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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 dominant guiding principle in antidiscrimination jurisprudence is that of formal equality. It protects the meritocratic ideal-that social status should be based upon individual merit, abilities, and achievements, rather than on characteristics such as race, sex, family background, wealth, or graft. As such, the merit principle aspires to be fundamentally color and sex-blind. 55 Discrimination, therefore, "is irrational and unjust because it denies the individual what is due him or her under society's agreed upon standards of merit." 56 DisregardIn her early work, Catharine MacKinnon called it the "inequality approach," targeting "[p]ractices which express and reinforce the social inequality of women to men." MACKiNNON, supra note 23, at 174. In her later work and in the writing of Ruth Colker, however, it is described as the "antisubordination" principle. See generally CATHA iNE A. MACKiNNON, FNmms M UNMODuID (1987); Ruth Colker, Anti-Subordination Above All: Sex. Race, and Equal Protection, 61 N.Y.U. L.

Rv. 1003 (1986) (describing the anti-subordination principle and arguing that this approach should inform courts' analysis of equal protection cases).

54. See Colker, supranote 53, at 1012 (arguing that "the anti-subordination perspective is consistent with the history of the equal protection clause") (footnote omitted).

55. See ANDREw Kuu., THE COLOR-BLIND CONsTrTrTON (1992) (tracing the history of the legal argument for, and conception of, a color-blind Constitution as a normative ideal). But see Neil Gotanda, A Critique of "Our Constitutionis Color-Blind," 44 STAN. L. Rv. 1, 18 (1991) (arguing that "consideration of race does not automatically corrupt a fair social decisionmaking process" and that "[o]ne cannot literally follow a color-blind standard of conduct in ordinary social life").

56. Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DtnE U. 705, 710; see also Daniel A. Farber & Suzanna Sherry, Is the Radical Critique of Merit AntiSemitic?, 83 CAL. L. REv. 853, 858-69 (1995) (reviewing various critiques of the meritocratic ideal).

HeinOnline -- 49 Stan. L. Rev. 705 1996-1997 [V/ol. 49:691

STANFORD LAW REVIEW

ing racial or sexual differences protects human dignity and equality, 57 and guarantees meritocratic decisionmaking, free from the distorting effects of racial and sexual stereotypes.

Title VII's prohibition of discrimination against "any individual... because of such individual's race, color, religion, sex, or national origin," 59 embodies this notion of equality. By targeting discrimination, or different treatment, because of membership in a protected class, Title VII aims to identify and then remedy those employment practices that illegitimately take into account race, color, religion, national origin, or sex. The oft-cited directive that "similarly situated" persons should be treated similarly 60 can thus be understood to mean that similarly meritorious persons should be treated similarly.

How has sexual harassment come to fit within the paradigm that condemns practices that treat similarly situated persons dissimilarly because of their sex?

In Sexual Harassment of Working Women, Catharine MacKinnon argued that sexual harassment is sex discrimination because it causes arbitrary differentiation between men and women in the workplace, such that "men are not placed in comparable positions to women when they are comparably circumstanced." 62 In short, "[s]exual harassment limits women in a way men are not limited. It deprives them of opportunities that are available to male employees without sexual conditions."'63 So understood, it amounts to disparate treatment of women based on their biological sex,64 and thus violates the equality principle and meritocratic ideal that underlie Title VII.

To show that sexual harassment was sex discrimination according to the equality principle, MacKinnon and other feminist advocates began with the relSee, e.g., Hortense J. Spillers, Martin Luther King and the Style of the Black Sermon, in 3 MARTIN LUTHER KING JR.: CIVIL RIGHTS LEADER, THEOLOGIAN, ORATOR 876, 888 (David J. Garrow ed., 1989) (citing Dr. Martin Luther King, Jr., Speech, I Have a Dream (Aug. 28, 1963)) ("I have a dream today that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.").

58. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST 153 (1980) ("[Plrejudice is a lens that distorts reality.").

59. 42 U.S.C. § 2000e-2(a)(1) (1994).

60. See, e.g., Brown v. Board of Educ., 347 U.S. 483, 494 n.10 (1953) ("State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.") (quoting Belton v. Gebhart, 87 A.2d 862, 865 (Del. Ch. 1952)); see also Califano v. Webster, 430 U.S. 313, 314 (1977); Weinberger v. Weisenfeld, 420 U.S. 636, 645 (1975); Schlesinger v. Ballard, 419 U.S. 498, 506-07 (1975); Frontiero v. Richardson, 411 U.S. 677, 680-81 (1973); Eisenstadt v. Baird, 405 U.S. 438, 454-55 (1972); Reed v. Reed, 404 U.S. 71, 76 (1971); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

61. For an excellent summary and critique of the equality principle, see Mary E. Becker, Prince Charming:





Abstract

Equality, 1987 St. CT. REv. 201.

62. MAcKNoN, supra note 23, at 216.

63. Id. at 193.

64. See id. at 40 ("Unwanted sexual advances, made simply because she has a woman's body, can be a daily part of a woman's work life.").

65. See id. at 195 ("Sexual harassment, in most cases, is an employment practice that would not have occurred if the victim's sex had been different.") In answer to the question of why sexual harassment is sex discrimination, MacKinnon argues that "[t]he basic question the differences approach poses is: how can you tell that this happened because one is a woman, rather than to a person who just happens to be a woman? The basic answer, which presupposes sex comparability, is: a man in her position would not be or was not so treated." Id. at 192.

HeinOnline -- 49 Stan. L. Rev. 706 1996-1997

SEXUAL HARASSMENT

April 1997] atively small body of Title VII sex and race discrimination cases decided in the mid to late 1970s. The case for finding quid pro quo harassment a violation of Title VII was the easiest to make. In 1977, the D.C. Circuit first recognized the conditioning of employment-related economic benefits on sexual favors as sex discrimination. 66 In Barnes v. Costle the plaintiff alleged that her job had been eliminated by her male supervisor because she refused his sexual advances;

advances that would not have been tendered had Barnes been a man. 67 The trial court granted the defendant's motion for summary judgment on the all too familiar theory that [t]he substance of (appellant's) complaint is that she was discriminated against, not because she was a woman, but because she refused to engage in a sexual affair with her supervisor. This is a controversy underpinned by the subtleties of an inharmonious personal relationship. Regardless of how inexcusable the conduct of (appellant's) supervisor might have been, it does not evidence an arbitrary barrier to continued employment based on (appellant's) sex.

The Court of Appeals reversed, however, holding:

But for her womanhood, from aught that appears, her participation in sexual activity would never have been solicited. To say, then, that she was victimized in her employment simply because she declined the invitation is to ignore the asserted fact that she was invited only because she was a woman subordinate to the inviter in the hierarchy of agency personnel.

In a footnote, the court further clarified that this principle would apply with equal force to a heterosexual woman who sexually harasses a man or a homosexual supervisor who harasses another person of the same sex: "[Iun each instance, the legal problem would be identical to that confronting us now-the exaction of a condition which, but for his or her sex, the employee would not '70 have faced."

The courts were more reluctant to recognize the hostile environment theory of sexual harassment. Again, looking to existing sex and race discrimination jurisprudence, advocates argued that sexual harassment should be prohibited under Title VII. Title VII's antidiscrimination prohibitions applied not only to actions of an economic nature, such as hiring, firing, or promotions, but also to the noneconomic "terms, conditions, or privileges of employment." 7 1 Early "terms and conditions" cases established, on a case by case basis, that Title VII prohibited a range of practices that granted women lesser workplace privileges than men. 72 Ultimately, these practices were found to violate Title VII because

66. See Barnes v. Costle, 561 F.2d 983, 990 (D.C. Cir. 1977).

67. See id. at 985.

68. Id at 986 (quoting Barnes v. Train, Civ. No. 1828-73, slip. op. at 3 (D.D.C. Aug. 9, 1994)).

69. Id. at 990 (footnotes omitted).

70. Id. at 990 n.55 (emphasis added).

71. 42 U.S.C. § 20oOe-2(a)(1) (1994).

72. See, e.g., Harrington v. Vandalia-Butler Bd. of Educ., 585 F.2d 192, 194 n.3 (6th Cir. 1978) (giving female physical education teachers inferior locker and shower facilities); Trivett v. Tri-State Container Corp., 7 Fair Emp. Prac. Cas. (BNA) 1292, 1296 (E.D. Tenn. 1973) (requiring female employees to remain at their posts while allowving male employees to line up and clock out first); Laffey v.

Northwest Airlines, Inc., 6 Fair Empl. Prac. Cas. (BNA) 902, 910-912 (D.D.C. 1973) (imposing height and weight requirements for female but not male employees, forbidding female but not male employees HeinOnline -- 49 Stan. L. Rev. 707 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 Congress intended that the 7 3 "strike at the entire spectrum of disparate treatlaw ment of men and women."

Having established that Title VII did not necessarily require a showing of an economic injury, feminist advocates next argued that the "terms and conditions" cases should be extended to include not only those policies that provided men and women with different amenities or imposed different sex-based rules, but to harassing conduct that altered the terms and conditions of employment as well.

The idea that Title VII prohibited harassment in the workplace first arose in national origin and race cases. In Rogers v. EEOC,74 an Hispanic plaintiff challenged the offensive work environment created by her employer, an optometrist

who operated his practice in a discriminatory manner by "segregating" his Hispanic and Anglo patients. The Fifth Circuit held:

the phrase "terms, conditions or privileges of employment" in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.... One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.... 75 from wearing eyeglasses, and imposing a no-marriage rule on female but not male employees); Richards v. Griffith Rubber Mills, 300 F. Supp. 338, 339-40 (D. Or. 1969) (requiring mandatory rest periods for female workers only, thereby eliminating females from consideration for certain positions); EEOC Dec.

No. 71-109, 1973 EEOC Dec. (CCH) 6165, at 4277-78 (July 29, 1970) (affording men, but not women, the right to smoke while they worked); EEOC Dec. No. 70-503, 1973 EEOC Dec. (CCH) T 6114, at 4207-08 (Feb. 4, 1970) (paying death benefits to surviving spouses of male employees, but not female employees); Nabisco Settles Restroom-Break Suit, 1996 Daily Lab. Rpt. (BNA) 77 (April 22, 1996) (discussing Herandez v. Nabisco, Co., No. CV 153713 (Cal. Sup. Ct. Apr. 17, 1996)) (women allowed to use the restroom only during breaks, whereas men allowed to do so anytime they wanted).

73. Sprogis v. United Airlines, Inc., 444 F.2d 1194, 1198 (7th Cir. 197 1). This language was cited approvingly by the Supreme Court in MeritorSay. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) and Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978). See also Nadine Taub, Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment Discrimination,21 B.C.

345, 349 (1980) (charging that "stereotypical role expectations" have hampered the effectiveL. Rv.

ness of Title VII in combating workplace discrimination directed against women, and arguing that they be recognized as "discrimination per se").

74. 454 F.2d 234 (5th Cir. 1971).

75. Id at 238.

HeinOnline -- 49 Stan. L. Rev. 708 1996-1997

SEXUAL HARASSMENT

April 1997] The Rogers conception of national origin based discriminatory workplace "pollution" was later extended to workplace harassment based upon race, 76 and religion.

In time, courts further interpreted Title VII to prohibit sex-based harassment. Note that sex-based harassment is not the same thing as sexual harassment.78 Sex-based harassment occurs when a person is harassed in the workplace because of her or his sex through the use of nonsexual conduct.

Examples of nonsexual, sex-based conduct include calling male employees "men" but female employees "girls," 79 indicating that women shouldn't perform certain kinds of work, 80 that a "woman's place [is] in the bedroom or the kitchen," 8 that hiring women was undesirable because they would quit and get ' married,8 2 "that they were taking jobs from men with families,"8 3 or by issuing different work equipment to women.84 These early sex-based harassment

cases, like the race-based harassment cases,8 5 took one of two principle forms:

76. See e.g., Firefighters Inst. for Racial Equal. v. St. Louis, 549 F.2d 506, 514-15 (8th Cir. 1977) (employer's informal acceptance of segregated employee eating clubs); Gray v. Greyhound Lines, East, 545 F.2d 169, 176 (D.C. Cir. 1976) (unfair disciplinary and route assignment procedures); Swint v.



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