Finding the Sex in Sexual Harassment: How Title VII and Tort Schemes Miss the Point of Same-Sex Hostile Environment Harassment

It has been nearly a quarter century since the United States Supreme Court first recognized the cause of action for a sexually hostile work environment under Title VII of the Civil Rights Act of 1964. In Meritor Savings Bank v. Vinson, the Court essentially adopted the view offered by legal academician Catharine MacKinnon that harassment taking the form of a sexually hostile work environment is a manifestation of gender-based power. In so doing, the Court created a remedy for many aggrieved employees, permitting redress in the federal courts for a problem that makes many workplaces unbearable. At the same time, however by adopting MacKinnon’s theory of sexual violence, the Court virtually ensured that a different class of plaintiffs– victims of anti-gay hostile work environments– would be denied relief.

While some analysts trace this inequity to a conflicting array of judicial doctrine, this Article claims that its source runs much deeper: to courts’ misguided understanding of the nature of sexual harassment itself Although much of the history of sexual harassment doctrine indicates courts’ primary concern with determining the motivation behind incidents of harassment, hostile environments that take the form of sexual harassment cannot be explained as the simple expression of either sexual desire or gender-specific hatred. Thus, courts’ reliance upon a binary conception of sexuality results in a fundamentally flawed jurisprudence. The Article concludes by offering an alternative theory of sexual harassment highlighting the independently sexual dimension of the behavior and argues that, because the nature of sexual expression itself is highly ambivalent and fluid, courts are ill-equipped to investigate the motivations underlying workplace interactions that take a sexual form.