"Because of ... sex": rethinking the protections afforded under Title VII in the post-Oncale world.

• Author: Kirshenbaum, Andrea Meryl

When the Supreme Court decided Oncale v. Sundowner Offshore Services, Inc., (1) it opened the door to much more than suits involving same-sex sexual harassment. In holding that Title VII's prohibition of discrimination "because of ... sex" (2) protects men and women from same-sex sexual harassment, (3) the Supreme Court's opinion in Oncale has brought about a fundamental reassessment by the federal courts as to what qualifies as sexual harassment under Title VII. This re-conceptualization of the protections afforded by Title VII mainly has taken place in cases brought by men alleging same-sex sexual harassment. (4) However, its impact is reshaping traditional sexual harassment law as well. (5)

Until the Supreme Court's decision in Oncale, sexual harassment law in the United States slowly had developed to protect individuals, in most cases women, from sex-based discrimination in the workplace. What started out as a law narrowly applied to prohibit women from being shut out of certain segments of the workforce because of their sex soon grew to prevent women from being subjected to sexual advances in order to keep their jobs, receive promotions, or obtain raises. (6) Then, in 1986, in Meritor Savings Bank, FSB v. Vinson, the Supreme Court interpreted Title VII to prohibit the creation of a hostile working environment "because of ... sex." (7) Three years later in Price Waterhouse v. Hopkins, the Supreme Court struck at employment discrimination directed at women for failing to comply with gender-based stereotypes of femininity. (8)

The employment discrimination construct created by the Supreme Court and the lower federal courts drew on not only the language of Title VII's prohibition of discrimination "because of ... sex," but it also incorporated a societal understanding of the challenges facing women in the workplace, especially in traditionally male-dominated professions. (9)

While prior to Oncale the Supreme Court had recognized that Title VII prohibited discrimination in the terms and conditions of employment against men as well as women, (10) it had not addressed whether men could bring claims of hostile environment sexual harassment. Furthermore, since most cases conformed to the traditionally challenged type of discrimination or harassment--a woman seeking relief from a male supervisor or co-worker--during the early development of sexual harassment law, the courts rarely were challenged to apply the traditionally developed employment discrimination construct in other contexts. And then came same-sex sexual harassment cases and Oncale to expose the muddy doctrinal waters.

In recognizing a cause of action for same-sex sexual harassment, the Supreme Court in Oncale acknowledged the viability of applying sexual harassment jurisprudence beyond the traditional employment discrimination construct in which it was developed. (11) However, in doing so the Supreme Court created a tremendous challenge for the lower federal courts and failed to provide them with guidance as to the contours of this new cause of action. Furthermore, the Oncale opinion--while finding that same-sex sexual harassment can qualify as discrimination "because of ... sex"--did little to articulate the meaning of the "because of ... sex" requirement. Moreover, its dicta seemed to signal a more constrained interpretation of "because of ... sex" than the Court had espoused in its previous sexual harassment jurisprudence.

Therefore, one must ask whether the Oncale Court not only expanded the scope of Title VII to permit claims of same-sex sexual harassment, but concomitantly contracted its interpretation of "because of ... sex" to limit the ability of all victims of sexual harassment to seek redress under Title VII. Or, alternatively, did the Supreme Court set forth a more conservative application of traditional sexual harassment law to cases of same-sex sexual harassment, many of which involve allegations of gender stereotyping against men who are perceived to be homosexual or who otherwise fail to conform to societal notions of masculinity? I argue that in its attempt to fit the proverbial square peg into a round hole--that is, to apply the framework created by the traditional employment discrimination construct developed in the context of male-on-female sexual harassment to cases mainly brought by men against other men alleging gender stereotyping--the Supreme Court's Oncale opinion, whether consciously or not, has articulated a new, more constrained interpretive paradigm for analyzing the "because of ... sex" language in Title VII.

Oncale and its progeny demonstrate that the assumptions underlying the traditional employment discrimination construct can no longer be relied upon to conceptualize the full panoply of sexual harassment and discrimination actionable under Title VII. Scholars and the federal courts must theorize the "because of ... sex" requirement anew in order to meet the challenge created by the Supreme Court's opinion in Oncale.

This Article seeks to explore the current doctrinal framework for addressing sexual harassment claims in the post-Oncale world and to offer ways in which to theorize the "because of ... sex" requirement. In Part I, I will briefly set forth the development of the traditional employment discrimination construct in the context of male-on-female discrimination and harassment by analyzing the Supreme Court's sexual harassment jurisprudence. Part II will analyze the Supreme Court's opinion in Oncale and will highlight the potential impact of that opinion to the traditional construct. Part III will then discuss the decisions of the lower federal courts post-Oncale and analyze how they have struggled to harmonize the traditional employment discrimination construct with the language of the Supreme Court in Oncale. Part IV offers a conceptual analysis of the "because of ... sex" requirement post-Oncale.

1. TITLE VII AND THE ARTICULATION OF THE TRADITIONAL EMPLOYMENT DISCRIMINATION CONSTRUCT

   1. "because of ... sex": The First Time Around

      Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer 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 ... sex." (12) As the Supreme Court recognized in Meritor, the word "sex" was added to Title VII on the floor of the House of Representatives. (13) This addition was proposed by Representative Howard Smith of Virginia as a means of preventing the enactment of Title VII. (14) After little debate on the amendment, it passed 168-133 and became law with the passage of Title VII. (15) Therefore, "we are left with little legislative history to guide us in interpreting the Act's prohibition against discrimination based on 'sex.'" (16) More than forty years after its enactment, the federal courts continue to struggle with the meaning of this proscription.

      As Katherine Franke explains, "[t]he fact that sexual harassment is a sexually discriminatory wrong is not a legal conclusion necessarily revealed in the text of Title VII." (17) The Supreme Court in Meritor extended the protections afforded under Title VII to cases involving hostile environment sexual harassment, reasoning 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." (18) While the Court in Meritor specifically noted the lack of legislative history to guide it in its interpretation of the "because of ... sex" language of Title VII, it did not attempt to untangle the meaning of that phrase. (19) Nor did the Court attempt to theorize why the wrong of sexual harassment violated the prohibition against discrimination "because of ... sex."

      The Court cited two bases to support its conclusion in Meritor that Title VII protected the plaintiff from hostile environment sexual harassment. First, the Court pointed to the text of Title VII, and explained, "[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." (20) Second, the Court relied upon the Guidelines issued by the EEOC in 1980 that prohibited sexual harassment as unlawful sex discrimination under Title VII. (21)

      In support of its conclusion that hostile environment sexual harassment constituted actionable sex discrimination under Title VII, the Court cited to the Eleventh Circuit's opinion in Henson v. City of Dundee. (22) In Henson, the Eleventh Circuit held that "under certain circumstances the creation of an offensive or hostile work environment due to sexual harassment can violate Title VII irrespective of whether the complainant suffers tangible job detriment." (23) The Supreme Court in Meritor relied upon the Eleventh Circuit's conceptualization of the wrong of sexual harassment, quoting Henson for the proposition that:

      Sexual 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. (24)

      A review of the contours of Meritor reveals that the current difficulty in analyzing and theorizing the "because of ... sex" requirement of Title VII can, in part, be attributed to the failure of the Supreme Court to create a doctrinal underpinning for the hostile environment sexual harassment cause of action at its inception. While the Court clearly identified sexual harassment as a wrong covered by the remedial provisions of Title VII...