom, The Fungible Woman and OtherMyths of Sexual Harassment, 67 TuL. L. REv. 1363, 1384-89 (1993) (arguing that allowing compensation under workers' compensation statutes misrepresents sexual harassment as a naturally occurring, inherent risk in the workplace); Ruth C. Vance, Workers' Compensation and Sexual Harassment in the Workplace: A Remedy for Employees, or a Shield for Employers?, 11 Hoi'sri. LAB. L.J. 141, 200 (1993) (arguing that the intentional nature of sexual harassment brings injury outside of workers' compensation laws, and that tort claims should be permitted instead).

27. Tomkins, 422 F. Supp. at 556; see also Miller v. Bank of Am., 418 F. Supp. 233, 236 (N.D.

Cal. 1976) ("It is conceivable, under plaintiff's theory, that flirtations of the smallest order would give rise to liability. The attraction of males to females and females to males is a natural sex phenomenon and it is probable that this attractions plays at least a subtle part in most personnel decisions."), rev'd and remanded,600 F.2d 211 (9th Cir. 1979). But see Garber v. Saxon Bus. Prod., Inc., 552 F.2d 1032 (4th Cir. 1977) (finding cause of action under Title VII when complaint alleges employer's acquiescence in practice of compelling female employees to submit to sexual advances of male supervisors); Williams v. Saxbe, 413 F. Supp. 654, 657-58 (D.D.C. 1976) (holding retaliatory actions taken by male supervisor after female employee refused his advances constitute sexual harassment under Title VII), rev'd and remanded on other grounds, 587 F.2d 1240 (D.C. Cir. 1978).

HeinOnline -- 49 Stan. L. Rev. 700 1996-1997

SEXUAL HARASSMENT

April 19971 to sexual harassment. 28 On one level, the early sexual harassment cases were about the interpretation of Title VII in light of preexisting agency principles. 29 On a deeper level, however, the cases both reified and legitimized a view of workplace sexual harassment that regards the plaintiffs' claims as private "gripes" rather than discriminatory "grievances," and regards the defendants' conduct as normal and healthy (maybe a little too healthy) manifestations of male sexuality that have simply gotten out of hand.

28. This view of workplace sexual harassment echos the judicial impulse to minimize and normalize certain kinds of rape. In People v. Gauntlett,a trial judge made the following remarks when sentencing a man who, by pleading guilty to the aggravated rape of his fourteen-year-old stepdaughter, had the

charges dropped in connection with his sexual assault of his twelve-year-old stepson:

On your behalf, there are many things that you are not. You are not a violent rapist who drags women and girls off the street and into the bushes or into your car from a parking lot; and I have had a lot of these in my courtroom.... You are not a child chaser, one whose obsession with sex causes him to seek neighborhood children or children in parks or in playgrounds, and we see these people in court. You are a man who has warm personal feelings for your stepchildren, but you let them get out of hand, and we see a number of people like you in our courts.

352 N.W.2d 310, 313 (Mich. Ct. App. 1984).

29. In order to find employer liability, Title VII jurisprudence has evolved from requiring proof of an official employer policy to a "knew or should have known" standard. In 1980 the EEOC issued

guidelines clarifying the appropriate standard of employer liability in sexual harassment cases:

Applying general mitle VII principles, an employer... is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.... With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.

29 C.F.R. §§ 1604.1l(c)-(d) (1980). For applications of these guidelines, see Hall v. Gus Constr.Co., 842 F.2d 1010, 1013-16 (8th Cir. 1988) (applying "knew or should have known" standard and finding employer liable where supervisor knew of abusive treatment of women by male coworkers); Yates v.

Avco Corp., 819 F.2d 630, 634-35 (6th Cir. 1987) (using EEOC guidelines to find that employer knew or should have known supervisor was sexually harassing women); and Henson v. City of Dundee, 682 F.2d 897, 903-05 (11 th Cir. 1982) (applying EEOC guidelines and finding employer was on notice about hostile work environment, and was therefore liable for sexual harassment).

In MeritorSavings Bank, FSB v. Vinson, the Supreme Court refrained from deciding whether or not to adopt the EEOC Guidelines on employer liability. 477 U.S. 57, 72 (1986). The four concurring justices in Meritor would have adopted the standard set forth by the EEOC. See id. at 75. Applying traditional agency principles, some courts have held that the law imposes strict liability for quid pro quo harassment undertaken by a supervisor or member of management. See, e.g., Carrero v. New York City Hous. Auth., 890 F.2d 569, 579 (2d Cir. 1989); Henson, 682 F.2d at 909-10.

30. This view of sexual harassment has been described as the "natural-biological" model of sexual harassment. Sandra S. Tangri, Martha R. Burt & Leonor B. Johnson, Sexual Harassment at WorkThree Explanatory Models, J. Soc. IssuEs, Fall 1982, at 33, 35-37 (proposing the natural/biological model as one of three explanatory models of sexual harassment). Elaborating on the model, Barbara

Gutek explained:

The natural-biological model assumes that sexual harassment and other forms of sexual expression at work are simply manifestations of natural attraction between two people. It is not sexist or discriminatory and does not have harmful consequences. Most of all, there is no intent to harass.... [O]ne version of this model suggests that because men have a stronger sex drive, they more often initiate sexual overtures, at work as well as in other settings.

BARBARA A. GTrrE,, SEX AND THE WORKPLACE: THE IMPACT OF SExuAL BEHAVIOR AND HARASSMENT

ON VOMEN, MEN, AND ORGANIZATIONS 13 (1985).



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