Reconceptualizing Sexual Harassment

Abstract

This Article documents and criticizes the prevailing paradigm for conceptualizing sex-based hostile work environment harassment. The prevailing paradigm understands harassment as an expression of men's sexual desire for, or domination of, women. Within the paradigm, male-female sexual advances are the core forms of harassment that can constitute a hostile work environment. The paper demonstrates the limitations of this paradigm. Most importantly, the sexual desire-dominance paradigm is underinclusive. The focus on sexual abuse omits, and even obscures, many of the most debilitating forms of harassment experienced by women at work. Much of the conduct that makes workplaces hostile and alienating to women is difficult to construe as sexual in design; many men are also harmed by sex based harassment that cannot be easily understood within a sexualized paradigm. In addition, the prevailing paradigm may be overinclusive. By emphasizing sexual advances as the core harassment, the paradigm may subtly encourage a paternalism that seeks to protect women's sexual sensibilities rather than to promote their empowerment as workers. This paternalism may inspire companies to prohibit some forms of sex talk that do not contribute to gender hierarchy at work. These problems point to a need for a new account of hostile work environment harassment that highlights its relationship to broader forms of gender stratification of work. This piece proposes a new account. It advances an account of sex harassment that emphasizes its role in reproducing work and work competence along gendered lines. In this account, harassment is not driven by a need for sexual domination, but by some men's desire to retain favored lines of work for themselves. Hostile work environment harassment serves a gender-guarding, competence- undermining function. By marking women as incompetent to perform the most highly rewarded forms of work, harassment policies the boundaries of such work and protects its idealized masculine image. By maintaining their jobs as bastions of masculine competence, men protect their material advantage and also preserve their sense of identity (even superiority) as men. This new competence-centered account not only provides a more comprehensive basis for understanding the customary cases of male female harassment by supervisors and coworkers, it also opens up promising new approaches to less conventional forms of harassment, such as harassment of female supervisors by their male subordinates. It also provides a basis for prohibiting some, but not all, instances of men's harassment of other men at work. The conclusion describes concrete ways to implement the new account, at both a conceptual and doctrinal level.