Storrow, Allegations of Same-Sex Sexual Harassment After Oncale: Defining the Boundaries of Actionable Conduct, 47 AM. Understanding why liability for sexual harassment may turn on sexual orientation requires some background on the development of the doctrine of sexual harassment.
Essentializing Sexuality
Conflating Sexual Orientation, Desire, and
Oncale did not consider his three cases to be exhaustive, and some districts have recognized same-sex harassment as "sexual" based on other theories. because of sex." 43.
Reductive Definitions of Sexual Orientation
- Self-Identification
- Reputation
- Sexual Behavior
- Desire
See SAVIN-WILLIAMS, supra note 29, at 30 (“Members of the younger generation doubt that their sexual orientation can be reduced to either homosexual or bisexual or heterosexual.”); These courts view past conduct or sexual relationships as credible evidence of homosexuality."' For.
Fictions Regarding Same-Sex Desire
- Disgust Is Inconsistent with Desire
- Humor Is Inconsistent with Desire
- Aggression Is Inconsistent with Desire
- Exhibitionism Is Inconsistent with Desire
- Reinforcing Heterosexism
You should be ashamed." Sirey also allegedly touched Love with his hands on two occasions. 34; disgusting." On another occasion, Sirey began rubbing Love's shoulders and back while Love was sitting at the lunch table. The court concluded that Sirey's conduct was inconsistent with sexual attraction.'" Rather, Sirey's "consistent insults" and expressions of "negative feelings about love and her appearance."
The particular assumption here is that anti-gay attitudes are incompatible with same-sex sexual desire.'". But from a pragmatic point of view it can be said that a space is being created in which intentions or goals can be worked out. . .").
In two recent cases, courts have drawn the line at conduct reported by the plaintiff as "assault."
Privileging Straight Marriages
The court was unwilling to disrupt Lynch's heterosexual identity based on workplace indiscretions.” But for Lynch's marriage and claim to heterosexual status, the outcome could have been different.29. There is no evidence that she has ever served time in prison, or plans to do so. in a homosexual relationship, and Cave denies having romantic feelings for plaintiff.”3 Why did the court conclude that no reasonable jury could infer desire from Cave's late-night visit to plaintiff's home and a strange confession. The court may also have been under the mistaken impression that Oncale is requiring harassment to be done in “sex-specific and derogatory terms.”
Sorey confronted the plaintiff and tried to pressure him to leave the company.3''. The court dismissed the case, ruling that the "[plaintiff] failed to provide any evidence that Ron Sorey [was] homosexual and thus allegedly attempted to kiss the plaintiff for sex." The court also made a cryptic reference to Miller testifying "that wasn't - there was no insinuation of him and me or anything like that." ".
34;Carrere never asked [the plaintiff] out or expressed interest in him socially outside of work."30 The court ruled that nothing inappropriate could be inferred from the unusual event in which the plaintiff woke up to find Carrere standing in his bedroom . silently staring at him.33'.
Defending Straight Workers from Gay "Recruitment"
34;harasser's equal opportunity," because it concluded that the plaintiff suffered more "severe and widespread" harassment than the male." He reasoned that "Badell constantly referred to Loyalton employees, made comments about their 'boobs,' and told Loyalton women that he could turn any woman gay. If you don't want that and you don't want to be bothered, then you should say something ."' Id. When alleged harassers are “openly homosexual,” some courts have held that there is an automatic “inference that their conduct was based on sexual desire and thus sexuality. I have found only one case in which a court held that there was credible evidence of homosexuality, but still concluded that the harassment was not "sexually motivated."372 This case involved a female harasser who did not specifically target her alleged harassment to the plaintiff.
Dick had a 'pussy'.'3 Her co-workers made crude jokes about oral sex, simulated sex with a stuffed bear and played vulgar rap music in front of her.' The district court noted that Dick acknowledged that this was the "office environment" and that the vulgarity also appeared to offend a male co-worker, a returned missionary. She did not conclude that the evidence suggesting that the bullies did not want Dick proved that they did not want him. .389 He didn't characterize office humor as "horseplay."39 And he didn't worry about it. See Brower, supra note 6, at The Ghost of a Utah Granny Worker Employed in a 'Lesbian Factory' Is a Very Vivid Thing Consequently, the schema of lesbian sexuality intruded itself and led the court to find a case of harassment of based on same-sex desire where none existed.").
34;openly gay." Some courts understand that heterosexual banter negates the possibility of same-sex desire, for example by dismissing a same-sex harassment claim in which the alleged male harasser.
Forcing the Closet Door Open
Distracting from Discrimination
Some may argue that the presumption that desire meets the "because of sex" requirement for a sexual harassment claim is necessary to achieve the goals of sex discrimination law. Many people believe that the harm of sexual harassment is something other than discrimination against men or women. Others see the harm of sexual harassment as the threat that sexuality in the workplace poses to productivity.
The claim of this article is that sexual orientation and desire are not adequate proxies for discrimination in sexual harassment law. For the purposes of this discussion, I group the views on why sexual harassment is sexual discrimination into three perspectives: (1) sexual dominance, (2) gender disadvantage, and (3) gender differentiation. This taxonomy of theories is stylized, intended for purposes of analysis of whether the assumption that desire is discriminatory is necessary to target the harm of sexual harassment.
Some believe that the fundamental harm of sexual harassment is not discrimination against men or women, but rather disrespect for any worker.
Sexual Domination
The law "generally understands that something happens because of sexuality when it happens to one gender but not to the other."457 This leads to a "head count" in which courts ask whether a particular harasser victimized only members of one gender, and what gives rise to the theoretical possibility of a "bisexual defense."458 But as courts have recognized in other contexts, "both sexes can be simultaneously discriminated against on the basis of sex from a single practice."459 Imagine, for example, a racist supervisor who harasses both black as white employees with the same racial epithet.46 Should only black employees have a claim. MacKinnon concluded that while "head counting can provide a quick topography of the terrain, it has proved too sharp to distinguish a treatment whose meaning is based on gender from a treatment that has a different social hermeneutic, especially when only two individuals are involved." 461 This is the crux of the argument - that sexual harassment is male dominance, not necessarily male dominance.
Should the law treat any sexual expression in the workplace as harassment, even if it is welcome?” Professor Katherine Franke has called the theory of sexual dominance “anti-sexism.”467 She argues that it “combines sexuality and sexism.”468 The anti-sexist view resonates among cultural conservatives and those who see any sex in the workplace as a threat to efficiency.469 However, very few legal theorists argue that all sexual expression or behavior in the workplace results from sex.470 Indeed, proponents of sex, as Justice Scalia wrote in Oncale: " We have never held that workplace harassment, even harassment between men and women, is automatically sex discrimination simply because the words used have sexual content or connotations.”482. The Supreme Court, however, did not rule out the presumption that physical behavior is of a sexual nature "because of sexuality." The Department of Education has interpreted Title IX, which is analogous to Title VII in the context of education, to prohibit "acts of sexual violence."
1681(a) (2012)), provides that "no person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or subjected to discrimination under an educational program or activity receiving federal financial assistance."
Gender Disadvantage
34; creates a negative dynamic that encourages women (and sometimes men) to frame their complaints in terms of sexual offenses, even when much more—or much less—may be at stake."496 Take, for example, Love v. Love, which ' had a degree in nuclear engineering,498 worked in the coker unit and monitored production processes via computer screens.49 When Love began working with Sirey, she weighed 338 pounds.'" Sirey called Love a. After analyzing Love's sexual-desire theory at length, the district court addressed her sex-stereotyping theory almost as an afterthought.s"s The court rejected the stereotyping argument on the procedural grounds that it did not appear in Love's complaint not."
In a summary of the verdict, Love's lawyers argued that Sirey was involved in gender stereotyping because Love did not "conform to Sirey's idea of a liberated, physically healthy woman. But in Sirey's comments, the court saw only Sirey's own "individual ideas" about "women's liberation and physical appearance. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a credible 'brief and plain' statement of the plaintiff's claim, not an explanation of his legal arguments." Skinner v. Norco Plant." If a court structurally considers the harm of discriminatory harassment, gender stratification of this type could create a presumption that the harassment is discrimination "on the basis of sex."512 However, Love did not argue, and it is not clear from the record, whether employment at the coke oven or refinery was generally characterized by gender. segregation or stratification.
Under this rule, harassment is "sex-based" if it is "explicitly sexual and overtly degrading to women," meaning "that a reasonable person, regardless of gender, would consider the sexually offensive conduct and comments more offensive to women than men.” 527.
Sex Differentiation
Implications for Other Contexts
In light of same-sex harassment cases, we can also ask whether definitions of sexuality in child abuse cases are influenced by views about sexual orientation. This study shows that definitions of sexual orientation based on self-identification may not work in all contexts." When negative consequences are attached to a definition of sexuality, as in sexual harassment law, definitions based on self-identification are likely to have unequal outcomes. For example, many state and local laws protect against discrimination on the basis of sexual orientation."'.
Many scholars have described how definitions of sexual orientation status that emphasize the importance of relational identities can support arguments for same-sex marriage. Same-sex harassment cases demonstrate that unless a specific definition of the aspect of sexual orientation relevant to the particular legal inquiry is provided, courts will apply separate, erroneous, or identical definitions. Courts, lawyers, and legal scholars must abandon the search for a unitary theory of sexual orientation.
There may be legal justifications for relying on sexual orientation categories or inferences about desire in certain contexts.
