When Men Harass Men: Is it Sexual Harassment?
CUNY School of Law
Temple Political & Civil Rights Law Review, Vol. 7, p. 395, 1998
Over the past few decades, the issue of workplace sexual harassment has finally entered into mainstream discourse, and is no longer limited to male-female relations. As sexual minorities are becoming more vocal demanding equal rights, people are beginning to recognize that the same type of sexual harassment in the workplace that has been perpetrated against women is being perpetrated against gay men and lesbians.
Unfortunately, allegations of same-sex harassment have, for the most part, been met with disfavor in the courts. Title VII makes it unlawful for an employer to discriminate on the basis of sex. The courts have struggled with whether same-gender sexual harassment can be motivated because of sex. Most courts have interpreted the word sex in its narrowest sense to mean biological sex, which is determined by a person's genitalia. Based on that interpretation, these courts will find a cause of action only where the conduct at issue was motivated by the employee's physically being male or female. Courts have either explicitly or by unspoken assumption singled out X and Y chromosomes as the sole determinants of a person's gender, failing to consider how the employee self-identifies or how society perceives and defines the gender role and performance of the employee.
The term sex embodies many interrelated factors, including chromosomes, genitalia, secondary sex characteristics, gender traits, and sexuality. Traditionally, each of these concepts was thought to embody duality - all people were thought to be either male or female (duality in chromosomes, genitalia, and secondary sex characteristics), masculine or feminine (duality in gender traits), and sexually attracted to only males or only females (duality in sexuality). A person's biological chromosomes and genitalia were used as the determinant of all the other factors. That is, a person with male genitalia was expected to act masculinely and to be sexually attracted to females, and vice versa.
When all five factors converge in one person, the courts are not called upon to grapple with all the ideas embodied in the term sex. Issues of sex, sexuality, and gender roles, however, are no longer as simple as they used to be. Reality suggests there is no intrinsic or stable sexual or gender identity. It is now abundantly clear that there is a spectrum of sexes, and gender roles, and a person's sexual identity is not always based on his or her biological organs.
By assuming that maleness and femaleness are two opposing, easily defined, and mutually exclusive categories, the courts perpetuate stereotyped distinctions between the sexes, and exclude from protection those people who are singled out for adverse treatment in the workplace based on their failure to conform to gender stereotypes. The result is confusing jurisprudence which has a disparate impact on sexual minorities. By defining sex restrictively as biological sex, courts have chosen the least relevant aspect of sex' as a determinant of whether a person has a cause of action under Title VII. This narrow interpretation of Title VII conflicts with its underlying purpose, failing to assure a work environment free of discriminatory ridicule for all people.
The Article posits that courts' narrow and simplistic reading of the statute ignores the reality that sexual harassment is based on power, not on sexual attraction. Power exists independently of biological sex. Men can be targets of sexual harassment for a variety of reasons - a man in a low level job can be a target of a female boss, and gender performance can reinforce certain assumptions about power. Based on socially constructed norms, certain masculine gender traits have come to be associated with power and success, while anything feminine has come to be devalued in the workplace. Therefore, anyone, male or female, who exhibits feminine characteristics can be a target for sexual harassment. The outdated assumption espoused by many courts that sexual harassment can only occur between men and women lacks insight into the depth of ways one person can assert power over another, the ubiquity of power relations within sexuality, and the complex relationships between sex, sexuality and power.
Title VII is a remedial statute that, under established rules of construction, should be interpreted broadly. Accordingly, courts should interpret because of sex in its broadest sense to mean not only biological sex, but also anything relating to sexual issues, behavior, anatomy, or identity, as long as the harassment implicates and exploits power imbalances between the sexes. This more flexible approach to Title VII will allow courts to shift the focus from the sex, gender or sexual preference of the victim, to the nature of the harassing conduct, the motivation behind it, and its effect on perpetuating gender imbalances and stereotypes in the workplace.
Number of Pages in PDF File: 22
Keywords: Sexual harassment, same sex sexual harassment, Oncale, sex, gender, discrimination, employment discrimination
JEL Classification: J71, K30Accepted Paper Series
Date posted: September 1, 2006
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