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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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Pullman-Standard, 539 F.2d 77, 89-90 (5th Cir. 1976) (discriminatory job assignments, even absent salary discrimination or economic harm); Steadman v. Hundley, 421 F. Supp. 53, 57 (N.D. IlL 1976) (supervisor's racial slurs and unfairly adverse recommendations may lead to Title VII violation); cf United States v. City of Buffalo, 457 F. Supp. 612, 631-35 (W.D.N.Y. 1978) (hostile work environment for racial minorities constituted a 42 U.S.C. § 1983 claim for people of color employed by city police and fire departments), affd as modified, 633 F.2d 643 (2d Cir. 1980); Murry v. American Standard, Inc., 373 F. Supp. 716, 717 (E.D. La. 1973) (black employee called "boy"), aff'd, 428 F.2d 529 (5th Cir.

1973); Johnson v. Lillie Rubin Affiliates, Inc., 5 Empl. Prac. Dec. (CCH) 8542, at 7558 (M.D. Tenn.

1973) (black women referred to by first names, while white women were called "Miss" or "Mrs.");

EEOC Dec. No. 72-1561, 4 Fair EmpI. Prac. Cas. (BNA) 852, 852 (May 12, 1972) (racially derogatory graffiti); EEOC Dec. No. 72-0957, 4 Fair Empl. Prac. Cas. (BNA) 837, 837-38 (Feb. 2, 1972) (racial joke using "nigger" in training program); EEOC Dec. No. 72-0779, 4 Fair Empl. Prac. Cas. (BNA) 317, 317-18 (Dec. 30, 1971) (black employee called "nigger"); EEOC Dec. No. 71-720, 3 Fair Empl. Prac.

Cas. (BNA) 142, 142 (Dec. 17, 1970) (black employee called "little black Sambo").

77. See, e.g., Compston v. Borden, Inc., 424 F. Supp. 157, 160-61 (S.D. Ohio 1976) (supervisor's demeaning religious slurs); Ratmer v. Trans World Airlines, N.Y. Comm'n on Human Rts., Decision No. 4135-J, Sept. 11, 1973 (antisemitic graffiti).

78. See Harassment on the Basis of Sex and Related Conduct Not Constituting Sexual Harassment, E.E.O.C. Comp. Man. (CCH) § 615.6, q 3105, at 3217 (Jan. 1982) ("Sexual harassment is one type of harassment based on sex. However, it is not the only type of unlawful harassment which is sexbased or which stems from sex discrimination. For proper processing and investigation of harassment charges, it is important to correctly distinguish sexual harassment from other forms of sex-based harassment and related conduct.").

79. EEOC Dec. No. 72-0679, 4 Fair Empl. Prac. Cas. (BNA) 441, 441-42 (Dec. 27, 1971).

80. See Lipsett v. University of P.R., 864 F.2d 881, 906 (1st Cir. 1988) (comments that women should not be surgeons).

81. Fox v. Southeast Transp., Inc., Nos. CIV.A. 89-1442-WF & CIV.A. 89-1449-WF, 1993 WL 543203, at 1'2 (D. Mass. Dec. 9, 1993), aft'd, 25 F.3d 1037 (1st Cir. 1994).

82. See Parton v. GTE North, Inc., 802 F. Supp. 241, 245-46 (W.D. Mo. 1991) (female employee asked repeatedly when she would quit and get married), aff'd, 971 F.2d 150 (8th Cir. 1992).

83. Fox, 1993 WL 543203, at *2.

84. See Parton, 802 F. Supp. at 247 (female employees issued yellow safety strap for climbing ladders that male employees not required to use).

85. Courts and theorists alike have drawn heavily from race discrimination jurisprudence in order to show that sexual harassment violates Title VII. However, while sexual harassment is similar to, it is not the same as, racial harassment. Many authorities might say that Title VII proscribes all, or virtually all, conduct of a racial nature in the workplace, but few would argue that Title VII renders actionable all sexual conduct in the workplace. Indeed, the EEOC has stated quite clearly that "Title VII does not HeinOnline -- 49 Stan. L. Rev. 709 1996-1997 [Vol. 49:691


the harassment either conveyed the harasser's subjective discriminatory mental state (e.g., women should stay home and have babies or are not fit for certain types of work), or took a form that could have been motivated by a number of reasons, including86sexist or misogynist attitudes (e.g., denying female workers adequate breaks).

In the first kind of cases, the discriminatory nature of the harassment was transparent from the substance of the harassing conduct-its sexism spoke for itself. These cases factually echoed early race-based harassment cases in which African Americans were harassed for being "uppity"87 or "trouble-makers." 88 In both contexts, the harassment was undertaken because women and/or people of color had violated gender and race norms. In the second kind of cases, however, further evidence was necessary to prove that the harassing conduct was undertaken "because of the target's sex." This additional evidence put the harassment in a context that revealed its discriminatory nature by showing that similarly situated male workers were not treated similarly. In either case, the underlying notion was that a person should not suffer harassment, sexual or otherwise, in the workplace because of his or her sex.

Based upon these precedents, feminists argued that Title VII's proscriptions against sex discrimination should be understood to prohibit not only sex harassment, but sexual harassment-that is, conduct of a sexual nature. 89 While it may seem self-evident today that one can legitimately infer discriminatory moproscribe all conduct of a sexual nature in the workplace. Thus it is crucial to clearly define sexual harassment.... EEOC: Policy Guidance on Sexual Harassment,8 Fair Empl. Prac. Man. (BNA) 9j405, at 6681 (Mar. 19, 1990).

86. See EEOC Dec. No. 71-2046, 1973 EEOC Dec. (CCH) q 6242, at 4428 (May 12, 1971) (female employees as a class placed in shifts that did not qualify for breaks).

87. See, e.g., Robertson v. Granite Sch. Dist., No. 90-4164, 1992 WL 2883, at *2 (10th Cir. Jan 7, 1992) (African-American male school coach terminated in part because he was "an uppity nigger");

Williams v. Cerberonics, 871 F.2d 452, 456 (4th Cir. 1989) (former African-American woman referred to as that "black uppity female"); Marable v. H. Walker & Assoc., 644 F.2d 390, 396 (5th Cir. Unit B 1981) (finding that a landlord refused to rent to African-American man because, inter alia, he was "uppity"); EEOC Dec. No. 70-198, 1973 EEOC Dec. (CCH) 6087, at 4133 (OcL 9, 1969) (black employee discharged because his self-confident manner caused resentment among white employees).

88. See, e.g., Daugherty v. City of Danville, No. 87-5850, 1988 VL 90892, at *4 (6th Cir. Sept. 1, 1988) (former African-American police officer alleged chief of police said he wanted to weed out "nigger troublemakers"); Thomas v. Daniel Parker, CIV.A. No. 76-1852, 1979 WL 149, at *7 (D.D.C. Feb.

8, 1979) (black Foreign Service officer denied tenure because he was "greatly concerned with minority rights" which made him a "trouble-maker."); EEOC Dec. No. 71-1677, 3 Fair Empl. Prac. Cas. (BNA) 1242, 1243 (Apr. 12, 1971) (black female employee called "trouble-maker").

89. In 1993 the EEOC issued proposed guidelines that provided standards by which to evaluate all kinds of harassment whether based on race, color, religion, disability, national origin, or gender. Guidelines on Harassment Based on Race, Color, Religion, Gender, National Origin, Age, or Disability, 58 Fed. Reg. 51,266-69 (1993) (to be codified at 29 C.F.R. pt. 1609) (proposed Oct. 1, 1993). The proposed guidelines emphasized that they "cover[ed] sex-based harassment that is non-sexual in nature" because "[s]exual harassment is covered by the Commission's Guidelines on Discrimination Because of Sex." la- 51,268 n.l. A year later however, responding to political pressure, the EEOC withdrew the at proposed guidelines. See Withdrawal of the Proposed Guidelines, 59 Fed. Reg. 51,396 (1994); see also Sarah E. Bums, Evidence of A Sexually Hostile Workplace: What Is It and How Should It Be Assessed After Harris v. Forklift Systems, Inc.?, 21 N.Y.U. REv. L. & Soc. CHANGE 357, 401 n.310 (1994-95) (noting that political pressure from "conservative Christian groups" lead to the EEOC's "reopening of the issue"). As a result, the only EEOC guidelines addressing the problem of sex-based harassment in the workplace concern workplace sexual harassment. See Guidelines on Discrimination Because of Sex, Sexual Harassment, 29 C.F.R. § 1604.11(a)-(g) (1996).

HeinOnline -- 49 Stan. L. Rev. 710 1996-1997


April 1997] fives when a man engages in unwelcome conduct of a sexual nature toward a woman, why is this so? In the individual case of hostile environment sexual harassment, why should we conclude that sex discrimination has occurred, rather than wholly inappropriate workplace sexual misconduct actionable under appropriate state tort or contract laws? Is sexual harassment transparently sexist, thereby amounting to a kind of per se violation of Title VII? Does it violate Title VII because it targets female and not male employees? Or does it inflict a kind of harm that is discriminatory in its impact on women workers? To pose these sorts of questions is to examine the significance of the sexually explicit content of sexual harassment: Is sexual harassment more like telling women they should stay home and have babies or more like disabling their safety equipment? Or is it neither? The answers to these questions have serious implications for the scope and meaning of "discrimination because of sex," gender-role stereotyping, and ultimately, male and female agency.

In Bundy v. Jackson,90 the D.C. Circuit Court of Appeals accepted the paradigm shift urged by MacKinnon and other feminists with respect to the sexually discriminatory nature of sexually hostile work environments. In Bundy, a female employee alleged that her immediate male supervisor had propositioned her numerous times and had frequently engaged in offensive sexual conversations with her. To make matters worse, when she reported the incidents to her supervisor's male superior, he asked her to go to a motel to have sex with him, and remarked that "any man in his right mind would want to rape you." 9 1 Relying on their 1977 decision in Barnes v. Costle,92 the D.C. Circuit held that this conduct amounted to discrimination because of Sandra Bundy's sex. The Bundy court noted that "the question is one of but-for causation: Would the complaining employee have suffered the harassment had he or she been of a different gender?" 93 Noting that Barnes acknowledged the problem of quid pro quo harassment, the Bundy court extended the Barnes holding to instances of hostile environment, or "condition of employment" harassment. In so doing, the Bundy court relied heavily upon both the Rogers v. EEOC theory of racial harassment 94 and Catharine MacKinnon's then-new book on sexual harassment.

The "hostile environment" interpretation of Title VII, which began with Bundy in 1981, culminated in the Supreme Court's statement in Meritor Savings Bank, FSB v. Vinson 96 that discriminatory employment practices reached not only a "tangible loss" of "an economic character" because of a person's seX, 97 but that "a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive environment. 9 8

90. 641 F.2d 934 (D.C. Cir. 1981).

91. Id at 940.

92. 561 F.2d 983 (D.C. Cir. 1977) 93. 641 F.2d at 942 n.7.

94. See id. at 944-45.

95. See id. at 945-46.

96. 477 U.S. 57 (1986).

97. Id at 64.

98. Id at 66.

HeinOnline -- 49 Stan. L. Rev. 711 1996-1997 [Vol. 49:691


While the Supreme Court provided no reasoning to support this conclusion, many courts have since adopted the D.C. Circuit's approach, determining that a person has been discriminated against on the basis of her sex if she has been subjected to sexual overtures, conduct, or behavior from a supervisor that would not have been forthcoming "butfor" her sex, meaning biological sex. 99 Such was the Supreme Court's construction of the wrong of sex discrimination in City of Los Angeles Department of Water & Power v. Manhart.0 0 There, the Court held that the department's policy which required female employees to make larger contributions to the pension fund than male employees amounted to sex discrimination because "[s]uch a practice does not pass the simple test of whether the evidence shows 'treatment of a person in a manner which but for that person's sex would be different.'"101 Construed according to formal equality principles, the wrong of sex discrimination amounts to the dissimilar treatment of otherwise similarly situated workers. Thus, where women are treated differently than men in the workplace, they are being discriminated against because of their sex: "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." 10 2 This oft-cited language mirrors the EEOC's interpretation of the meaning of sexual harassment,' 03 and is repeated time and again in EEOC briefs.

99. See, e.g., Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988) (holding that "the district court correctly considered incidents of harassment and unequal treatment that would not have occurred but for the fact that [plaintiffs] were women"); Rabidue v. Osceola Ref. Co., 805 F.2d 611,620 (6th Cir. 1986) (noting that "a plaintiff must demonstrate that she would not have been the object of harassment but for her sex"); Jones v. Flagship Int'l., 793 F.2d 714, 719 (5th Cir. 1986) (listing the "but for" requirement as one of five factors which must be satisfied in order to establish a hostile work environment claim); Henson v. City of Dundee, 682 F.2d 897,904 (11th Cir. 1982) ("In proving a claim for a hostile work environment due to sexual harassment, therefore, the plaintiff must show that but for the fact of her sex, she would not have been the object of harassment."); Tomkins v. Public Serv. Elec.

is only necessary to show that & Gas Co., 568 F.2d 1044, 1047 n.4 (3d Cir. 1977) (noting that "[ilt gender is a substantial factor in the discrimination, and that if the plaintiff 'had been a man she would not have been treated in the same manner"') (quoting Skelton v. Blazano, 424 F. Supp. 1231, 1235 (D.D.C. 1976)). See also Developments in the Law-Employment Discriminationand Title VII of the Civil Rights Act of 1964, 84 HARv.L. REv. 1109, 1170 (1971) [hereinafter Developments in the Law] (reporting that "treatment of a person in a manner which but for that person's sex would be different is a prima facie unlawful employment practice as defined in section 703(a) [of Title VII]").

100. 435 U.S. 702 (1978).

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