Simulated Sodomy and Other Forms of Heterosexual 'Horseplay:' Same-Sex Sexual Harassment and The Myth of the Gender Monolith Before and After Oncale
CUNY School of Law
Hilary S. Axam
Yale Journal of Law & Feminism, Vol. 11, p. 155, 1999
This article which deals with same-sex sexual harassment after the Supreme Court's recent decision in Oncale v. Sundowner Offshore Services. The Article examines the nature of the conduct at issue in many same-sex sexual harassment cases and posits that this conduct, in its reliance on gender-based stereotypes and norms, its focus on the target's genitalia and other sex-based physical attributes, and its enactment of scenarios of sexual conquest, domination, exploitation and abuse designed to impart the harasser's sexual potency and the target's sexual vulnerability, demeans and intimidates the target in a manner that directly implicates his masculinity and status as a man. Therefore, we conclude, such conduct is based on the target's sex.
Despite the striking similarities between these forms of conduct directed at male targets and the conduct directed at female targets, and despite the similar impact of this conduct on the target's working environment, the courts have analyzed this conduct in a manner that differs markedly from the analysis in the opposite-sex context. In contrast to the opposite sex cases, which consistently recognize various distinct but interrelated aspects of the target's projected and perceived sex as elements of her protected "sex" within the meaning of Title VII, many of the same-sex cases tend to disregard the subtleties and complexities inherent in the notion of a person's sex, and instead have reverted to a simplistic, monolithic conception of the term which construes "sex" as strictly coterminous with biological sex. As a result of the artificially constrained notions of "sex" which the courts have formulated and applied in the same-sex cases, the jurisprudence in this area of the law is riddled with inconsistencies.
The Oncale decision establishes that conduct is not excluded from the purview of Title VII's "because of . . . sex" language merely because the harasser and the target are of the same sex. Although the Court resolved some of the conflicts among the lower courts, it did not elucidate the parameters of that language or articulate standards for identifying conduct that satisfies it, leaving unresolved numerous tensions and contradictions that had emerged in the lower courts. We ultimately argue that the lower courts must eschew the simplistic, monolithic conception of the term "sex" which had emerged in the pre-Oncale jurisprudence and which Oncale accepted uncritically, and must begin to grapple with the more complex significance of an individual's sex and the myriad ways in which it affects that individual's interactions with others in the workplace and in the broader society, and thus to move toward a formulation of the notion of "sex" which comports with the broader jurisprudence and underlying policies of Title VII.
Number of Pages in PDF File: 90
Keywords: Oncale, sexual harassment, same-sex sexual harassment, Title VII
JEL Classification: K30Accepted Paper Series
Date posted: September 1, 2006
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