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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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§ 1604.11 (a) includes this type of sex harassment, see note 128 infra; see also McKinney v. Dole, 765 F.2d 1129, 1138 (D.C. Cir. 1985) (declining to hold that sexual harassment must "take the form of sexual advances or of other incidents with clearly sexual overtones").

126. Sexually oriented harassment refers to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. See Meritor,477 U.S. at 65 (citing EEOC Guidelines, 29 C.F.R. § 1604.11 (a) (1985)). The plaintiff must also show that conduct of a sexual nature is unwelcome and "it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment."' Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).

127. Sex-based harassment refers to "[i]ntimidation and hostility toward women because they are women" and "the predicate acts underlying a sexual harassment claim need not be clearly sexual in nature." Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988). In Hall, male construction workers called the female workers obscenities, urinated in their gas tanks, and refused to give the women a truck to take to town for bathroom breaks. See id.; see also Spain v. Gallegos, 26 F.3d 439, 447.

(3d Cir. 1994) ("[A]n employee can demonstrate that there is a sexually hostile work environment without proving blatant sexual misconduct."); Chambers v. American Trans Air, Inc., 17 F.3d 998 (7th Cir. 1994) (noting that harsher discipline, heavier workloads and overt hostility directed toward female workers can create a sexually harassing work environment); Stacks v. Southwest Bell Yellow Pages, Inc., 996 F.2d 200 (8th Cir. 1993); Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990) ("To constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones.... ); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987) (finding that Title VII prohibits harassment that is not sexually explicit); McKinney, 765 F.2d, at 1136-40 (interpreting Title VII to prohibit a wide range of harassing behaviors); Konstantopoulos v. Westvaco Corp., 893 F. Supp. 1263, 1277 (D. Del. 1994) (finding that, in addition to some sexually explicit conduct, nonsexually explicit conduct contributed to the intimidation and hostility directed at plaintiff because she was a woman).

HeinOnline -- 49 Stan. L. Rev. 716 1996-1997

SEXUAL HARASSMENT

April 1997] either conduct that is sexual in nature or conduct that creates a hostile environment but is nonsexual in its content. 128 Nevertheless, the analysis used by the courts as to why the conduct is discrimination "based upon sex" differs depending upon whether the conduct complained of is or is not sexual. Typically, in

128. See, e.g., Hall, 842 F.2d at 1014 ("Intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances.") (emphasis added); McKinney, 765 F.2d at 1138 ("We have never held that sexual harassment... must, to be illegal under Title VII, take the form of sexual advances or of other incidents with clearly sexual overtones."); Fox v.

Sierra Dev. Co., 876 F. Supp. 1169, 1173 (D. Nev. 1995) ("If this [nonsexual] conduct were directed only at men, or were directed at plaintiffs because they were men, it might be actionable as gender oriented harassment.. "); also Stacky, 27 F.3d at 1326; Kopp v. Samaritan Health Sys., Inc., 13 see F.3d 264, 269 (8th Cir. 1993); Smolsky v. Consolidated Rail Corp., 780 F. Supp. 283, 294 (E.D. Pa.

1991).

In either case, sexual harassment remains difficult to prove. The Seventh Circuit recently emphasized the heavy burden carried by hostile work environment plaintiffs even when the conduct complained of is sexual in nature. In Baskerville v. CulliganInt'l Co., Chief Judge Posner held that Title VII was designed to protect against only that conduct which renders the workplace "hellish for women," and not "the occasional vulgar banter[ ] tinged with sexual innuendo." 50 F.3d 428, 430 (7th Cir. 1995).

A minority of courts, however, have limited sexual harassment claims only to that conduct that is sexual in nature. See, e.g., Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986); Downes v.

Federal Aviation Admin., 775 F.2d 288, 290 (Fed. Cir. 1985); Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982). This interpretation of the meaning of "sexual harassment" stems, in part, from the courts' plain reading of the term, which on its face appears to require that the conduct be sexual.

The EEOC Guidelines arguably provide further justification for such a reading. The guidelines state:

Harassment on the basis of sex is a violation of section 703 of title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute harassment when.., such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

EEOC Guidelines, 29 C.F.R. § 1604.11(a) (1996).

If the second sentence of the EEOC Guidelines were understood to modify the first sentence, then only conduct of a sexual nature would be actionable under a Title VII hostile environment theory of recovery. One could, however, read the first sentence of the Guidelines to state a general principle, and the second sentence as merely an illustration of how explicit sexual conduct could be considered sexual harassment. See, e.g., Hall, 842 F.2d at 1014 ("Although appellants correctly note that the definition of sexual harassment in the EEOC regulation emphasizes explicitly sexual behavior, the regulations do not state that other types of harassment should not be considered."); McKinney, 765 F.2d at 1138 n.20 ("[W]e do not believe that an EEOC regulation that identifies certain activities as prohibited by Title VII can or should be taken to mean that any other activities are allowed."); see also Marcosson, supra note 116, at 14 n.58 (claiming that the EEOC has recognized harassment which is "sex-based but not sexual in nature").





Possible meanings of the term "sexual harassment" are further complicated by the EEOC's issuance of proposed Guidelines on HarassmentBased on Race, Color, Religion, Gender,National Origin, Age or Disability, 58 Fed. Reg. at 51,266, which explicitly excluded harassment that is sexual in nature from coverage within the Commission's Guidelineson DiscriminationBecause of Sex, 29 C.F.R.§ 1604.

The EEOC made clear that to the extent that the proposed guidelines concerned sex or genderbased harassment, they pertained to harassing conduct that was not sexual in nature because [s]exual harassment [as distinguished from gender harassment] continues to be addressed in separate guidelines because it raises issues about human interaction that are to some extent unique in comparison to other harassment and, thus, may warrant separate emphasis.

Guidelines on Harassment Based on Race, Color, Religion, Gender, National Origin, Age, or Disability, 58 Fed. Reg. at 51,267.

By distinguishing sexual harassment from gender harassment, one could reasonably conclude that the EEOC interprets sexual harassment as limited to harassing conduct of a sexual nature, and gender harassment as referring to all other nonsexual harassing conduct that is undertaken because of the target's sex. See Lynn McClain, The EEOC Sexual Harassment Guidelines: Welcome Advances Under Title VII?, 10 U. BALT. L. R-v. 275, 290-91 (1981) (expressing concern that the EEOC Guidelines are underinclusive to the extent that they do not address conduct that is sexist but not explicitly sexual in nature).

HeinOnline -- 49 Stan. L. Rev. 717 1996-1997 STANFORD LAW REVIEW [Vol. 49:691 harassment cases involving nonsexual conduct, courts explicitly require that the plaintiff show that the conduct was "based upon sex." 129 However, in cases where the plaintiff alleges hostile conduct of a sexual nature, most courts, including the Supreme Court in Meritor, are willing to infer,' 30 if not conclude, 1 3 ' that the conduct was based upon sex without demanding any specific proof thereof beyond the sexual nature of the conduct. In the traditional scenario, where a man has engaged in unwelcome and offensive sexual conduct toward a woman in the workplace, proof of conduct that is consistent with the description of sexual harassment in the EEOC Guidelines1 32 will typically establish a prima facie case. 133 Indeed, many courts intone the "because of sex" element and then never discuss it again.' 34 For many courts, proof of the "because of sex" element is not required because "once the plaintiff in such a case proves that harassment took place, the most difficult legal question typically will concern the responsibility of the employer for that harassment."' 135

129. In the nonsexual cases, most courts demand that the plaintiff establish the "because of sex" element of the prima facie case by proving "but for" causation. See, e.g., Hall, 842 F.2d at 1014 ("[Ihe district court correctly considered [nonsexual] incidents of harassment and unequal treatment that would not have occurred but for the fact that [plaintiffs] were women."); McKinney, 765 F.2d at 1138 (holding that conduct need not be sexual to constitute sexual harassment, and that "any harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprise an illegal condition of employment under Title VII").

130. See, e.g., Smolsky, 780 F. Supp. at 295 (comments such as "[I] would like to 'get into her pants'.... create the inference that the harassment and discrimination where [sic] intentional and based on the fact that the plaintiff was a woman"); Robinson v. Jacksonville Shipyards Inc., 760 F. Supp.

1486, 1522 (M.D. Fla. 1991) ("[S]exual behavior directed at women will raise the inference that the harassment is based on their sex.") (emphasis added) (citing Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904-05 (11th Cir. 1988)).

131. See Andrews, 895 F.2d at 1482 n.3 ("The intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course. A more fact intensive analysis will be necessary where the actions are not sexual by their very nature.") (emphasis added); Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir. 1988) (finding offensive and sexual nature of cartoons sufficient to establish that harassment was based on sex); Konstantopoulos, 893 F. Supp. at 1277 ("Because at least some of the conduct at issue was sexually explicit, it is fair to draw the conclusion that, by virtue of this conduct, plaintiff suffered intentional discrimination because of her sex.").

Catharine MacKinnon's treatment of pornography as the subordination of women mirrors these assumptions. The antipornography ordinance passed by the City of Indianapolis, which was drafted by MacKinnon and Andrea Dworkin, sets forth that "[a] woman aggrieved by trafficking in pornography may file a complaint 'as a woman acting against the subordination of women'... [yet a] man, child or transsexual also may protest trafficking 'but must prove injury in the same way that a woman is injured."' American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 326 (7th Cir. 1985) (quoting Indianapolis Code § 16-17(b)), affd, 475 U.S. 1001 (1986). Thus, the subordinating injury caused by pornography to women is presumed, whereas the injury to men, children and transsexuals must be proven explicitly.

132. The EEOC guidelines provide that "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when.., such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 29 C.F.R. § 1604.11(a) (1981).

133. Of course, employer liability would remain to be proven separately.

134. See, e.g., Ward v. Johns Hopkins Univ., 861 F. Supp. 367, 375 (D. Md. 1994); Frey v. Penn Sylvania Airlines, 859 F. Supp. 137, 144 (E.D. Pa. 1992); Saville v. Houston County Healthcare Auth., 852 F. Supp. 1512, 1526 (M.D. Ala. 1994); Cronin v. United Service Stations Inc., 809 F. Supp. 922, 927 (M.D. Ala. 1992); Boarman v. Sullivan, 769 F. Supp. 904, 909 (D. Md. 1991).

135. Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983).

HeinOnline -- 49 Stan. L. Rev. 718 1996-1997

SEXUAL HARASSMENT

April 1997] This, of course, is a mistake. The EEOC Guidelines on sexual harassment seek to define only part of the Title VII prima facie case. They do not address the entirety of the plaintiffs case. Thus, as the Henson court made clear, the elements of a sexual harassment case are as follows: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) the harassment complained of affected a term, condition, or privilege of employment;

and (5) proof of respondeat superior. 136 The EEOC Guidelines interpret only the second and perhaps fourth elements of the plaintiff's prima facie case-the remaining elements must be independently pled and proven. Yet, in most cases, when the plaintiff alleges that the defendant engaged in explicitly sexual conduct, the "based upon sex" element is simply not discussed. Instead, the inference or conclusion is automatically drawn, and no theory is advanced as to why it is legitimate to use such an evidentiary shortcut.



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