POLITICS DECEMBER 29, 1997
At the Supreme Court last week, during the argument in Oncale v. Sundowner Offshore Services, the justices seemed skeptical of the shipping company's claim that same-sex harassment could never be illegal under Title VII of the Civil Rights Act. Joseph Oncale, the oil-rig roustabout whose supervisor allegedly put his penis on Oncale's head, had sued for harassment, and the U.S. Court of Appeals for the Fifth Circuit held that sexual harassment doesn't include men behaving badly with other men. Oncale may have been harassed because he seemed weak or vulnerable, or because his supervisor was gay; but he wasn't harassed because he was a man. This didn't go over well with the Court: If a Jew can discriminate against a Jew, Justice Breyer asked, why can't a man discriminate against a man?
But as the justices struggled with the question of whether Oncale had been harassed because he was a man or because his supervisor didn't like him, it became painfully clear that many heterosexual advances that are increasingly punished as harassment are similarly hard to think of as sex discrimination. The Oncale case shows that the expanding edifice of sexual-harassment law is built on quicksand and should be reconsidered.
Title VII of the Civil Rights Act of 1964 says: "It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's … sex." It's hard to conclude, as the lower court did, that same-sex discrimination can never be actionable under any circumstances. Imagine that the Sundowner shipping company had a policy of assigning men to oil rigs and systematically hazing them, while assigning women to office jobs and systematically pampering them. Wouldn't this mean that men, as a class, were being discriminated against because of their sex? On the other hand, as Justice Scalia suggested, it was possible the priapic supervisor, John Lyons, harassed Joseph Oncale not because he was a man but simply because he didn't like him. Justice Stevens suggested that Oncale should have the opportunity to prove at trial that he wouldn't have been harassed "but for" his sex; that is, he would have been left alone on the oil rig if he had been a woman rather than a man.
But how, precisely, would a jury carry out this odd thought experiment, with shades of Woolf's Orlando? Because there were no women on the oil platform, who can say how Lyons would have treated Oncale if he had been a woman? Maybe chivalry, or the fear of a sexual harassment suit, would have led him to treat a woman better. Or maybe Lyons wouldn't have picked on women at all because he was gay. (His actual sexual orientation isn't clear from the Supreme Court briefs.) If Lyons picked on Oncale because he was attracted to him, some lower courts have held, then Oncale was discriminated against because of his sex. But this approach ignores both the text and the purpose of Title VII, which bans discrimination "because of sex," not "because of sexual attraction."
During the argument, Justice Ginsburg suggested another approach. Title VII has been interpreted to prohibit generalizations based on gender stereotypes, she suggested; and perhaps its protections should be extended to men who are harassed in the workplace because they are not viewed as sufficiently masculine. Suppose that Lyons picked on Oncale, for example, because he was an effeminate man. Because Oncale wouldn't have been harassed if he were an effeminate woman, Ginsburg suggested, he was a victim of discrimination "because of sex." But this argument, although logically plausible, is even harder to reconcile with the purposes of Title VII. Congress in 1964 had no intention of barring discrimination based on sexual orientation, and the Senate rejected efforts to expand Title VII to include sexual orientation last year.
Ginsburg's conflation of sex discrimination and sexual-orientation discrimination is hard to distinguish, ironically, from that of her old antagonist, Catharine MacKinnon. In a brief filed on behalf of the National Organization on Male Sexual Victimization, MacKinnon argues: "Often it is men perceived not to conform to stereotyped gender roles who are the targets of male sexual aggression." Oncale's supervisors, MacKinnon argues, "were asserting male dominance through imposing sex on a man with less power. Men who are sexually assaulted are thereby stripped of their social status as men. They are feminized: made to serve the function and play the role customarily assigned to women as men's social inferiors." As a descriptive claim, this isn't as crazy as it sounds. It was impossible to watch interviews with the slight, anxious Joseph Oncale and not be struck by the fact that he seemed more upset by the attack on his masculine identity than on his ability to do the job.
But as a claim about the text and purpose of Title VII, MacKinnon's argument is absurd. "If acts are sexual and hurt one sex," she proposes, they should be considered "sex-based, regardless of the gender and sexual orientation of the parties." But this view--"if it's sexual, it's gendered," as MacKinnon puts it--would convert Title VII into a federal prohibition on sexual conduct in the workplace, eliminating the requirement that the conduct has to be motivated by some kind of anti-male or anti-female bias that changes the conditions of employment in a discriminatory way.
Although MacKinnon may lose the Oncale battle, she has nearly won the war to transform Title VII from a law that bans sex discrimination to a law that bans sexual expression. Consider garden variety heterosexual advances at work. According to the Equal Employment Opportunity Commission, "verbal and physical conduct of a sexual nature" is illegal if the employer threatens retaliation to coerce the employee to submit, or if the conduct creates an "intimidating, hostile, or offensive working environment."
But a lot of the conduct that's routinely punished today as quid pro quo harassment and hostile-environment harassment isn't really discrimination "because of sex." Imagine a situation in which a male employer becomes infatuated with a female employee and makes unwanted advances. He's treating her differently than all the other men and women in the workplace not because of her sex, but because of his sexual attraction to her. And some courts have rejected the claim that employers can never make employment decisions on the basis of sexual attraction. In 1985, for example, Judge Robert Bork suggested that sexual favoritism shouldn't be illegal: when a woman complained that her female coworker had been promoted because she was sleeping with the boss, Bork said, in effect, that's life.
As a practical matter, Bork has to be right: some bosses may be more likely to trust people with whom they're romantically involved. (Just ask the employees at a mom-and-pop grocery store.) But if sexual favoritism isn't sex discrimination, why are unwanted advances sex discrimination, as opposed to discrimination based on sexual attraction? Catharine MacKinnon says that the former doesn't systematically disadvantage women the way the latter does; but as Eugene Volokh of UCLA Law School notes, Oncale's employers are arguing the same thing: when male supervisors haze vulnerable male employees, the shipping company says, this doesn't systematically disadvantage male or female employees as a group.
As the justices struggled in vain to tether sexual harassment to some notion of sex discrimination, it became clear that lower courts have essentially embraced MacKinnon's radical notion--namely, that any sexual expression in the workplace is sex discrimination. Some courts have treated perfectly neutral speech at work, such as sexual jokes told by and to women and men, as a form of sex discrimination, on the dubious theory that women are more likely than men to find the jokes offensive--or, even more starkly, that a sexualized workplace inherently demeans women but not men. Now MacKinnon is trying to extend her theory to include same-sex harassment among men: even though it doesn't place any particular sex at a disadvantage, MacKinnon says that, like pornography, same-sex harassment constructs the social meaning of gender in a way that disfavors feminine men.
This case presents the perfect opportunity for the Supreme Court to put a stop to creeping MacKinnonism, and to recall the text and original purpose of Title VII. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed," Justice Ginsburg wrote recently. This would include an orchestrated campaign by an employer to drive all women or all men from the workplace, because of gender-based animus or a belief that one sex wasn't up to the job. It would include a company policy that systematically favors one sex over the other in hiring, firing, and promotion. But it wouldn't include many amorous advances to individual employees, even, in some cases, those accompanied by threats of retaliation or promises of reward. It wouldn't include pinups and jokes that women might be more likely to find offensive. It wouldn't even include all demeaning epithets (such as "dumb broad"), unless they suggested an employer's animus toward women in general, rather than a desire to get the goat of a particular employee whom the boss happened to dislike.
As for Joseph Oncale, it looks like he will have the chance to prove that he was singled out for special indignities because he was a man. But it's hard to imagine the form that the proof will take. "If this matter is allowed to proceed to trial," Oncale's lawyers promise, "evidence will include the testimony of other victims of John Lyons," including a worker named Kent Brumfield who says Lyons held him down and "sucked a hickey on his neck." So the supervisor had a taste for homoerotic sex games. But whether he chose his victims because he liked them or because he didn't like them, or because he thought they were too feminine, or too masculine, isn't the kind of inquiry that we ordinarily ask federal judges to perform. Sex is the most mysterious of all human impulses, and it can't be tamed by MacKinnonite syllogisms. The Court should get 'out of this area, where it has already done more harm than good, and where Congress never authorized it to go in the first place.