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Directions in Sexual Harassment Law$

Catharine A. MacKinnon and Reva B. Siegel

Print publication date: 2003

Print ISBN-13: 9780300098006

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300098006.001.0001

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What's Wrong with Sexual Harassment

What's Wrong with Sexual Harassment

Chapter:
(p.169) 12 What's Wrong with Sexual Harassment
Source:
Directions in Sexual Harassment Law
Author(s):

Katherine M. Franke

Publisher:
Yale University Press
DOI:10.12987/yale/9780300098006.003.0013

Abstract and Keywords

This chapter shows how sexual misconduct has been considered as a form of sex discrimination and how, through time, this has come to go without saying. Until recently, the “why” of sexual harassment has remained underexamined by courts and commentators alike. It is to this issue that both legal scholars and the Supreme Court have turned their attention of late. Unfortunately, now, as in 1979, a number of foundational questions remain unaddressed in the jurisprudence that has evolved in response to this “fact” of our working lives. First, what does it say about our legal conception of gender-based subordination that we treat sexual harassment as a form of sex discrimination? Second, why should we treat sexual harassment differently from racial or ethnic harassment, or other forms of seemingly “nonsexual” sex discrimination for that matter?

Keywords:   sexual misconduct, sex discrimination, legal scholars, Supreme Court, foundational questions, gender-based subordination, ethnic harassment, nonsexual sex discrimination

The Problem

What exactly is wrong with sexual harassment? In the United States today, it goes without saying that workplace sexual misconduct is a form of sex discrimination. How has this come to go without saying? Is there something we should be saying about it that illuminates it's a priori sexism? The time has come to ask these questions anew, some twenty years after the publication of Catharine MacKinnon's groundbreaking book in which she first articulated how sexual harassment institutionalized the sexual subordination of women to men in the workplace. Since 1979, as courts have come to embrace a cause of action for sexual harassment under Title VII of the Civil Rights Act of 1964, legal scholars have provided rich and nuanced accounts of what I have called the what1 and what Kathryn Abrams has called the how2 of sexual harassment. Yet until recently, the why of sexual harassment has remained underexamined by courts and commentators alike. It is to this issue—why should sexual harassment be considered a form of sex discrimination?—that both legal scholars and the Supreme Court have turned their attention of late.

Unfortunately, now as in 1979, a number of foundational questions remain unaddressed in the jurisprudence that has evolved in response to this “fact” of (p.170) our working lives. First, what does it say about our legal conception of gender-based subordination that we treat sexual harassment as a form of sex discrimination? Second, why should we treat sexual harassment differently from, say, racial or ethnic harassment, or other forms of seemingly “nonsexual” sex discrimination, for that matter? The answer to both of these questions turns, in significant part, on the fact that the conduct in question is sexual in nature. Yet, why does offensive conduct gain this entirely special status once it is recognized as sexual? In other words, what is the significance of the sexual nature of the conduct to our understanding of it as sex discrimination?

The task of feminists in the 1970s and early 1980s was to illuminate how gender-based structural inequality was accomplished through sex. Sex is not just a drive or a feeling, they argued, it is power. Having persuaded courts that gender-based power is at stake when men solicit sex from women in the workplace, we are now paying the price of having oversimplified the message in order to make it comprehensible to a legal audience. In this chapter I will briefly describe how, during the first twenty years, the judiciary has answered the question: What's wrong with sexual harassment? I will then propose a new direction for sexual harassment law specifically and sex discrimination law more generally, that corrects for the short cuts and mistakes that the courts have made in developing an overly formalistic approach to an extremely complex workplace dynamic that affects women and men in all strata of the wage/labor market.

Twenty Years of Sexual Harassment Jurisprudence

Initially, courts dismissed the claims of sexual harassment plaintiffs as trivial complaints about inharmonious working relationships, gripes about the personal proclivities of male workers that were unrelated to employers' responsibility, or whining about what was the inevitable sexual attractions that result from men and women working together. Yet, in the mid- to late 1970s courts began to be more receptive to the notion that there was a connection between unwanted sexual advances and sex discrimination. We inherit today what has been an evolution in juridical reasoning about why sexual harassment violates laws prohibiting sex discrimination in the workplace.

The central judicial conception of the discriminatory nature of sexual harassment is grounded in notions of formal equality: Men and women are not to be treated differently in the workplace because of their sex. Thus, courts have asked: Is the complained of harassment something that would not have taken place but for the victim's sex? In other words, would he have sexually harassed her if she had been a man? This formal principle of equality enables a (p.171) court to isolate those practices that are sex-based discrimination from those that are not.

Employed in sexual harassment cases from the very beginning, the but for formulation of the wrong of sex discrimination quickly became an unstated premise underlying all sexual harassment litigation. So much so that the Supreme Court summarily concluded in 1986 that “[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor ‘discriminate[s]’ on the basis of sex.”3 Yet the Supreme Court offered no explanation for why this conclusion could be asserted “without question.” For the Supreme Court as well as lower courts, this short cut was animated by the belief that men sexually harass women as an expression of their (hetero)sexuality: “When someone sexually harasses an individual of the opposite gender, a presumption arises that the harassment is ‘because of’ the victim's gender. This presumption is grounded on the reality that sexual conduct directed by a man, for example, toward a woman is usually undertaken because the target is female and the same conduct would not have been directed toward another male.”4

After a period of time courts began to ignore the “because of sex” element of the plaintiff's case when female plaintiffs alleged that men had engaged in unwelcome, explicitly sexual conduct. If the conduct was sexual, it went without saying that it was discriminatory, and the court simply moved on to employer liability. “Sexual harassment can take different forms, both sexual and non-sexual. ‘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.'”5

It may be that it is legitimate to draw such an inference, or even presumption, in cases where a man is charged with sexually harassing a woman—but drawing this inference based upon our intuition that this is what the conduct means must take place within the context of a theory of why sexual harassment is, or can be, a form of sex discrimination. The inferences we draw in these central cases are an efficient application of what principle of discrimination?

This very question could no longer be ignored once the courts had to determine whether to extend these principles of sex equality to same-sex sexual harassment. Offensive conduct of a sexual nature, removed from the different-sex context and located in a same-sex context, presented a challenge to the notion that it was the sexual nature of the conduct that rendered it sex discrimination. By the late 1990s, federal courts began to see more and more same-sex sexual harassment cases, where men, primarily,6 complained of being sexually (p.172) harassed by other men. The anxiety and confusion expressed in the court's opinions in these cases reflected some of the flaws underlying the resolution of previous different-sex cases, as well as the paucity of Supreme Court guidance illuminating the underlying nature of the sexual harassment cause of action. What could go without saying in the different-sex cases—if the conduct was sexual, it must have been “because of sex”—was an awkward proxy for a theory of discrimination in the same-sex cases.

Many courts outwardly struggled with the question of whether, and if so, why the sexual harassment of a man by another man was the same kind of harm as that which Congress sought to prohibit when it proscribed sex discrimination in Title VII. In order to answer whether there was any sexism in same-sex harassment, courts had to be clearer about the discriminatory wrong at stake in different-sex cases. What were they to do when an implicit heterosexual presumption was destroyed? If the courts took a “boys will be boys” view of this conduct, didn't it risk reversion to the pre-1975 view that sexual harassment was just private obnoxious behavior, not discrimination?

In 1998, the United States Supreme Court addressed the problem of same-sex sexual harassment for the first time, and in doing so was forced to articulate its conception of the wrong of sexual harassment with more specificity than it had in the past. In Oncale v. Sundowner Offshore Services,7 the Court held that in some circumstances the sexual harassment of a man by other men can be a form of sex discrimination. Unfortunately, rather than forging a principled path out of the thicket of previously muddled sexual harassment jurisprudence, the Supreme Court compounded the errors perpetrated by lower courts.

In Oncale, as in its other sex discrimination cases, the Court framed the problem as one of equal treatment. To this end, they relied on the views Justice Ruth Bader Ginsburg had expressed in a 1993 sexual harassment case: “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.”8 This case demonstrates the degree to which the Supreme Court's sex discrimination thinking is influenced by Justice Ginsburg—a former women's rights attorney who is deeply committed to a conception of sex discrimination grounded in formal equality.

Thus, the guiding principle reinforced by the Court's Oncale decision is a “but for” conception of the wrong of sexual harassment. Indeed, the Court's primary example of discriminatory sexual harassment is sexual conduct that is motivated by desire—whether heterosexual or homosexual. But they said more: not all unwelcome expressions of desire amount to sex discrimination. Concerned that Title VII not be transformed into “a general civility code,” the (p.173) Court insisted that the statute does not reach the “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.”9 So, boys must be left some room to be boys. And, of course, so must girls.

This opinion seems to indicate that the Supreme Court, including Justice Ginsburg, was asleep or simply not interested when feminists and the greater public alike explored the gendered nature of sex in our culture over the last twenty years. Left completely ignored in the Supreme Court's sexual harassment jurisprudence are notions of structural inequality and the relationship between gender-based power and sex. The rule that emerges from the Oncale decision, and that must guide the lower courts when they resolve similar cases, is whether the male plaintiff was treated differently than a woman would have been had she been in his position. But his was an all-male workplace—there were no women to whose experiences we could compare that of Mr. Oncale. The only viable avenue left to Oncale was to prove that his attackers were gay, and that they went after him because they desired him, and not women.

Well, what's wrong with that? First, it figures the locus of the wrong on the harasser's subjective motivation: “Why did he/they do it?”Yet one of the great strengths of Title VII generally, and sexual harassment jurisprudence specifically, is that it applies to conduct that has either the purpose or the effect of discriminating on the basis of sex. Over time, Title VII has proven to be an effective weapon in combating social attitudes about the relative interests and abilities of men and women that are not necessarily grounded in animus so much as outmoded myths and stereotypes. Thus a male boss who interjects sexual comments and behavior into his working relationship with a female colleague may be guilty of sexual harassment whether he naively meant to flatter or invidiously hoped to “get off” on her presence in the workplace. But for causation undermines this significant strength of the statute by shifting our attention back to the purpose rather than the effect of such conduct.

Second, to regard sexual harassment as a form of sex discrimination because the harasser would not have undertaken the conduct “but for” the sex of the victim is to understand the harasser to have engaged in sexual harassment primarily because he finds the target physically attractive, would like to have sex with her or him, and/or derives libidinous pleasure from sexualizing their otherwise professional relationship. Interestingly enough, on this view, the harasser's sexual orientation, either assumed or proven, plays a central role in determining whether the offending sexual conduct was “because of sex.” In fact, in these cases “but for” causation collapses into sexual orientation. Under this view, a harasser only sexually harasses members of the class of people that he or she sexually desires. As such, “because of sex,” primarily means (p.174) because of the harasser's sexual orientation, “and only secondarily because of the victim's sex.”

What, then, is wrong with understanding sexual harassment as an expression of sexual desire? A great deal. First, as a logical matter, this reasoning works only in a world populated exclusively by Kinsey Ones and Kinsey Sixes, that is, people who are exclusively heterosexual or exclusively homosexual in their attractions, desires, and sexual behavior.

Yet it would be both a theoretical and a descriptive mistake to characterize offensive workplace sexual conduct primarily as the expression of sexual desire. While most, although certainly not all, people differentiate between men and women in their choice of sexual partners, what the courts have done is build a theory of discrimination on this contingent empirical foundation of differentiation. Rather, sexual harassment is better understood as the expression, in sexual terms, of power, privilege, or dominance. Something more has to be said about sex in order to understand its unwelcome expression as inherently discriminatory in nature. What makes it sex discrimination, as opposed to the actions of “a philanderer, a terrible person, and a cheap-skate,”10 or a racist for that matter, is not the fact that the conduct is sexual, but that the sexual conduct is being used to enforce or perpetuate gender norms and stereotypes.

While the courts are clearly working from an outdated and inaccurate description of the complexity of human sexuality, the use of these old chestnuts in sexual harassment jurisprudence is particularly dangerous for their insistence that all sexual behavior is always, already, and exclusively about sexual desire. To understand sexual harassment primarily in terms of misplaced sexual desire is wrong for many of the same reasons that it is a mistake to understand rape as primarily a crime of passion or lust.11 Psychologist John Pryor has closely studied the factors, dynamics, and proclivities that make a man likely to sexually harass (“LSH”) women with whom he works or studies. Among other things, according to the methodology set forth by Neil Malamuth, Pryor found that LSH men also tested likely to rape (“LR”).12 Furthermore, like LR men, LSH men demonstrated attitudes and belief structures that included acceptance of interpersonal violence, the desire to dominate women,13 high authoritarianism, and difficulty assuming other people's perspectives, that is, they had difficulty being empathetic. Finally, Pryor's findings indicated that LSH men believed deeply in sex-role stereotypes and endorsed stereotypic views of male sex-role norms. In summary, building on the rape studies, Pryor confirmed the notion that men engage in offensive sexual conduct in the workplace primarily as a way to exercise or express power, not desire.

While cognitive psychological studies indicate that the equation of sexual (p.175) harassment with sexual desire represents a descriptive error, it may reflect a racial bias as well. Theorists such as Kimberlé Crenshaw have argued that the claim that rape is fundamentally an expression of male sexuality employed toward the end of controlling female sexuality “eclipse[s] the use of rape as a weapon of racial terror.”14

Several observations are in order regarding the impact that the Oncale decision has had on subsequent sexual harassment jurisprudence. Tragically, the Court's reasoning has reinforced the lower courts’ inclination to make sex matter too much and for the wrong reasons. I suppose we should have anticipated this misplaced emphasis on sexual desire in sexual harassment jurisprudence. Having pointed for years at sex and demanded, “Look at this! This is sexism in action!” we are now in the tragic position of ending up with a judiciary that sees sexism only if there is sex. Ruth Colker15 and Vicki Schultz16 have amply demonstrated how courts have come to overemphasize the role of sexual conduct in workplace sex-based harassment, such that it has become more and more difficult to make out a harassment case in the absence of explicitly sexual conduct.

Increasingly, in post-Oncale decisions where the plaintiff alleges that she suffered a combination of explicitly sexual and nonsexual, yet gender-based harassing behavior, courts ignore the nonsexual harassment in determining whether the plaintiff was discriminated against on the basis of her sex: “general harassment, if not sexual is not actionable,”17 declared a recent court. That same Kansas court determined that a female plaintiff had submitted no evidence of gender-based harassing conduct, since all she alleged, in the court's view, was gender-neutral behavior: “interrupting her, giving her a poor evaluation, opening her mail, going through her desk, advising her he could do anything he wanted.”18 Someone please call the Carol Gilligan Hot-Line! This increasing inclination to recognize harassment as sex discrimination only where the conduct is explicitly sexual is further evidenced by the number of courts that separate out the sexual and the nonsexual conduct and examine them separately. By decontextualizing the nonsexual conduct, courts make it more easily understood as mere personality conflict or “simple belligerence.”19 With the sexual conduct eclipsing the other nonsexual harassment, courts seem less inclined to draw an inference that the nonsexual conduct is gender-based.20

Worse yet, if the complained of conduct was sexual but did not evince sexual desire on the part of the harasser, some courts have been quick to dismiss the conduct as beyond the scope of Title VII. For instance, Laura Schmitz, a receptionist, was told by her boss that her attire undermined office productivity because “any ‘hot-blooded male’ in the office could be aroused,” (p.176) and that “he would never let his wife leave the house dressed as [she] was.” After recounting this and other ways in which Schmitz's male superiors portrayed her as a loose woman, the court made clear, however, that they “never asked Schmitz for a date, never expressed any sexual interest in her, and never touched her.” For this reason, the court concluded that “[plaintiff] fails to satisfy the first prong [because of sex] because she cannot show that she was subjected to sexual advances or requests for sexual favors.”21

Next, Oncale's admonition that Title VII does not impose a civility code on the workplace has had the effect of kicking open the door to a new “horseplay” defense to sexual harassment claims. Since Oncale was decided, all of the following conduct has been dismissed as “mere” teasing or horseplay that reflects the genuine but innocuous differences in the ways men and women routinely interact with members of the opposite sex: male workers bringing a novelty item called a “condom tree” to work, calling female coworkers nicknames like “Bumper” and “Bullets” (referring to her breasts), a male supervisor caressing a female employee's hand while playing cat and mouse with her timecard, running a hand under a female worker's skirt and up her thigh, and calling a woman babe, doll, good-looking, honey, playing with her hair while she was talking to customers.22 “A slip of the tongue here and there is absolutely protected by the law, for excessive litigation imposes an unnecessary drain upon business, thereby leading to artificially depressed wages and inflated prices. Moreover, in our pluralist society, no employee can expect the rough and tumble professional world to completely accommodate his or her private sense of decency, civility, and morality.”23

One of the more interesting nomenclatorial exercises that courts have undertaken of late is the parsing of words and expressions such as “bitch,” “blow me,” “kiss my ass,” and “fuck you” or “fuck me,” to determine whether or not they manifest actual sexual interest or gender-based animus as opposed to “mere” anger or frustration—after all, discrimination turns in the balance. Here, as with the “but for” construction of “because of sex,” courts are primarily concerned with discerning the speaker's intent in order to determine the true meaning of these common expressions. Since, one court reasoned, “ass” refers to a portion of the human anatomy shared by both sexes, there is nothing discriminatory about a man yelling at a female coworker on a construction site: “Get your ass back in the truck!”24 When a male firefighter shouts “blow me” to a female coworker, there is no reason to conclude that this “innocuous” comment was a sexual come-on, and it therefore provides no evidence of sex discrimination.25 Since sexual harassment is about misplaced desire, where there is no desire there can be no discrimination.

Finally, given the Supreme Court's insistence in conflating discrimination (p.177) and desire, lower courts are evolving an approach to same-sex harassment whereby sexual harassment is becoming a status crime for gay men. That is to say, lower courts are so inclined to see any expression of sexuality by a gay man as an expression of desire, that little need be shown about the discriminatory nature of a gay man's behavior other than that it was plausibly sexual in nature. Thus we have the federal courts at once developing a jurisprudence of (hetero)sexual harassment that increasingly erases the genderedness of intersexual sexual behavior, while carving out a rule of (homo) sexual harassment that overdetermines gay male behavior as necessarily bespeaking desire, and therefore ineluctably amounting to discrimination because of sex. In both cases, desire figures too much and for the wrong reasons in this second generation of sexual harassment jurisprudence.

The Next Wave

Given that the lower courts cleared and the Supreme Court has now paved a jurisprudential path that oversignifies sex as desire and underappreciates the interrelation between sex, gender, and discrimination, how might we reroute the jurisprudence of sex equality? To begin with, rather than asking whether the harassing conduct amounts to desire, the courts should be asking a different question: What is the sex doing? Most people who consider sexual harassment to violate proscriptions against sex discrimination do so for the reason that they consider sexual harassment to work a kind of sex-based inequality. This must be right. But why is it so? The key, in my view, is to understand what sexual harassment does, that is, the ways in which unwelcome and offensive conduct of a sexual nature produce or reflect sex inequality that can be fully understood only by reference to gender norms and orthodoxies.

In many cases, particularly cases between people of different sexes, sexual harassment violates a norm against sex discrimination because it reflects, perpetuates, and enforces a notion of women as sex objects, rather than competent coworkers, while at the same time reinforcing the notion of the male harasser as a sexual subject, who has the power to subordinate a female coworker through sexual means by sexualizing her. It actually “puts women in their place.” In this sense, sexual harassment is the tool by which subordinating gender stereotypes—femininity figured as sexual vulnerability and availability, masculinity figured as sexual aggressiveness and conquest—are actually inscribed on men and women in the workplace. Thus, in some cases, sexual harassment can be understood as an instance of gender-based stereotyping that reproduces and reinforces larger cultural systems of gender-based subordination in the sense that all things feminine are regarded as inferior to (p.178) all things masculine. This account of the equality component of sexual harassment theory differs from other subordination accounts to the extent that I urge a refocus away from subordination based upon sex differences, and toward subordination based on gender orthodoxies and stereotypes.

But to understand sexual harassment merely as a breach of the equality commitments of Title VII is not only to elide the full potential of Title VII, but also to provide too jaundiced an account of the relationship between gender stereotypes and discrimination. Again, I will ask, “What does the sexual conduct do?” In many cases, it is used as a means by which to punish men and women alike who transgress workplace and larger cultural gender expectations. So, for instance, the sexual harassment of the first women to work in shipyards, steel mills, surgery suites, or other male-dominated sectors of the wage/labor market can be understood to violate equality norms in the workplace—men use sex as a means of preserving workplace power for themselves. But the conduct must also be understood to both affect and reflect notions of gender-based autonomy or agency. These women were doing men's work, that is, masculine work, and the harassment was the punishment they received for refusing to comply with workplace norms that gender certain work as properly and proprietarily men's work. The fact that the harassment was sexual in nature is not central to understanding it as a violation of Title VII. Sexual harassment often reflects this type of intersexual gender policing.

Which brings us to many forms of same-sex sexual harassment—intrasexual gender policing. Where men use offensive sexual conduct as a means by which to enforce particular orthodoxies of masculinity in men—clearly Title VII has been violated, just as it was when Ann Hopkins was denied partnership at Price Waterhouse because she wasn't feminine enough.26 Thus, intrasexual and intersexual workplace policies and practices, sexual or not, that have the purpose or effect of reinforcing or perpetuating an orthodoxy that masculinity is the proper and natural expression of male agency or that femininity is the proper and natural expression of female agency clearly violate Title VII, not so much for reasons of sex-based subordination, but for reasons of gender-based autonomy or agency. To the extent that offensive sexual conduct is used as the tool by which these gender orthodoxies are enforced in the workplace by men against other men, or women against other women, that amounts to discrimination on the basis of sex.

For some time, feminists have resisted the demand that we choose between sameness and difference theories of sex discrimination. These theories must be nuanced enough to accommodate both sameness and difference in different contexts for different reasons. So too, our sexual harassment jurisprudence should accommodate both equality and autonomy conceptions of the norm (p.179) against sex-based discrimination. Typically equality and autonomy are viewed as being in tension with one another—but that is not the case here. Rather, each is incomplete without the other. To understand Title VII in this way requires that we position gender-based norms and stereotypes at the center of such a theory. Thus, instances of same-sex sexual harassment, just as instances of different-sex sexual harassment, violate Title VII where the conduct of a sexual nature serves to reinforce or perpetuate sexually subordinating gender norms—typically that women are inferior to men. So too, Title VII must include a proscription against the enforcement of gender orthodoxies, by sexual or other means. In either case, the fundamental question to be asked is “what is the sexual harassment doing?” In most different-sex cases this is an easy question to answer, as the conduct complained of so clearly reproduces and perpetuates larger cultural norms of women as both subordinate and sexually vulnerable to men. Thus, appropriate inferences and presumptions of discrimination may and should be drawn in most different-sex cases. In same-sex cases, however, important questions must be asked with respect to the ways in which unwelcome sexual conduct may be a tool in the enforcement or policing of gender norms and rules. Thus, if an Ann Hopkins-type woman is harassed, sexually or otherwise, by the female actors on Baywatch, she must be able to state a claim under Title VII—even though this conduct does not take place between people whose relationship is framed by structural sexual inequality and may not be motivated by desire.

In the end, the wrong of sexual harassment must consist of something more than that the conduct would not have occurred “but for” the sex of the target, that the conduct was sexual in nature, or that it was something men do to women. The “something more” I suggest is that we regard sexual harassment as a tool or instrument of gender regulation. It is a practice, grounded and undertaken in the service of hetero-patriarchal norms. These norms, regulatory, constitutive, and punitive in nature, produce gendered subjects: feminine women as sex objects and masculine men as sex subjects. On this account, sexual harassment is sex discrimination precisely because its use and effect police hetero-patriarchal gender norms in the workplace.

To successfully conceptualize same-sex sexual harassment as a form of sex discrimination requires, to my mind, that we understand sexual harassment to be a multivalent form of discrimination that includes notions of institutionalized gendered subordination as well as notions of gender-based autonomy or agency. It is these twin concerns—that of equality and autonomy—that must be accounted for in a sophisticated theory of the wrong of sexual harassment as a form of sex discrimination—whether between persons of different or same sexes.

(p.180) Notes

(1) . Katherine Franke, “What's Wrong with Sexual Harassment?” 49 Stanford Law Review 691, 771–72 (1997).

(2) . Kathryn Abrams, “The New Jurisprudence of Sexual Harassment,” 83 Cornell Law Review 1169, 1170 (1998).

(3) . Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986).

(4) . Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745, 752 (4th Cir.), cert. denied, 117 S. Ct. 70 (1996).

(5) . Anderson v. Deluxe Homes of PA, Inc., 131 F. Supp. 2d 637, 644 (M.D. Pa. 2001), quoting, Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990).

(6) . Some women have accused other women of sexual harassment, but these cases are relatively few when compared with the number of cases in which men objected to the treatment they received from other men.

(7) . 118 S. Ct. 998 (1998).

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

(9) . 118 S. Ct. 998, 1002–03 (1998).

(10) . Susan Estrich, “Sex at Work,” 43 Stanford Law Review 813, 819 (1991).

(11) . The notion that rape is a crime of lust persists today even in the highest echelons of law enforcement, notwithstanding longstanding critiques debunking such a notion. The Hate Crime Statistics Act (HCSA) mandates that the Attorney General collect data about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity. Pub. L. No. 101–275, 104 Stat. 140 (1990), codified at 28 U.S.C. § 534(b)(1). In 1995, Senator Paul Simon's office asked the FBI whether it would support the addition of gender to the HCSA. The FBI responded: “The inclusion of gender bias to the Hate Crime Statistics Act is not recommended at this time for several reasons, including the following: 1. A gender bias motivation would be very difficult to determine, e.g., is the crime of rape motivated by lust or hate? Police officers would have to explore the psyche of the offender to determine if hate was a motivating factor.” Letter from C. David Evans, Acting Assistant Director, Criminal Justice Information Services Division, U.S. Department of Justice, Federal Bureau of Investigation, to Honorable Paul Simon 4 (July 5, 1995).

(12) . John B. Pryor, “Sexual Harassment Proclivities in Men,” 17 Sex Roles 269 (1987).

(13) . John B. Pryor et al., “A Social Psychological Model for Predicting Sexual Harassment,” 51 Journal of Social Issues, 1 (1995).

(14) . Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” 1989 Chicago Legal Forum 139.

(15) . Ruth Colker, “Whores, Fags, Dumb-Ass Women, Surly Blacks, and Competent Heterosexual White Men: The Sexual and Racial Morality Underlying Anti-Discrimination Doctrine,” 7 Yale Journal of Law and Feminism 195 (1995).

(16) . Vicki Schultz, “Reconceptualizing Sexual Harassment,” 107 Yale Law Journal 1683 (1998).

(17) . Unrein v. Payless Shoe Source, Inc., 51 F. Supp. 2d 1195, No. 97-4158-RDR, 1999 WL 455455, at *9 (D. Kan. June 3, 1999).

(18) . Id.

(p.181)

(19) . Morris v. Oldham County Fiscal Court, 201 F.3d 784, 791 (6th Cir. 2000).

(20) . See for example, id. at 796–99 (Clay, J., dissenting in part); Duggins v. Steak 'N Shake, 2001 WL 92166, *6 (6th Cir. 2001).

(21) . Schmitz v. ING Securities, Futures & Options, Inc., 191 F.3d 456, No. 98–3007, 1999 WL 528024, at *3 (7th Cir., July 20, 1999).

(22) . Pascouau v. Martin Marietta Corp., 185 F.3d 874, No. 98–1099, 1999 WL 495621, at *1 (10th Cir. July 14, 1999); Thomas v. Henderson, 44 F. Supp. 2d 915, No. 98–71533, 1999 WL 252648, at *8 (E.D. Mich., Apr. 27, 1999); Webb v. Cardiothoracic Surgery Associates of North Texas, 139 F.3d 532 (5th Cir. 1998); Maddin v. GTE of Florida, Inc., 33 F. Supp. 2d 1027, 1032 (M.D. Fla. 1999).

(23) . Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237, 1250 (M.D. Ala. 2001) (italics supplied).

(24) . Gross v. Burggraf Construction Co., 53 F.3d 1531 (10th Cir. 1995).

(25) . Sechrist v. Wyandotte County/Kansas City, No. CIV.A. 98–2219-KHV, 1999 WL 450947, at *5 n.4 (D. Kan., June 22, 1999).

(26) . Ann Hopkins was denied partnership at Price Waterhouse due to the fact that she wasn't feminine enough in the eyes of the male partners who voted on her candidacy. They said she was “macho,” needed “a course at charm school,” and “should ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.’” Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989) (quoting defendant's exhibits and district court opinion, 618 F. Supp. 1109, 1117 (D.D.C. 1985)). The Supreme Court found that this conduct amounted to gender discrimination because “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Id. at 250.

Notes:

(1) . Katherine Franke, “What's Wrong with Sexual Harassment?” 49 Stanford Law Review 691, 771–72 (1997).

(2) . Kathryn Abrams, “The New Jurisprudence of Sexual Harassment,” 83 Cornell Law Review 1169, 1170 (1998).

(3) . Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986).

(4) . Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745, 752 (4th Cir.), cert. denied, 117 S. Ct. 70 (1996).

(5) . Anderson v. Deluxe Homes of PA, Inc., 131 F. Supp. 2d 637, 644 (M.D. Pa. 2001), quoting, Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990).

(6) . Some women have accused other women of sexual harassment, but these cases are relatively few when compared with the number of cases in which men objected to the treatment they received from other men.

(7) . 118 S. Ct. 998 (1998).

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

(9) . 118 S. Ct. 998, 1002–03 (1998).

(10) . Susan Estrich, “Sex at Work,” 43 Stanford Law Review 813, 819 (1991).

(11) . The notion that rape is a crime of lust persists today even in the highest echelons of law enforcement, notwithstanding longstanding critiques debunking such a notion. The Hate Crime Statistics Act (HCSA) mandates that the Attorney General collect data about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity. Pub. L. No. 101–275, 104 Stat. 140 (1990), codified at 28 U.S.C. § 534(b)(1). In 1995, Senator Paul Simon's office asked the FBI whether it would support the addition of gender to the HCSA. The FBI responded: “The inclusion of gender bias to the Hate Crime Statistics Act is not recommended at this time for several reasons, including the following: 1. A gender bias motivation would be very difficult to determine, e.g., is the crime of rape motivated by lust or hate? Police officers would have to explore the psyche of the offender to determine if hate was a motivating factor.” Letter from C. David Evans, Acting Assistant Director, Criminal Justice Information Services Division, U.S. Department of Justice, Federal Bureau of Investigation, to Honorable Paul Simon 4 (July 5, 1995).

(12) . John B. Pryor, “Sexual Harassment Proclivities in Men,” 17 Sex Roles 269 (1987).

(13) . John B. Pryor et al., “A Social Psychological Model for Predicting Sexual Harassment,” 51 Journal of Social Issues, 1 (1995).

(14) . Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” 1989 Chicago Legal Forum 139.

(15) . Ruth Colker, “Whores, Fags, Dumb-Ass Women, Surly Blacks, and Competent Heterosexual White Men: The Sexual and Racial Morality Underlying Anti-Discrimination Doctrine,” 7 Yale Journal of Law and Feminism 195 (1995).

(16) . Vicki Schultz, “Reconceptualizing Sexual Harassment,” 107 Yale Law Journal 1683 (1998).

(17) . Unrein v. Payless Shoe Source, Inc., 51 F. Supp. 2d 1195, No. 97-4158-RDR, 1999 WL 455455, at *9 (D. Kan. June 3, 1999).

(18) . Id.

(19) . Morris v. Oldham County Fiscal Court, 201 F.3d 784, 791 (6th Cir. 2000).

(20) . See for example, id. at 796–99 (Clay, J., dissenting in part); Duggins v. Steak 'N Shake, 2001 WL 92166, *6 (6th Cir. 2001).

(21) . Schmitz v. ING Securities, Futures & Options, Inc., 191 F.3d 456, No. 98–3007, 1999 WL 528024, at *3 (7th Cir., July 20, 1999).

(22) . Pascouau v. Martin Marietta Corp., 185 F.3d 874, No. 98–1099, 1999 WL 495621, at *1 (10th Cir. July 14, 1999); Thomas v. Henderson, 44 F. Supp. 2d 915, No. 98–71533, 1999 WL 252648, at *8 (E.D. Mich., Apr. 27, 1999); Webb v. Cardiothoracic Surgery Associates of North Texas, 139 F.3d 532 (5th Cir. 1998); Maddin v. GTE of Florida, Inc., 33 F. Supp. 2d 1027, 1032 (M.D. Fla. 1999).

(23) . Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237, 1250 (M.D. Ala. 2001) (italics supplied).

(24) . Gross v. Burggraf Construction Co., 53 F.3d 1531 (10th Cir. 1995).

(25) . Sechrist v. Wyandotte County/Kansas City, No. CIV.A. 98–2219-KHV, 1999 WL 450947, at *5 n.4 (D. Kan., June 22, 1999).

(26) . Ann Hopkins was denied partnership at Price Waterhouse due to the fact that she wasn't feminine enough in the eyes of the male partners who voted on her candidacy. They said she was “macho,” needed “a course at charm school,” and “should ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.’” Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989) (quoting defendant's exhibits and district court opinion, 618 F. Supp. 1109, 1117 (D.D.C. 1985)). The Supreme Court found that this conduct amounted to gender discrimination because “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Id. at 250.