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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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It is worth noting one consequence of the absence of a doctrinal foundation for concluding that sexual harassment is sex discrimination ipso facto. Most courts that are inclined to infer discrimination where there is evidence of sexually harassing behavior leave open the question of what the defendant's rebuttal case might look like. Once the inference has been raised, need the defendant come forward with a legitimate nondiscriminatory reason or business necessity for what would otherwise be considered offensive conduct? What would that legitimate nondiscriminatory reason or business necessity be? Do we not then make the discrimination claim turn on the subjective mental state of the defendant, rather than the fact that his actions created a sexually hostile work environment?

In Stacks v. Southwestern Bell Yellow Pages, Inc., 137 the Eighth Circuit provided an answer to at least one of these questions. In considering the application of the Price Waterhouse mixed-motive burden shifting scheme 38 to a case of sexual harassment, the Eighth Circuit held that "[t]he mixed-motives analysis is inapplicable to a hostile-work environment claim. The analysis was designed for a challenge to 'an adverse employment decision in which both legitimate and illegitimate considerations played a part.' An employer could never have a legitimate reason for creating a hostile work environment."1 While it may be true that an employer could never have a legitimate reason for doing so, current sex discrimination doctrine allows for what some might regard as illegitimate, yet nondiscriminatory excuses: the bisexual or equal opSee Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982).

137. 27 F.3d 1316 (8th Cir. 1994).

138. See Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989). The Price Waterhouse scheme provides that "once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role." Id. (footnote omitted).

139. Stacks, 27 F.3d at 1326 (quoting Price Waterhouse, 490 U.S at 247) (citations omitted) (emphasis added).

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portunity harasser. 140 Because their omnidirectional conduct does not expose "members of one sex... to disadvantageous terms or conditions of employment to which members of the other sex are not exposed," 1 4 1 at present, sexual harassment doctrine affords a safeharbor that shields these scoundrels from Title VII sexual harassment liability.

One final argument has been made in support of the conclusion that it is the sexual nature of the conduct that renders it sex discrimination. Unlike the examples above, it is an actual argument, rather than a mere conclusion posing as argument. In a few cases, courts have been willing to find that sexual conduct can rise to the level of sex discrimination specifically because the conduct "is disproportionately more offensive or demeaning to one sex."'1 42 In Robinson v.

Jacksonville Shipyards, Inc., the court considered the claim made by female shipyard workers that their workplace, polluted with pictures of naked women and other sexually graphic material, created a sexually hostile work environment, even though many of the sexual materials were not directed at them individually. 143

140. Conceptualizing sex discrimination primarily as conduct that would not have taken place but for the victim's sex has produced an exception for what has come to be known as the bisexual supervisor. See Barnes v. Costle, 561 F.2d 983, 990 n.55 (D.C. Cir. 1977) ("In the case of the bisexual superior, the insistence upon sexual favors would not constitute gender discrimination because it would apply to male and female employees alike."); see also McDonnell v. Cisneros, 84 F.3d 256, 260 (7th Cir. 1996) (same); Bundy v. Jackson, 641 F.2d 934, 942 n.7 (D.C. Cir. 1981) (citing Barnes for same proposition); Charles R. Calleros, The Meaning of "Sex": Homosexual and Bisexual Harassmentunder Title VII, 20 VT. L. REv. 55, 70-78 (1995) (analyzing cases involving bisexual harassers and arguing that the courts' treatment of them is proper because they do not involve disparate treatment on the basis of gender); Sandra Levitsky, Note, Footnote 55: Closing the "Bisexual Defense" Loophole in Title VII Sexual Harassment Cases, 80 MIrN. L. REv. 1013 (1996) (arguing that the exception for the bisexual harasser is misguided and that the focus should be on whether the harasser acts to discriminate on the basis of gender). The bisexual supervisor, however, is not the only scoundrel who can avoid Title VII liability for offensive sexual conduct in the workplace under the "but for" formulation of the wrong of sexual harassment. His friend, the "equal opportunity harasser," creates a sexually hostile working environment for both male and female employees, but, unlike the bisexual supervisor, no facts are adduced with respect to his sexual orientation or desires. This harasser has also enjoyed immunity from liability in a few cases. See. e.g., Cabaniss v. Coosa Valley Med. Ctr., CV 93-PT-2710-E, 1995 WL 241937, at *27 (N.D. Ala. Mar. 20, 1995) (mem.) (implying that if harasser treated both men and women equally badly he would not be guilty of gender discrimination). Several other courts, however, have considered and rejected a Title VII safe harbor for the "equal opportunity harasser." See, e.g., Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463-64 (9th Cir. 1994) (rejecting equal opportunity harasser defense and noting that both male and female employees could have viable harassment claims) cert. denied, 115 S. Ct. 733 (1995); Chiapuzio v. BLT Operating Corp., 826 F. Supp. 1334, 1337-38 (D.

Wyo. 1993) (holding that supervisor's harassment was actionable even though he may have harassed both sexes equally, because the individual plaintiffs were harassed because they were male).

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

142. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1522-23 (M.D. Fla. 1991). The Robinson court identified three ways in which the plaintiffs could show that the conduct was based upon sex: (1) proof of harassing behavior lacking sexually explicit content but directed at women and motivated by animus against women; (2) proof of sexual behavior directed at women thereby raising the inference that the harassment is based upon sex; and (3) proof of behavior that is not directed at a particular individual or group of individuals, but that is disproportionately more offensive or demeaning to one sex. Id.; see also Stair v. Lehigh Valley Carpenters Local Union No. 600, No. CIV.A. 91-1507, 1993 WL 235491, at *20 (E.D. Pa. July 24, 1993) (discussing conduct which is "disproportionately more offensive or demeaning to one sex"), aff'd, 43 F.3d 1463 (3d Cir. 1994).

143. See Robinson, 760 F. Supp. at 1523.

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April 1997] In finding that sexual conduct can be disproportionately more offensive and demeaning to women than to men, the court concluded "that the presence of the pictures, even if not directed at offending a particular female employee, sexualizes the work environment to the detriment of all female employees." 144 In so holding, the court acknowledged the expert testimony of Dr. Susan Fiske, an expert in sex stereotyping and professor of psychology at Amherst College. Dr.

Fiske testified that sexually explicit materials in the workplace, like that in the plaintiffs' workplace, act as stimuli that may "prime"' or "encourage a significant proportion of the male population in the workforce to view and interact with women coworkers as if those women are sex objects."'14 5 Relying on Dr.

Fiske's testimony, the court concluded:

"the presence of pictures of nude and partially nude women, sexual comments, sexual joking, and other behaviors previously described creates and contributes to a sexually hostile work environment. Moreover, this framework provides an evidentiary basis for concluding that a 146 sexualized working environment is abusive to a woman because of her sex."

The defendants argued that the dirty pictures had not been hung with the intent to offend female workers. Since the pictures were present in the workplace long before women worked at the shipyards, they couldn't amount to intentional discrimination because of the plaintiffs' sex. The court rejected this

argument, reasoning:

The pictures themselves fall into the third category, behavior that did not originate with the intent of offending women in the workplace (because no women worked in the jobs when the behavior began) but clearly has a disproportionately demeaning impact on the women now working at JSI. The expert testimony of Dr. Fiske provides solid evidence that the presence of the pictures, even if not directed at offending a particular female employee, sexualizes the work environment to the detriment of all female employees. 147 The Robinson "disproportionately more offensive or demeaning" rule could be interpreted to mean that all sexual conduct in the workplace creates a sexually hostile and discriminatory work environment for women because it sexualizes the workplace. Under this rationale, sexual harassment has a disparate impact upon women by virtue of their special vulnerability to sexual conduct in the workplace. 148 Therefore, one might conclude, we should rid the workplace of as much sexual conduct as possible because of its presumptively discriminatory effects on women. Yet, to the extent that the Robinson rule has been recId.

145. Id. at 1503. This process is called "priming," in which "specific stimuli in the work environment prime certain categories for the application of stereotypical thinking." Id.; see also John A. Bargh, Shelly Chaiken, Rajen Govender & Felicia Pratto, The Generality of the Automatic Attitude Activation Effect, 62 J. PERoSALrry & Soc. PSYCHOL. 893 (1992) (examining how "attitude objects" achieve particular behaviors in viewers).

146. Robinson, 760 F. Supp. at 1505.

147. Id. at 1523 (emphasis added).

148. See Bums, supranote 89, at 426-27 (discussing disparate impact evidence in hostile environment claims). Other courts have held that sexual harassment amounts to the disparate treatment of women. See, e.g., Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 144 (2d Cir. 1993); Henson v.

City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982).

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ognized by other courts, it has been construed in a more limited fashion. That is, not all sexual conduct is demeaning to women; only that which depicts women as sex objects, sexually ridicules, insults them, or suggests sexual violence toward women. So, in Fox v. Sierra Development Co., the court declared that it was "unaware of any modem case standing for the proposition that sexuality itself is harmful to men or women. '1 49 Rather, according to the court in Stair v. Lehigh Valley CarpentersLocal Union No. 600,150 the content of the sexually explicit writings, drawings or discussions must, like "'girlie' calendars...

communicate[ ] to women that the [defendant] views them as sexual objects rather than as skilled co-workers." 1 51 The advantage of Robinson's "disproportionately more offensive or demeaning" rule is that it begins to answer the question: What is sexist about sex? Although Robinson does not provide a satisfactory answer, at least it represents a more principled response to this infrequently asked, but fundamental, question.

Just as in the different-sex context, in same-sex cases some courts have found that the sexual nature of the complained of conduct is significant, if not dispositive. In Martin v. Runyon, 15 2 a male postal employee complained that a male coworker called him "sweetie pie" and "bitch." The EEOC, however,

149. Fox v. Sierra Dev. Co., 876 F. Supp. 1169, 1175 (D. Nev. 1995); cf Erznoznik v. City of Jacksonville, 422 U.S. 205, 210-12 (1975) (stating nonobscene exposure to sex is not something that the government may prevent).

150. No. CIV.A. 91-1507, 1993 WL 235491 (E.D. Pa. July 24, 1993), aft'd,43 F.3d 1463 (3d Cir.


151. Id. at *21. At least one commentator has explicitly taken issue with the view that the sexism in sex depends upon its content. See Marcosson, supra note 116, at 23 ("The whole point of this discussion is to show that harassment that is sexual in nature but not gender-basedcan constitute sexual harassment under Title VII.") (emphasis added). Not surprisingly, content-based limits on workplace speech, such as those advanced by the plaintiffs in Robinson, Fox, and Stair,are immediately met by First Amendment objections, particularly in the public employment setting. See Robinson, 760 F. Supp.

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