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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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101. Id. at 711 (quoting Developments in the Law, supra note 99, at 1170); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 262 (1989) (O'Connor, J., concurring) ("[A] substantive violation of [Title VII] only occurs when consideration of an illegitimate criterion is the 'but-for' cause of an adverse employment action."). The "but for" analysis has also been relied upon in race cases. See, e.g., Hunter v. Underwood, 471 U.S. 222 (1985) (applying "but for" analysis to race discrimination in voting rights); Paul Brest, The Supreme Court, 1975 Term-Forward: In Defense of the Antidiscrimination Principle,90 HARv.L. REv. 1, 6 (1976) ("Mhe anti-discrimination principle disfavors race-dependent decisions and conduct.... would have been different but for the race of those benefited or disadthat vantaged by them.").

102. Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring).

103. See EEOC Compl. Man. (BNA) 615.2(b)(3) (1982).

104. See, e.g., Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Opposition to Defendants' Motion for Summary Judgment at 6-7, Waag v. Thomas Pontiac, Buick, GMC, Inc., 1996 WL 179860 (D. Minn. 1996) (No. 3-95-538).

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April 1997] Given the natural inclination to turn to something familiar when in foreign or uncomfortable territory, overwhelmingly courts have used a "but for" test to determine whether complaints of same-sex sexual harassment rise to the level of discrimination because of sex. In Wright v. Methodist Youth Services Inc., 10 5 the first reported same-sex sexual harassment case, a male plaintiff alleged that his immediate supervisor had made, in the words of the court, "homosexual advances" 10 6 toward him. Noting that there was no precedent for such a claim, the court looked to more traditional quid pro quo sexual harassment cases. "Those holdings are predicated on the notion that making a demand of a female employee that would not be made of a male employee involves sex discrimination." 10 7 Because Wright's supervisor made a sexual demand of a male employee that would not have been directed at a female employee, the court concluded that the conduct amounted to discrimination based upon sex.' 08 More recently, in EEOC v. Walden Book Co., 10 9 the first same-sex sexual harassment case to go to a jury, a male employee of defendant Waldenbooks alleged that his supervisor, a gay man, had harassed him by making offensive sexual advances toward him. Ruling on the defendant's motion for a judgment on the pleadings, the court began by noting that "[t]o prevail in a sexual harassment case, a plaintiff must show that but for the plaintiff's sex, the plaintiff would not have been the object of harassment."' " 0 Applying the "but for" test

to the facts at hand, the court held:

When a homosexual supervisor is making offensive sexual advances to a subordinate of the same sex, and not doing so to employees of the opposite sex, it absolutely is a situation where, but for the subordinate's sex, he would not be subjected to that treatment. Thus, this Court finds that same-sex sexual harassment is actionable under Title VII. I The inclination to reduce the "because of sex" element of a sexual harassment prima facie case to "but for" causation is particularly appealing in cases like Wright and Walden Book Co., where the harasser is either proven to be or believed to be gay. In fact, in most of the same-sex sexual harassment cases involving a gay harasser, whether quid pro quo or hostile environment cases,

courts have held that the conduct violated Title VII because the harasser's sexual orientation provided conclusive evidence of "but for" causation:

If a plaintiff complains of unwelcome homosexual advances, the offending conduct is based on the employer's sexual preference and necessarily involved the plaintiff's gender, for an employee of the non-preferred gender would not

105. 511 F. Supp. 307 (N.D. Ill.


106. Id. at 308.

107. Id. at 310.

108. See id.

109. 885 F. Supp. 1100 (M.D. Tenn. 1995).

110. Id. at I100.

111. Id. at 1103-04. A little more than a month after the judge denied the defendant's motion for a judgment on the pleadings, the case went to trial and a jury awarded the plaintiff $1.6 million in punitive damages and $75,000 in compensatory damages. Harassment Victim Awarded $1.6 Million, 1995 Daily Lab. Rpt. (BNA) 98 (May 22, 1995).

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2. Sexual harassmentis sex discriminationbecause it is sexual.

The doctrine of formal equality has led many theorists to make the argument that sexual harassment violates the principle "that people who are the

same should be treated the same."' 1 3 Others have made a different argument:

Sexual harassment violates Title VII because it is sexual.

Susan Estrich, who has written extensively on the social meaning and legal treatment of rape, 1 4 has approached the problem of sexual harassment by addressing the issue of "where and how 'sexuality' fits into sexual harassment." 1 15 According to Estrich, the "but for" formula of sex discrimination "ignores the 'sexual' aspect of sexual harassment and the unique meaning of such harassment in a male-female context.... What makes sexual harassment more offensive, more debilitating, and more dehumanizing to its victims than other forms of discrimination is precisely the fact that it is sexual."' "16 Greatly

facilitating this interpretation of Title VII is a nominal complexity in the wording of the statute that appears, at first blush, to be "merely" linguistic:

In the English language, the word "sex" has two very different meanings. It means gender and gender identity, as in "the female sex" or "the male sex."

But sex also refers to sexual activity, lust, intercourse, and arousal, as in "to have sex." This semantic merging reflects a cultural assumption that sexuality is reducible to sexual intercourse and that it is a function of the relations between women and men. This cultural fusion of gender with sexuality has given

112. Parrish v. Washington Nat'l Ins. Co., No. 89-C4515, 1990 U.S. Dist. LEXIS 13934, at *9 n.2 (N.D. 11. Oct. 19, 1990); see also Ecldund v. Fuisz Tech., Ltd., 905 F. Supp. 335, 339 (E.D. Va. 1995) (holding that plaintiff must show that, "but for" her sex, plaintiff would not have been subject to harassment in order to maintain sexual harassment claim); Raney v. District of Columbia, 892 F. Supp. 283, 288 (D.D.C. 1995) (approving "but for" analysis in holding same-sex claim cognizable under Title VII);

Pritchett v. Sizeler Real Estate Management Co., No. CIV.A. 93-2351, 1995 WL 241855, at *2 (E.D.

La. Apr. 25, 1995) ("Same gender [homosexual] harassment is clearly a form of gender discrimination because 'but for' the gender of the subordinate, she would not have been subjected to the harassment.");

Prescott v. Independent Life & Accident Ins. Co., 878 F. Supp. 1545, 1550-51 (M.D. Ala. 1995) ("When a homosexual man propositions or harasses a male subordinate, but does not similarly proposition or harass female workers, the male employee has been singled out because of his gender. But for his being male, the harassment would not have occurred.") (emphasis added) (citation omitted).

113. MACKINNON, supra note 23, at 107.

114. See SusAN EsmuCH,REAL RAPE (1987).

115. Estrich, supra note 34, at 820.

116. Id. at 819-20. Samuel Marcosson also argues that the sexual harassment of gays and lesbians should be considered discrimination because "the sexual content of the harassment is enough, regardless of whether the harasser is motivated by the target's gender." Samuel A. Marcosson, Harassment on the Basis of Sexual Orientation:A Claim of Sex DiscriminationUnder Title VII, 81 GEo. LJ.1, 15 (1992);

see also Lisa Wehren, Note, Same-Gender Sexual Harassment Under Title VII: Garcia v. Elf Atochem Marks a Step in the Wrong Direction, 32 CAL. W. L. Rav. 87 (1995) (asserting that if conduct is sexual in nature it violates Title VII).

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April 1997] rise to the idea that a theory of sexuality may be derived directly out of a theory of gender.

Yet, if "the sexual aspect" is going to do much of the work in a jurisprudence that regards sexual harassment as a kind of sex discrimination, then where is the sexism in sex?

For Estrich, the fact that the conduct is sexual in nature is not merely an accidental aspect of the harm, but rather, lies at the core of what makes the conduct sex discrimination. Sex in the workplace is regarded almost as a toxic pathogen by Estrich for reasons also embraced by other feminists. 118 For these theorists of sexual harassment, the sexual aspect of sexual harassment does all the hegemonic work and has the effect and purpose of sexualizing women workers by reducing their humanity generally, and their status as workers specifically, to objects of male sexual pleasure." 9 MacKinnon is in complete agreement with these insights. For MacKinnon, the harm of sexual harassment lies, in significant part, in the fact that it is an instrument of sex-role stereotyping. She observes that "a sex stereotype is present in the male attitude, expressed through sexual harassment, that women are sexual beings whose privacy and integrity can be invaded at will, beings who exist for men's sexual stimulation or gratification."' More than anything else, Catharine MacKinnon's life work has been committed to making the connection between sexism, sex, and power. While few courts have gone as far as MacKinnon and Estrich to hold that male sexual behavior is, in some sense, fundamentally sexist,' 2 1 most courts do treat sex harassment differently from sexual harassment. The sexual content of the harassing behavior makes a difference to them just as it does to many feminist theorists. But what is this difference? It is rather disingenuous to answer that sexual harassment is conduct "because of sex" by arguing that the "sex" in Title VII refers to a class of human activity and not the identity category. In order to better understand the role that sex (as in "to have sex" or "to engage in sexual activity") plays in sexual harassment, it is helpful to compare the differGayle Rubin, Thinking Sex: Notes for a Radical Theory of the Politicsof Sexuality, in PLEASURE AND DANGE: EXPmLoRIG Fkhtiu SE.UALIT" 267, 307 (Carole S. Vance ed., 1984).

118. See Estrich, supranote 34, at 830 ("It is precisely this humiliation and fear that makes simply untenable the analogy between complaints about a dentist treating you unjustly and complaints about your boss forcing you to have sex with him."); see also Abrams, supranote 51, at 1205 ("Because of the inequality and coercion with which [sex] is so frequently associated in the minds of women, the appearance of sexuality in an unexpected context or a setting of ostensible equality can be an anguishing experience."). Sally Bums, too, could well be read to hold this position. See Bums, supra note 89, at 427 (stating that the sexual pictures of women at the Jacksonville Shipyards "clearly ha[d] a disproportionately demeaning impact on the women... working at [the shipyards]").

119. Abrams, supra note 51, at 1186; see also id at 1209 (noting that while women have gained "hard-won" access to jobs previously denied them, they encounter demeaning treatment that exploits their sexuality and "prevents them from feeling, and prevents others from perceiving them, as equal in the workplace."). Similarly, MacKinnon writes: "A woman is a being who identifies and is identified as one whose sexuality exists for someone else, who is socially male." Catharine A. MacKinnon, Feminism, Marxism, Method and the State: An Agenda for Theory, 7 SIGNS 515, 533 (1982).

120. MAcKunNON, supra note 23, at 179.

121. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991), comes closest to this position. See also text accompanying notes 186-187 infra.

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ent ways that courts approach claims of sexual harassment based primarily on nonsexual conduct with claims of sexual harassment based primarily on sexual conduct.

In MeritorSavings Bank, FSB v. Vinson, the Supreme Court recognized two kinds of sexual harassment, quid pro quo and hostile environment harassment.1 22 In fact, there are three kinds of sex harassment: (1) quid pro quo harassment, which by definition is sexual in nature; 123 (2) hostile environment sexual harassment, whereby the plaintiff alleges that the defendant engaged in unwelcome conduct of a sexual nature that created an intimidating, hostile, or offensive working environment; 124 and (3) hostile work environment sex harassment, in which the plaintiff alleges that, because of the plaintiff's sex, the defendant engaged in nonsexual conduct that created an intimidating, hostile, or offensive working environment. 125 With regard to the last two kinds of harassment, the law distinguishes between sexually oriented harassment1 2 6 and sex-based harassment,1 27 sometimes called gender-based harassment. Although in principle the former is a subset of the latter, courts for the most part have treated them independently. Most courts have been willing to recognize claims for sexual harassment based upon

122. 477 U.S. 57, 65 (1986).

123. Recall that quid pro quo harassment occurs when submission to sexual conduct is implicitly or explicitly made a condition of concrete employment benefits. See 29 C.F.R. § 1604.11(a)(l)-(2) (1996).

124. See id. § 1604.11(a)(3).

125. This form of sex harassment was explicitly addressed in the proposed Guidelines on Harassment Based on Race, Color, Religion, Gender, National Origin, Age, or Disability. 58 Fed. Reg.

51,266, 51,269 (1993) (to be codified at 29 C.F.R. pt. 1609) (proposed Oct. 1, 1993). However, since the proposed guidelines were withdrawn by the EEOC, see note 89 supra, there is no current provision in the guidelines dealing explicitly with this type of harassment. For the argument that 29 C.F.R.

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