Same-Sex Sexual Harassment: Subverting the Heterosexist Paradigm of Title VII
25 Pages Posted: 13 Oct 2010
Date Written: 1995
This article argues that the proper starting point is to provide protection for gay men and lesbians against discrimination and harassment. Until there is such protection, any attempt to use Title VII to regulate same-sex sexual harassment will intensify the privileging of one kind of same-sex interaction over another: straight subordinates will be protected from gay supervisors, while gay subordinates will not be protected from straight supervisors. The result will be increased tolerance not for expressions of gay and lesbian sexuality, but for expressions of heterosexism and homophobia in the workplace.
Part I of this article examines the development of the sexual harassment cause of action as a form of discrimination on the basis of gender. It argues that same-sex sexual harassment does not fit within the theory of traditional sexual harassment. Part II chronicles the courts’ historical exclusion of discrimination on the basis of sexual orientation from Title VII’s coverage. Part III analyzes the cases that have addressed the issue of same-sex sexual harassment. Part IV examines other areas of sexuality that the state has the power to regulate. The article concludes that applying Title VII to same-sex sexual harassment would rely on and perpetuate society’s commitment to regulate, if not to prohibit, any “abnormal” expressions of sexuality.
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