Sixteen years ago, the U.S. Supreme Court ruled in Meritor v. Vinson that sexual harassment violates the federal prohibition on sex discrimination in the workplace. Many feminists hailed the decision as a major victory for women. They probably did not imagine such legal developments as lawsuits by heterosexual men against other heterosexual men for sexual harassment via bawdy humor.
Yet the Supreme Court gave such cases the go-ahead in the 1998 decision Oncale v. Sundowner Offshore Services, and they seem to be the new frontier in sexual harassment litigation. By now the trend is prominent enough to have merited a New York Times Magazine cover story.
The behavior alleged (and sometimes documented) in these cases goes far beyond typical "guy" antics. At one food processing machinery plant, some of the men, including a supervisor, would goose co-workers by grabbing their crotches or pinching their buttocks or nipples, just to get a kick out of their startled reactions. At a Chevrolet dealership that could have come from a demented parody of a David Mamet play, a pair of managers routinely denigrated salesmen with sexual language and gestures. One would pretend to grab employees by the crotch, sometimes making contact.
But to be actionable under Title VII of the Civil Rights Act, workplace harassment must be more than crude or humiliating. It has to constitute discrimination on the basis of sex.
At first blush, the idea that male-on-male "hostile environment" harassment is a manifestation of anti-male bias or discrimination seems absurd. Indeed, judges were initially skeptical—just as they were, at first, of the doctrine that sexual advances by men toward women in the workplace are a form of sex discrimination. In the 1980s and '90s, state and federal courts took, as Justice Antonin Scalia noted in the Oncale opinion, "a bewildering variety of stances" on this issue: Some held that same-sex harassment claims were not actionable under any circumstances; others, that they were actionable if the harasser was gay and therefore motivated by sexual desire; still others, that they were actionable under any circumstances.
Oncale cut through this tangled web of conflicting opinions by proclaiming that statutory language did not support "a categorical rule excluding same-sex harassment claims from the coverage of Title VII" and that a male plaintiff could have a valid claim if he could show that he was subjected to disadvantageous conditions of employment because of his sex. The plaintiff in that case was a sympathetic figure: a slightly built man who endured nasty sexual taunts and physical assaults, including being held down and prodded in the buttocks with a soap bar, from his co-workers on an offshore oil rig. But the Supreme Court never did explain how his mistreatment could have put him at a disadvantage compared to female workers—which would have been a difficult case to make, since there were no female workers on the rig.
Some same-sex harassment decisions use amazingly convoluted logic to find anti-male discrimination. In one case, the court found that grabbing a man by the testicles was discriminatory because only men have testicles. Butt grabbing, presumably, would be legal.
The Supreme Court has yet to tackle another paradox of the discrimination-based model of sexual harassment law: What if the work environment is equally "hostile" for men and women? For some time, legal scholars invoked the dilemma of the "equal opportunity harasser" as a hypothetical paradox. Now it has surfaced in some real-life cases, including some discussed in the New York Times Magazine piece. A former Wal-Mart employee had his $80,000 damage award overturned in 2001 because the court of appeals ruled that his supervisor's "vulgar and offensive" conduct was not discriminatory: He was "obnoxious to men and women alike." In an earlier Indiana case, a boss who allegedly made sexual advances toward both a male and a female employee, and retaliated against them for not complying, was exonerated on similar grounds—which leads to the mind-boggling conclusion that bisexuals have a license to harass.
If that sounds crazy, maybe it's because the basic paradigm of sexual harassment as sex discrimination is deeply flawed. In fact, it's far from clear that this paradigm makes sense even when applied to the "classic" scenario of male-on-female harassment—as some feminist legal scholars are now acknowledging.
Sure, workplace ribaldry or unwanted sexual advances directed at women may sometimes be motivated by a desire to put women "in their place"—to humiliate them, terrorize them, even force them to quit. But sexual attraction may be a far more typical motive; much "harassment" is merely a clumsy attempt at flirting.
Moreover, women's claims of "hostile environment" harassment are often based on a bawdy workplace atmosphere which seems to affect men and women alike, and to which other women may contribute. When such claims have succeeded, it has been on the rather sexist theoretical grounds that a sexualized work environment has a uniquely negative effect on women. Male-on-male harassment complaints undercut this already shaky logic.
In recent years, the current legal model of sexual harassment has been criticized by a number of legal scholars who identify strongly as feminists. In a much-discussed 1998 article in the Yale Law Journal, Yale law professor Vicki Schultz challenged what she calls the "sexual model" of sexual harassment as both too broad and too narrow: too narrow because it does not cover many nonsexual forms of gender-based harassment that may put women at a disadvantage on the job (such as sabotaging a woman's work project), too broad because it often seems to target all expressions of sexuality in the workplace.
Schultz would have the law focus on the discriminatory rather than sexual nature of harassment. While such a shift would have its merits—it would, at least, rule out the ludicrous cases in which people get fired for repeating a joke from Seinfeld at the office—it would create new problems, such as the possibility of ideologically based suppression of speech. (An employee's statement that mothers of young children ought to stay home, for example, might become actionable.)
Another feminist law professor, Rosa Ehrenreich of the University of Virginia, takes the opposite approach in a 1999 article for the Georgetown Law Journal, "Dignity and Discrimination: Toward a Pluralistic Understanding of Workplace Harassment." Ehrenreich's argument, favorably cited in the New York Times Magazine article, is that sexual harassment should be reconceived as an injury to personal dignity, regardless of gender. In other words, it should be treated as a tort rather than a civil rights violation. The political scientist Ellen Frankel Paul made a similar proposal nearly a decade earlier .
Interestingly, this approach was explicitly rejected in the '70s by feminist legal reformers seeking remedies for sexual harassment. One reason was that civil rights law makes it easier to sue a corporation, with its deep pockets, than an individual harasser. More important, perhaps, feminists wanted sexual harassment to be seen as male oppression of women, not just individual misbehavior.
The current legal model of sexual harassment has become so entrenched that it's hard to see the courts moving away from it any time soon, however persuasive the theoretical arguments or however absurd the actual cases. In the meantime, what seems to be nearly extinct is any appreciation of diverse cultural norms in the workplace—of the fact that some work environments may be relatively straitlaced while others may be raunchy and freewheeling, and that people unhappy with the culture of their current job might simply seek other employment. Obviously, some things are beyond the pale of acceptable workplace culture; physical assaults, such as testicle grabbing, would fit that category. Vulgar humor is a different matter.
For years, some feminists have argued that when it comes to establishing norms of workplace behavior, the sensibilities of the most vulnerable woman should set the standards for everyone else. Giving the same consideration to the most sensitive man is hardly an improvement.