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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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HeinOnline -- 49 Stan. L. Rev. 701 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 B. Sexual Harassment as Sex Discrimination The fact that sexual harassment is a sexually discriminatory wrong is not a legal conclusion necessarily revealed in the text of Title VII. Rather it requires an argument. Nothing in either the text or the legislative history of Title VII would expressly compel one to conclude that "discrimination based on sex" reaches sexual harassment. However, rather than conceptualize sexual harassment as an independent wrong, say, of sexual misconduct, feminist advocates and theorists argued that the conduct is a species of sex discrimination, because "only the sex discrimination laws provide a coherent examination of sexually '31 harassing conduct as a legal wrong."

Many feminists take pride in the fact that the law of sexual harassment represents "the first time in history...that women have defined women's injuries in a law."'32 Indeed, some maintain that "[s]exual harassment is the quintessential feminist harm," 33 and that "[tihe very existence of such a cause of action is a triumph for feminist scholars and practitioners, as well as for the victims of sexual harassment."

In response to the ways in which the judiciary privatized, decontextualized, and normalized the sexual harassment of women in the workplace, in the 1970s the Working Women's Institute,3 5 and feminists such as Caroll Brodsky, 36 Lin

31. Sarah E. Bums, Issues in Workplace Sexual Harassment Law and Related Social Science Research, J. Soc. IssuEs, Spring 1995, at 193 (citation omitted).

32. CATHARINE A. MACKINNON, Sexual Harassment:Its FirstDecade in Court, in FEtnIsM UNMODIFED: DiscouRsEs ON LIFe AND LAW 105 (1987); see also Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MicH. L. Rev. 1, 6 (1991) (arguing that feminists must name and explain "separation assault' so that "we can develop legal rules to deal with this particular sort of violence") (footnotes omitted); Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U. L. Ray. 589, 642-43 (1986) (noting that "[tihe experience of what is now called sexual harassment did not even have a name until feminist thinkers provided it with one") (footnote omitted).

The civil rights remedy of the Gender-Motivated Violence Act, 42 U.S.C. § 13981 (1994), contained in the Violence Against Women Act ("VAWA"), id §§ 13931-14040, represents the result of a similar political process by which feminists sought to give voice to women's experience of violence, name it "gender-motivated violence," and then organize to pass a law that specifically addressed that experience. The fact that other laws might have provided a remedy for domestic violence or other forms of gender-motivated violence prior to the enactment of the VAWA, is, in some part, besides the point

since one of the purposes of the VAWA is the political objective of calling this behavior what it is:

sexist violence. Of course, many of the provisions of the VAWA are designed to bridge gaps in state and federal statutory and common law that prevented women from recovering for injuries caused by various forms of gender-motivated battery, such as marital rape exemptions and interspousal immunities. See Julie Goldscheid & Susan Kraham, The Civil Rights Remedy of the Violence Against Women Act, 29 CLEAMINGHOUSE Rv.505, 506-08 (1995) (discussing the inadequacies of federal civil rights laws and state civil and criminal statutes that VAWA is intended to address).

33. Martha Chamallas, Writing About Sexual Harassment:A Guide to the Literature,4 UCLA WoMEN's L.J. 37, 38 (1993) [hereinafter Chamallas, Writing About Sexual Harassment]. Elsewhere Chamallas has written that the "claim of sexual harassment is also a grassroots claim in that it was discovered by asking employed women what practices they regarded as discriminatory, as unfair, or as

posing a barrier to their success at work." Martha Chamallas, Feminist Constructions of Objectivity:

Multiple Perspectivesin Sexual and Racial Harassment Litigation, 1 TFx. J. WoMEN & L. 95, 96-97 (1992) [hereinafter Chamallas, Feminist Constructionsof Objectivity].

34. Susan Estrich, Sex at Work, 43 STAN. L. REv. 813, 816 (1991).

35. Peggy Crull, The Impact of Sexual Harassmenton the Job: A Profile of the Experiences of 92 Women, WOKNo/WVoamN'S INsT. 7 n.3 (Working/Women's Institute Research Series Report No. 3, Fall 1979) (defining sexual harassment as "any repeated and/or unwanted sexual attention, jokes, innuHeinOnline -- 49 Stan. L. Rev. 702 1996-1997

SEXUAL HARASSMENT

Axpril 1997] Farley, 37 Rosabeth Kanter, 38 and Catharine MacKinnon 39 suggested ways to understand sexual harassment as more than harmless conduct. MacKinnon

asked:

[w]hether sexuality is, in itself, a source, form, and sphere of social inequality or whether it is merely a sphere onto which other forms of unequal power-for example, physical force or economic clout-are displaced and imposed, a ground on which other battles (including those of gender) are fought. Behind the doctrinal arguments, conceiving of sexual harassment as unequal treatment based on sex raises fundamental questions of the definitions of, and the relations between, gender, sexuality, and power.





Having framed the problem of sexual harassment as a problem of sex-based power, MacKinnon suggested that sexually harassing conduct takes two principle forms: quid pro quo and condition of work harassment. 4 1 She defined quid pro quo harassment as conduct by which "sexual compliance is exchanged, or proposed to be exchanged, for an employment opportunity." 4 2 The EEOC later promulgated regulations embodying this conception of quid pro quo sexual harassment as a violation of Title VII.43 Condition of work harassment, later termed harassment that creates a sexually hostile work environment, MacKinnon defined as "the situation in which sexual harassment simply makes the work environment unbearable." 44 The 1980 EEOC regulations also included this kind of sexual harassment as a form of sex discrimination.

endoes, touching, or propositions from someone in the workplace that make you uncomfortable and/or cause you problems on your job"); Sexual Harassment on the Job: Results of Preliminary Survey, WoRmG,/WomN UNr= INsT. (Working/Women United Inst., New York, N.Y.), 1975 (presenting the first statistics ever gathered about sexual harassment on the job).

36. CARROLL M. BRODSKY, THE HARASSED WORKER (1976) (arguing that all forms of harassment are informal mechanisms by which harassers attempt to maintain their competitive advantage in the workplace).

FARLEY, SEXUAL SHAKEDOWN: TrE SEXUAL HARASSMEr OF WoMEN ON THE JOB (1978)

37. LTN (offering a Marxist-feminist critique of sexual harassment as a tool by which men control women's participation in the labor market).

38. RosABrH Moss KANrR, MEN AND WOMEN OF a COR'ORATION (1977) (observing that men tend to underscore gender differences in order to reinforce their dominant status in corporate culture).

39. MAcKINNoN, supra note 23.

40. Id. at 59.

41. See id. at 32.

42. Id. MacKinnon provided the following examples of quid pro quo harassment: "'If I wasn't going to sleep with him, I wasn't going to get my promotion;' 'I think he meant that I had a job if I played along;' 'You've got to make love to get a day off or to get a good beat;' '[Her] foreman told her that if she wanted the job she would have to be 'nice';' and 'I was fired because I refused to give at the office."' l (citations omitted).

43. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual....

29 C.F.R. § 1604.11 (a).

44. MACKmNNON, supra note 23, at 40.

45. "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when... (3) such conduct has the purpose or effect of HeinOnline -- 49 Stan. L. Rev. 703 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 Seven years after MacKinnon made the argument for understanding sexual harassment as a form of sex discrimination in her book Sexual Harassment of Working Women: A Case of Sex Discrimination,the Supreme Court adopted much of her perspective in Meritor Savings Bank v. Vinson.46 Treating the legal conclusion as entirely self-evident, 47 Justice Rehnquist declared, on behalf of a unanimous Court, that "[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex."'48 The Court then went on to embrace the notion that sexual harassment took two forms: that of an economic quid pro quo and that which creates a hostile environment.

A unanimous Supreme Court endorsement of what was unthinkable to lower courts such a short time before signaled a remarkable transformation in the legal and cultural understanding of the workplace harassment which many women endured. Feminist theorists instigated this paradigm shift by formulating three ways to consider how a particular pattern, practice, or instance of sexual harassment might constitute sex discrimination: (1) the equality principle: the conduct would not have been undertaken but for the plaintiffs sex; (2) the anti-sex principle: the conduct was discriminatory precisely because it was sexual; and (3) the anti-subordination principle: the conduct subordinated women to men.

The equality principle50 sets forth that similarly situated persons or groups of persons should be treated similarly. Borrowing arguments from race-based discrimination cases, advocates have used the equality principle as the dominant analytical tool to dismantle sexism in the workplace. 5 1 The EEOC's current position on sexual harassment relies heavily upon this account of the

nature of discrimination:

[In sexual harassment cases as in all other sex discrimination cases, the relevant question is whether the plaintiff was treated differently because of his or her sex.... When a plaintiff can demonstrate that he or she would not have been sexually harassed but for his or her sex, that plaintiff states a claim for sex discrimination under Title VII.

unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 29 C.F.R. § 1604.11(a).

46. 477 U.S. 57 (1986).

47. This conclusory assumption has been noted by the lower courts. See, e.g., Martin v. Norfolk S. Ry. Co., 926 F. Supp. 1044, 1048 (N.D. Ala. 1996) ("[N]either Harris nor Meritordiscussed in any significant detail the doctrinal basis for classifying sexual harassment as sex discrimination.").

48. Meritor, 477 U.S. at 64.

49. See iL at 65.

50. MacKinnon called it the "differences approach." See MAcKmNoN, supra note 23, at 192-208.

51. See, e.g., Kathryn Abrams, Gender Discriminationand the Transformation of Workplace Norms, 42 VAND.L. REv.1183, 1190-92 (1989) (reviewing advocates' use of the "equality principle" as the primary analytic tool challenging inequality in the workplace, and concluding it has proven inadequate to the task); Ruth Bader Ginsburg, Gender and the Constitution, 44 U. CiN. L. R v. 1, 16-23 (1975) (reviewing the equal protection arguments employed by feminist advocates in gender discrimination cases in the early 1970s).

52. Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Opposition to Defendants' Motion for Summary Judgment at 5-6, Waag v. Thomas Pontiac, Buick, GMC, Inc., 1996 WL 179860 (D. Minn. 1996) (No. 3-95-538).

HeinOnline -- 49 Stan. L. Rev. 704 1996-1997

SEXUAL HARASSMENT

April 1997] Alternatively, the argument has been made that sexual harassment presents a unique form of sex discrimination: it is sex discrimination because it is sexual. This argument ultimately conflates sex and sexism.

Finally, the anti-subordination principle,5 3 developed by feminist legal theorists, advances another, some might say more radical, analysis of the wrong of sex discrimination. This principle challenges and affirmatively remedies any policy, practice, or attitude that contributes to or perpetuates in intent or effect the subordination of an historically dominated group.5 4 Sexual harassment is a violation of the anti-subordination principle primarily because it replicates the subordination of women by men.

Although each of these ways of understanding sexual harassment as a kind of sex discrimination originates in feminist theory, each approach has become ingrained in the jurisprudence of sexual equality. As courts in the last twenty years have become more comfortable with sexual harassment cases, they have, in effect, adopted these theories on sexual harassment and made them their own. As a result, the theories have evolved and departed in some important respects from initial feminist conceptions of the wrong of sexual harassment.

In the sections that follow, I discuss each of the three predominant ways in which feminists have urged, and courts have found, that sexual harassment is a form of sex discrimination. Each account reflects a different understanding of sexual harassment, due, in large part, to different underlying assumptions about the meaning and scope of sexual equality.

1. Sexual harassment is sex discriminationbecause it violates formal equality principles.



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