What is a Gender Norm and Why Should We Care? Implementing a New Theory in Sexual Harassment Law.

• Author: Epstein, Linda B.

Many scholars have recently suggested a reconceptualization of sexual harassment as gender harassment. In this note, Linda Epstein examines some of their theories and concludes that a unified theory of gender harassment based on gender norms should indeed be adopted by the courts. Focusing on cases involving male-female sexual harassment, Epstein argues that this approach is superior to current judicial practice because it encompasses nonsexual but sex-based harms to women. Epstein then proffers a practical definition of what constitutes a gender norm: The adoption of such a definition by the courts would enable them to successfully implement a gender-based theory that includes harms beyond those that are "sexual" in nature.

INTRODUCTION

The Supreme Court's 1998 term was a banner one for sexual harassment law. After years of silence, the Court decided four major cases dealing with same-sex harassment,(1) teacher-student harassment,(2) and employer liability for supervisory behavior.(3) These decisions did much to clarify issues of liability in sexual harassment cases, and provided welcome guidance to what was a rather murky area of the law.(4)

However helpful the Court's decisions will be in terms of how the law will work, one unanswered question of substance remains as troublesome as ever: why same-sex harassment constitutes sex discrimination. The majority's opinion in Oncale, iterating that same-sex harassment is sex discrimination if it occurs "because of sex,"(5) fails to resolve it. This conclusory statement says only that same-sex harassment is actionable: It does not tell us why same-sex harassment constitutes sex discrimination, just as the Court's landmark 1983 decision in Meritor Savings Bank v. Vinson(6) failed to explain precisely why male-female sexual harassment constitutes sex discrimination.(7) If we could answer the question definitively, we would go far toward implementing the vision of Title VII referenced by the Court in Meritor: the vision that in enacting Title VII, Congress intended "`to strike at the entire spectrum of disparate treatment of men and women' in employment."(8)

Instead, this analytical weakness in the current doctrine is such that several scholars have recently declared that a new conceptualization of sexual harassment as gender harassment is necessary. L. Camille Hebert has called for the Equal Employment Opportunity Commission (EEOC) to reissue its withdrawn guidelines on gender harassment,(9) claiming that sexual harassment is a subset of gender harassment and that both forms of harassing conduct are properly covered by one set of guidelines,(10) Miranda Oshige has argued that the hostile work environment cause of action be "reconfigured simply as gender-based disparate treatment."(11) Ruth Colker has noted that current doctrine has led to a "narrowing" of Title VII(12) claims and points out that such a narrowing is "unwarranted when one remembers that antidiscrimination law promises to protect women from all forms of gender-based discrimination, not simply discrimination of a sexualized nature."(13) Katherine Franke has suggested that sexual harassment is gender-based discrimination because it is a "technology of sexism" that "perpetuates, enforces, and polices a set of gender norms that seek to feminize women and masculinize men."(14) And Vicki Schultz has echoed these sentiments while also calling attention to the role played by sex segregation in the workplace in her gender-based, work "`competence-centered' paradigm" of hostile environment harassment.(15)

But this recent focus on gender harassment rather than sexual harassment raises questions that must be answered before courts can implement such concepts in Title VII cases. For example, why should sexual harassment be reconceptualized as gender harassment? If such a reconceptualization takes place, what standards will courts use to decide a violation has occurred? If the courts rely on a gender norm-based theory of harassment, what constitutes a gender norm? Is such a standard too vague to be workable, or do judicial precedent and social science provide guidelines to follow? Can the gender norm concept be expanded to include both sexual harassment and other forms of sex-based harassment? If so, is such an expansion desirable, or should sexual harassment and gender harassment be treated as separate and distinct harms, differing not only in degree but in kind?

This note explores answers to these questions and suggests a course of action for courts to follow. Building upon the gender-focused theories of Franke, Schultz, and others, this note argues for the adoption of a gender norm-based conception of sex discrimination that encompasses nonsexual, sex-based harms as well as those currently actionable as sexual harassment, and proffers a practicable standard defining the enforcement of gender norms. More specifically, this note offers a definition to guide courts in understanding when a gender norm has been enforced, and thus, when discrimination has occurred. The definition is as follows: A gender norm is enforced when harassment, either sexual or sex-based in nature, employs negative descriptive or normative gender stereotypes of what women are or should be.(16) Thus, workplace harassment that sexualizes, maternalizes, or domesticizes a female co-worker or employee, or otherwise indicates that women do not belong in "the marketplace and the world of ideas,"(17) is discrimination based on sex that may trigger a hostile environment claim under Title VII.

Part I describes some recent theories calling for a "reconceptualization of sexual harassment as gender harassment,"(18) It also discusses cases that have recognized a gender-based, hostile environment claim. Part II examines the potential weaknesses of using a discrimination theory based on gender norms, including the question of whether using a single theory to cover both sexual harassment and sex-based harassment is beneficial. Part III cites judicial precedent and social science findings to explain how a gender-based theory of harassment can be defined in a manner that is practicable for courts and proffers that definition. The note concludes with some thoughts on why a gender-based theory should be adopted.

1. SEEING SEXUAL HARASSMENT AS GENDER DISCRIMINATION

   In 1980, the EEOC issued its Guidelines on Discrimination Because of Sex, defining sexual harassment as we now know it.(19) Thirteen years later, the Commission issued Proposed Guidelines on Harassment Based on Race, Color, Religion, Gender, National Origin, Age or Disability.(20) Although these guidelines were withdrawn the following year,(21) the fact that the EEOC conceived of two sets of guidelines is a significant indicator that the agency saw a fundamental difference between discrimination based on sex and discrimination based on gender. It explained this distinction in its proposed guidelines for harassment based on gender, stating that "[s]exual 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."(22)

   But several commentators disagree with the EEOC's assessment,(23) and suggest that sexual harassment and other forms of harassment, specifically gender harassment, are not separate and distinct. Rather, the two forms of harassment are intimately connected, with sexual harassment generally conceived of as a subset of gender discrimination. L. Camille Hebert, for example, theorizes that the proposed guidelines on gender harassment should supplant the older guidelines based on sexual harassment because most instances of the latter fall under the rubric of conduct prohibited in the gender harassment guidelines.(24) Hebert analyzes the harassment at issue in several cases, finding that sexualized conduct and insults such as "whore"(25) and "bitch"(26) clearly meet the EEOC criteria of conduct that "denigrates or shows hostility"(27) based on gender. In determining that gender harassment encompasses sexual harassment, and that therefore one standard should encompass both, Hebert states the following:

   The real question is whether the issues of human interaction involved in sexual harassment are different in kind from the issues of human interaction involved in other forms of discriminat[ion].... Gender harassment ... differs from sexual harassment ... only in the choice of weapon used. Both types of activity are motivated by the same purpose--to inform women of their place and role in the workforce--and have similar effects--to offend, humiliate, and embarrass.(28) Like Hebert, Miranda Oshige attacks the doctrinal distinction between sexual harassment and gender harassment, although she argues for a new disparate treatment standard that would apply to both sexual and nonsexual harassment.(29) According to Oshige, the problem with the EEOC's guidelines on sexual harassment and courts' interpretations of those guidelines is that they reveal "a judicial assumption that society generally desires, and therefore that courts should tolerate, flirtation and other sexually based interactions ... in the workplace."(30) Oshige claims this assumption led to the development of the unwelcomeness and pervasiveness tests and thereby created a standard that is unjustifiably higher than the standard used in other Title VII discrimination claims.(31) She concludes that this different and higher standard is unfair, arguing that any disparate treatment of women, whether sexual or sex-based, should be accorded the same review under antidiscrimination law.(32) However, Oshige does allow that differences might exist in the severity of harassment manifested in sexual versus sex-based conduct, and proposes that those differences be reflected in damages awarded rather than in a failed harassment claim.(33)

   While Hebert and Oshige criticize the different...