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social sciences

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Sexual Harassment  
 
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The Supreme Court accepted the plaintiff's argument that this treatment amounted to "sexual stereotyping"--punishing an individual for failing to conform to preconceived notions of appropriate gender role--and that such stereotyping was evidence of unlawful discriminatory motivation under Title VII, since it imposed a barrier to advancement in the workplace and, at least in this case, seemed to be applied only against women.

Seizing upon the Price Waterhouse precedent, some attorneys for gay men suffering workplace harassment adopted the sexual stereotyping theory and argued that their clients were being harassed because of failure to conform to male gender norms.

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Since the Oncale case, sexual harassment cases brought on behalf of sexual minority plaintiffs under Title VII have been most successful when the victims could credibly allege that they were singled out for persecution because of perceived gender non-conformity, in order to draw support from Price Waterhouse.

For example, in Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Circ. 2002), a male steward at the hotel, who was gay, complained of a hostile work environment created by his male co-workers, testifying in a deposition that they spoke of him and treated him like a woman. The trial court and a three-judge circuit panel held that his claim was really for sexual orientation discrimination, and dismissed his case. An expanded 9th Circuit panel, reconsidering the matter en banc, ruled that he had adequately alleged that he was victimized because of perceived gender non-conformity, and reinstated his case. The U.S. Supreme Court refused to review this ruling, 123 S.Ct. 1573 (2003), which is part of a growing trend in the reported appellate cases.

However, where it seems clear that the plaintiff was victimized because of actual or perceived homosexual orientation and evidence of gender stereotyping was not present, federal courts generally hold that Title VII does not apply. One prominent federal judge, Richard Posner of the 7th Circuit Court of Appeals in Chicago, argued in Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058 (7th Cir. 2003), that the gender stereotyping theory was being overused and misused by the courts to distort the meaning of Title VII, no doubt with the best of intentions when confronted with evidence of outrageously nasty workplace behavior exhibited towards gay employees.

State and Local Statutes

In those states and localities that have outlawed workplace discrimination on the basis of sexual orientation (and, in some places, gender identity or expression), gay employees do not need to resort to the gender stereotyping theory in order to seek redress against being harassed because of their sexual orientation. While civil rights lawyers have traditionally preferred to bring their cases in federal court under federal anti-discrimination laws, doing so in a gay harassment case is a gamble unless there is very persuasive evidence of gender stereotyping; and the gamble need not be taken when state or local courts are available to enforce a more directly applicable statute.

In addition, there are some jurisdictions, such as California, that have concluded that workplace harassment is offensive enough as a matter of public policy to be independently proscribed, regardless whether it is discriminatory in the particular case, and have added to their statutes and regulations accordingly. This was vividly illustrated in Drummer v. San Francisco Housing Authority, 2003 Westlaw 22391173 (Cal. Ct. App., 1st Dist., 2003), an unofficially published decision upholding a jury verdict against the City of San Francisco where a female supervisor was accused of sexually harassing both men and women. The city sought to rely on federal cases holding that such "equal opportunity" harassment was not discriminatory and thus not illegal, but the court of appeal pointed out that California's Labor Code included an express ban on workplace harassment apart from its ban on sex discrimination.

Since a substantial portion of the population works in states or localities that have not yet added "sexual orientation" or "gender identity or expression" to their list of proscribed bases for workplace discrimination, the limitations of Title VII as a source of protection against workplace discrimination for sexual minorities remains a problem.

Enactment of the pending Employment Non-Discrimination Act would solve this problem for those who are gay or perceived as such, but would not necessarily protect transgendered individuals. However, there is a growing body of precedent for the proposition that harassment of transgendered persons is almost invariably motivated by disapproval of gender non-conformity, so the emergent Title VII precedents for that theory may be available in such cases.

Arthur S. Leonard

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    Bibliography
   

Calleros, Charles R. "Same-Sex Harassment, Textualism, Free Speech and Oncale: Laying the Groundwork for a Coherent and Constitutional Theory of Sexual Harassment Liability." George Mason Law Review 7 (1998): 1-43.

Grose, Carolyn. "Same-Sex Sexual Harassment: Subverting the Heterosexist Paradigm of Title VII." Yale Journal of Law and Feminism 7 (1995): 375-98.

Locke, Steven S. "The Equal Opportunity Harasser as a Paradigm for Recognizing Sexual Harassment of Homosexuals Under Title VII." Rutgers Law Journal 27 (1996): 383-415.

MacKinnon, Catherine A. Sexual Harassment of Working Women: A Case of Sex Discrimination. Rev. ed. New Haven, Conn.: Yale University Press, 1986.

Storrow, Richard F. "Gender Typing in Stereo: The Transgender Dilemma in Employment Discrimination." Maine Law Review 55 (2003): 117-55.

Turner, Ronald. "The Unenvisaged Case, Interpretive Progression, and the Justiciability of Title VII Same-Sex Sexual Harassment Claims." Duke Journal of Gender Law and Policy 7 (2000): 57-88.

 

    Citation Information
         
    Author: Leonard, Arthur S.  
    Entry Title: Sexual Harassment  
    General Editor: Claude J. Summers  
    Publication Name: glbtq: An Encyclopedia of Gay, Lesbian, Bisexual,
Transgender, and Queer Culture
 
    Publication Date: 2004  
    Date Last Updated December 31, 2004  
    Web Address www.glbtq.com/social-sciences/sexual_harassment.html  
    Publisher glbtq, Inc.
1130 West Adams
Chicago, IL   60607
 
    Today's Date  
    Encyclopedia Copyright: © 2002-2006, glbtq, Inc.  
    Entry Copyright © 2004, glbtq, inc.  
 

 

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