D. Forcing the Closet Door Open
III. Distracting from Discrimination
In effect, in same-sex harassment cases, liability turns on whether a harasser identifies as gay. This doctrine protects the stability of heterosexual marital unions while punishing expressions of nonheterosexual identity or desires that may threaten a plaintiff's heterosexuality. This is not simply because the doctrine requires
"credible evidence that the harasser was homosexual.""3 It results even in cases in which courts refuse to determine the harasser's sexual-orientation status, and ask instead whether the harasser desired the plaintiff.4' These disparate results are part and parcel of the doctrine's focus on desire. This should be troubling for anyone concerned about gay rights or queer theories. But what about those whose concern is sex discrimination? Some may argue that the presumption that desire fulfills the "because of sex" requirement for a sexual harassment claim is necessary to accomplish the aims of sex discrimination law. Analyzing this argument requires a closer look at the harms that sexual harassment law is intended to address. This Part examines theories of the harm of sexual harassment, and argues courts and lawyers should abandon the presumption that desire is a proxy for sex discrimination."
443. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
444. See, e.g., Dick v. Phone Directories Co., 397 F.3d 1256 (10th Cir. 2005). For discussion of Dick, see supra Part II.C.
445. Many people consider the harm of sexual harassment to be something other than discrimination against men or women. Because sexual harassment law is generally grounded in Title VII's prohibition on sex discrimination, I do not discuss these theories at length. I am skeptical of these views and the legal rules they would require for reasons beyond the scope of this Article. But due to the fact that these alternative accounts of the harm of harassment may ground state laws and employer policies and may lurk behind the outcomes in federal cases, it is worth sketching out my bases for skepticism here.
Some consider sexual harassment harmful based on generalized disapproval of sexual desire, particularly when expressed outside of traditional marriage and the home. See Rubin, supra note 28, at 278. I am skeptical of these theories because, as Professor Martha Nussbaum has described, projective disgust at sexual desire has operated in the service of group subordination in many eras and contexts. MARTHA NUSSBAUM, HIDING FROM HUMANITY:
DISGUST, SHAME AND THE LAW 107-14 (2006).
Others consider the harm of sexual harassment to be the threat that sexuality in the workplace poses to productivity. Professor Vicki Schultz has demonstrated how corporate
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This Part will not offer a singular normative theory of the harm of harassment. It is beyond the scope of this Article to defend a position on what theory or combination of theories, and what corresponding set of legal rules and presumptions, would best accomplish the statutory purpose. Rather, I argue that under any defensible theory, the focus on sexual orientation and desire distracts from sex discrimination, and precludes alternative legal presumptions that might expose whether harassment is sex discrimination. This results from what anthropologist Gayle Rubin has described as the
"fallacy of misplaced scale" in which "[s]exual acts are burdened with an excess of significance."" When desire is treated as a proxy for discrimination, same-sex desire and its threat to the plaintiff's heterosexuality become seen as the principal harms, thereby displacing discrimination. This Article's claim is that sexual orientation and desire are not adequate proxies for discrimination in sexual harassment law. Although this Article criticizes cases for how they analyze evidence of sexual desire, it does not take a position on how any particular sexual harassment case should be resolved, because that question ultimately depends on one's normative theory of harassment.
For purposes of this discussion, I group views on why sexual harassment is sex discrimination into three perspectives: (1) sexual domination, (2) gender disadvantage, and (3) sex differentiation. This taxonomy of theories is a stylized one, intended for purposes of analysis of whether the presumption that desire is discriminatory is necessary to target the harm of sexual harassment. It is not intended for all purposes. It glosses over overlaps among, internal divisions within, and complications related to these three theories that may be
managers have enlisted this view of harassment in deeply troubling ways: to fashion the workplace into a sterile site of production rather than a potential site of citizenship and community, to enforce sexual conformity, and to undercut gender equality. See Vicki Schultz, The Sanitized Workplace, 112 YALE L.J. 2061, 2067-72 (2003).
Some regard the fundamental harm of sexual harassment not to be discrimination against men or women, but rather, disrespect of any worker. See Anita Bernstein, Treating Sexual Harassment with Respect, 111 HARV. L. REV. 445, 452 (1997) ("Hostile environment sexual harassment ...is a type of incivility ...or disrespect."). My view is that, in the U.S.
context, a legal rule based on this perspective is likely to occlude sex discrimination and strain the political will for any antiharassment projects. See Clarke, supra note 28, at 1252-65.
446. Cf Kathryn Abrams, Postscript, Spring 1998: A Response to Professors Bernstein and Franke, 83 CORNELL L. REV. 1257, 1258, 1267 (1998) (arguing for "a theory that directs attention specifically to the multiplicity and variability of the dynamics that characterize sexual harassment").
447. Rubin, supra note 28, at 278-79.
596 [Vol. 63:525
important in other contexts. Additionally, legal rules and presumptions that flow from one theory may be consistent with or find support in the other theories.
The following sections will describe each theory of the harm of harassment and will argue that the preoccupation with desire is a distraction from that harm in each case. Each section will then turn to what sexual harassment doctrine would look like, from each normative perspective, if courts were to stop searching for sexual orientation and sexual desire, and instead adopt other presumptions related to what types of harassment are discriminatory. Figure 2 lays out the various theoretical perspectives on why sexual harassment is discrimination because of sex, the paradigmatic story of sexual harassment in each case, and a nonexhaustive list of ways in which plaintiffs might establish causation without recourse to evidence regarding a harasser's desires or orientation.
Figure 2. Proving Causation in Sexual Harassment Cases Without Desire or Sexual Orientation
1. Unwanted sexual
Sexual abuse in the touching
Sexual Domination .workplace (Meritor v. 2 udpoqosxa
extortion
Vinson)3. Threats of sexual
violence
1. Admissions of sex
Exclusion based on stereotyping
2. Sex segregation or gendered stereotypes and
Gender Disadvantage s stratification
structures (Harris v. Forklift 3 aasetptnl
Systems)3. Harassment patently
degrading to women or men
1. Comparator evidence 2. Counterfactual Differential treatment of admissions (for Sex Differentiation men and women (Oncale v. example, that plaintiff
Sundowner) would not have been
hazed had he been a
woman)
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