"Hostility to the presence of women": why women undermine each other in the workplace and the consequences for Title VII.

• Author: Mizrahi, Ramit

1. USING HARASSMENT LAW TO COMBAT FEMALE-ON-FEMALE WORKPLACE HOSTILITY

   When a woman harasses a female coworker out of competitiveness or jealousy, can such harassment be sex-based? Can it give rise to a sexual harassment hostile work environment claim? This Note argues that the answer to both questions is yes because, in many instances of female-on-female harassment, women in the workplace are undermining each other as women. Moreover, female-on-female harassment is often created by sex segregation and discrimination in the workplace, and falls squarely under the coverage of Title VII of the Civil Rights Act of 1964.

   Title VII prohibits an employer from discriminating against employees based on race, color, religion, sex, or national origin. It states, in relevant part:

   It shall be an unlawful employment practice for an employer-- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. (1) When courts began to interpret Title VII, they recognized two main claims: those involving disparate treatment and those involving disparate impact. Disparate treatment, the most easily recognizable form of discrimination, involves any instance in which an employer intentionally treats an employee differently with respect to terms, conditions, or privileges of employment because of her race, color, religion, sex, or national origin. (2) Simple disparate treatment claims deal with tangible employment actions--actions that create "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." (3) Courts also recognize systemic disparate treatment, in which a class of people is affected by discriminatory policies or practices. (4) In contrast, disparate impact claims reach "employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." (5)

   Hostile work environment claims initially emerged as a variation of disparate treatment, as courts established that workers could be subject to intentional discrimination even when their employers did not take tangible job actions against them. (6) The first case to recognize a hostile work environment claim was Rogers v. EEOC, decided by the Fifth Circuit in 1971. (7) In Rogers, a Latina employee working in an optometrist's office claimed discrimination based on national origin because her employer segregated patients by ethnicity. The circuit court found that the employer had violated Title VII, despite the fact that no tangible job action was taken, because "the phrase 'terms, conditions, or privileges of employment' in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination." (8)

   Courts later extended this reasoning to sex-based hostile environment claims. (9) They had little difficulty drawing parallels between racial and sexual harassment, as in Henson v. City of Dundee, where the Eleventh Circuit explained that

   [s]exual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets. (10) The Supreme Court quoted this language in Meritor Savings Bank v. Vinson, its first sexual harassment case, holding that a plaintiff could establish a violation of Title VII by proving that she was subjected to a hostile or abusive work environment because of her sex. (11) Recognizing the conduct as a form of disparate treatment, the Court stated that "[t]he phrase 'terms, conditions, or privileges of employment' evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment" (12) and that Title VII was therefore "not limited to 'economic' or 'tangible' discrimination." (13) Since Vinson, the Supreme Court has decided four other sexual harassment cases through which it has laid out the elements necessary for a plaintiff to prevail on her claim. (14) In order to succeed in a sexual harassment suit, a plaintiff must prove that

   (1) she was a member of a protected group; (15)

   (2) she was subject to unwelcome behavior; (16)

   (3) this behavior was "because of ... sex"; (17)

   (4) the harassing conduct was "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment'"; (18) and

   (5) the employer should bear responsibility for the harassing conduct. (19)

   The 1990s saw renewed academic interest in sexual harassment law, as a number of scholars began retheorizing its purpose and reach. Professor Anita Bernstein, for instance, argued that the harm of sexual harassment was not that it was sexual, but rather that it was a form of disrespect. (20) Professor Katherine Franke explained that sexual harassment was a "technology of sexism" used to construct and perpetuate gender roles. (21) Similarly, Professor Kathryn Abrams contended, in her article The New Jurisprudence of Sexual Harassment, that the true harm of sexual harassment was its perpetuation of male power and masculine norms in the workplace. (22) She emphasized the need for "an understanding of sexual harassment that is explicitly, paradigmatically plural" because "women's inequality [is] the product of many intersecting motives, constructions, and modes of treatment." (23)

   Like some of her colleagues, Professor Vicki Schultz portrayed harassment as a means to subordinate women in the workplace. Yet in her article Reconceptualizing Sexual Harassment, she advanced the analysis one step further, recognizing that by focusing on the sexualized behaviors in hostile work environment claims, many courts were failing to recognize nonsexualized but sex-based forms of harassment. (24) Schultz revealed how men use harassment--both sexualized and nonsexual--as a tool to undermine women's competence, drive them out of male-dominated jobs, and keep them in their place in female-dominated jobs. (25) Thus, she argued, courts should center their analysis on the competence-undermining impact of harassment in order to reconnect sexual harassment law to its original mission of fighting sex discrimination. (26)

   As Schultz and her colleagues contemplated the harm of sexual harassment, some also debated whether--and if so, how--Title VII should cover same-sex harassment. (27) The circuits were split over whether same-sex harassment should be actionable. (28) The Supreme Court resolved this issue in 1998 in Oncale v. Sundowner Offshore Services, Inc., in which it explicitly established that same-sex harassment is actionable. (29) The Court further recognized that the "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." (30)

   In so doing, Oncale specifically opened the door for female-on-female harassment claims that, though not necessarily sexual, are nonetheless based on sex. The Oncale Court hypothesized that "[a] trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace." (31) Despite this language, no legal scholarship has yet grappled with nonsexualized female-on-female behaviors as sexual harassment. Instead, most of the post-Oncale sexual harassment scholarship has centered on two primary questions: (1) How should the lower courts deal with male-on-male harassment; (32) and (2) how will Oncale affect gay men and lesbians, particularly as the targets of harassment? (33) Thus, while the public and scholars alike remain captivated by male-on-male harassment, (34) nonsexualized female-on-female harassment remains invisible as well as undertheorized.

   Building on the key insights of the theorists discussed above, this Note argues that courts should recognize female-on-female hostility as a form of sexual harassment, and that such behavior, when because of sex, can satisfy the doctrinal elements necessary to prove sexual harassment as recognized by the Supreme Court. I especially heed Professor Schultz's call to interrogate the role of nonsexualized gender hostility as a barrier to women's advancement in the workplace. (35) This Note also expands Professor Schultz's account of how sexual harassment stems from job segregation, (36) and elaborates upon the notion of "hostility to women" identified in Oncale by focusing on the ways in which women are harassed by other women as a result of the dynamics created by sex segregation. Structural factors such as segregation lead to an environment in which women are more likely to undermine each other. (37) By holding employers liable, courts can protect women from female-on-female harassment and encourage employers to prevent it.

   In Oncale, the Supreme Court did not elaborate what "general hostility to the presence of women" would look like. But this much is apparent...