Reconceptualizing sexual harassment.

• Author: Schultz, Vicki

CONTENTS

1. THE PREVAILING PARADIGM

   1. The Sexual Desire-Dominance Paradigm

   2. Origins of the Paradigm

      1. Early Radical Feminist Ideas

      2. Early Quid Pro Quo Harassment Cases

   3. An Illustration from the Case Law

2. THE SEXUALIZATION OF THE HOSTILE WORK ENVIRONMENT

   1. The Supreme Court's Decision in Harris v. Forklift Systems

   2. Disaggregation in the Lower Courts

      1. Hostile Work Environment Versus Disparate Treatment

      2. "Sexual" Versus "Nonsexual" Conduct

   3. The Harms of Disaggregation

   4. Sexual Paternalism and the Unwelcomeness Requirement

   5. The McKinney Rule and Its Lack of Influence

3. THE INVISIBILITY OF GENDER AT WORK

   1. The Two-Tiered Structure of Causation

   2. Sexuality as a Bright-Line Test for Gender-Based Conduct?

   3. The Courts' Failure To Understand the Role of Work in

   Producing Gender Inequality

4. AN ALTERNATIVE ACCOUNT OF HOSTILE WORK ENVIRONMENT

   HARASSMENT: A COMPETENCE-CENTERED PARADIGM

   1. The Link Between Job Segregation and Hostile Work

      Environments

   2. The Competence-Undermining Function of Hostile Work

      Environment Harassment

   3. Reconceptualizing the Harassment of Women Workers

5. ADDITIONAL ADVANTAGES OF THE COMPETENCE-CENTERED

   ACCOUNT

   1. Revealing the Actionable Features of Male-on-Male

      Harassment

   2. Reducing the Risk of Prohibiting Benign Sexual Expression

6. CONCLUSION: TOWARD IMPLEMENTING THE NEW ACCOUNT

   It's a form of harassment every time I pick up a sledgehammer and that

   prick laughs at me, you know. It's a form of harassment when a journeyman

   is supposed to be training me and it's real clear to me that he does

   not want to give me any information whatsoever. He does not want me to

   be there at all .... They put me with this one who is a lunatic ... he's

   the one who drilled the hole in my arm .... It's a form of harassment

   to me when the working foreman puts me in a dangerous situation and

   tells me to do something in an improper way and then tells me, Oh,

   you can't do that! It's a form of harassment to me when someone takes

   a tool out of my hand and said, ... I'll show you how to do this, and

   he grabs the sledgehammer from my hand and he proceeded to try to show

   me how to do this thing ... you know, straighten up a post ... it's

   nothing to it, you just bang it and it gets straight .... It's a form

   of harassment to me when they call me honey and I have to tell them

   every day, don't call me that, you know, I have a name printed right on

   my thing.... Ah, you know, it's all a form of harassment to me. It's

   not right. They don't treat each other that way. They shouldn't treat

   me that way. It's a form of harassment to me when this one asks me

   to go out with him all the time. You know, all this kind of stuff.

   It's terrible.(1)

   How should we understand sex-based harassment on the job? Its existence is now part of the national consciousness. Over the past twenty years, feminists have succeeded in naming "sexual harassment" and defining it as a social problem.(2) Popular accounts abound: Newspapers, movies, and television programs depict women workers who are forced to endure sexual advances and decry the fact that these women must contend with such abuse.(3) The legal system, too, has recognized the problem. The Supreme Court, on two separate occasions,(4) has affirmed that workplace sexual harassment violates Title VII of the Civil Rights Act,(5) and the lower federal courts have created a massive body of doctrine detailing the law's protection. All the while, public awareness of legal rights has continued to develop, and workers have filed sexual harassment complaints in increasing numbers.(6)

   That feminists (and sympathetic lawyers) have inspired a body of popular and legal opinion condemning harassment in such a brief period of time is a remarkable achievement. Yet the achievement has been limited because we have not conceptualized the problem in sufficiently broad terms. The prevailing paradigm for understanding sex-based harassment places sexuality--more specifically, male-female sexual advances--at the center of the problem. Within that paradigm, a male supervisor's sexual advances on a less powerful, female subordinate represent the quintessential form of harassment.

   Although this sexual desire-dominance paradigm represented progress when it was first articulated as the foundation for quid pro quo sexual harassment, using the paradigm to conceptualize hostile work environment harassment has served to exclude from legal understanding many of the most common and debilitating forms of harassment faced by women (and many men) at work each day.(7) The prevailing paradigm privileges conduct thought to be motivated by sexual designs--such as sexual advances--as the core sex- or gender-based harassment.(8) Yet much of the gender-based hostility and abuse that women (and some men) endure at work is neither driven by the desire for sexual relations nor even sexual in content.

   Indeed, many of the most prevalent forms of harassment are actions that are designed to maintain work--particularly the more highly rewarded lines of work--as bastions of masculine competence and authority. Every day, in workplaces all over the country, men uphold the image that their jobs demand masculine mastery by acting to undermine their female colleagues' perceived (or sometimes even actual) competence to do the work. The forms of such harassment are wide-ranging. They include characterizing the work as appropriate for men only; denigrating women's performance or ability to master the job; providing patronizing forms of help in performing the job; withholding the training, information, or opportunity to learn to do the job well; engaging in deliberate work sabotage; providing sexist evaluations of women's performance or denying them deserved promotions; isolating women from the social networks that confer a sense of belonging; denying women the perks or privileges that are required for success; assigning women sex-stereotyped service tasks that lie outside their job descriptions (such as cleaning or serving coffee); engaging in taunting, pranks, and other forms of hazing designed to remind women that they are different and out of place; and physically assaulting or threatening to assault the women who dare to fight back. Of course, making a woman the object of sexual attention can also work to undermine her image and self-confidence as a capable worker. Yet, much of the time, harassment assumes a form that has little or nothing to do with sexuality but everything to do with gender. As the female welder quoted above put it, "Ah, you know, it's all a form of harassment to me.... They don't treat each other that way. They shouldn't treat me that way."(9)

   In spite of the female welder's intuitive understanding that all these actions are gender-based forms of harassment, there has been little or no recognition of such a perspective in the law. Most feminists and other scholars sympathetic to working women have either explicitly advocated or implicitly accepted the prevailing sexual desire-dominance paradigm. This is not surprising, for feminists played a prominent role in creating it. The focus on sexual conduct emerged from an early radical feminist critique of heterosexual relations as a primary producer of women's oppression. These early feminists saw rape as a central metaphor for men's treatment of women, and they compared sexual harassment to rape.(10) More recently, feminist legal scholars have analogized the law governing workplace harassment to rape law, criticizing harassment law for its disregard of women's perspectives on sexuality and for its failure to appreciate the unique harm inherent in the fact that harassment is a sexual violation.(11) Just as feminist analyses have conceived of harassment as sexual abuse, most scholars who have addressed same-sex harassment have characterized it in sexualized terms, analogizing same-sex harassment to heterosexual sexual advances as an argument for legal regulation.(12) Thus, even the most critical accounts of harassment law, like other accounts of workplace harassment,(13) have assumed a sexuality-centered perspective that portrays sexual advances and other sexually oriented conduct as the core of the problem.(14) They are rooted in the prevailing paradigm.(15)

   This Article challenges the sexual desire-dominance paradigm. A comprehensive examination of Title VII hostile work environment harassment cases demonstrates the paradigm's inadequacy. Despite the best intentions of its creators, the paradigm has compromised the law's protection. Principal among its drawbacks, the paradigm is underinclusive: It omits--and even obscures--many of the most prevalent forms of harassment that make workplaces hostile and alienating to workers based on their gender. Much of what is harmful to women in the workplace is difficult to construe as sexual in design. Similarly, many men are harmed at work by gender-based harassment that fits only uneasily within the parameters of a sexualized paradigm. The prevailing paradigm, however, may also be overinclusive. By emphasizing the protection of women's sexual selves and sensibilities over and above their empowerment as workers, the paradigm permits--or even encourages--companies to construe the law to prohibit some forms of sexual expression that do not promote gender hierarchy at work. The focus of harassment law should not be on sexuality as such. The focus should be on conduct that consigns people to gendered work roles that do not further their own aspirations or advantage.

   The Article proceeds as follows. Part I begins by describing the sexual desire-dominance paradigm for conceptualizing hostile work environment harassment. It traces the roots of the paradigm in early feminist thought and in the reasoning of early cases. As Part I shows, the major jurisprudential barrier to recognizing a Title VII cause of action for quid pro quo harassment was some courts' initial reluctance to hold that supervisors' demands for sexual favors occurred...