Reconceptualizing Sexual Harassment

Vicki Schultz

Sexual harassment has become one of the most dynamic and misunderstood areas of law, as the doctrine has evolved and continues to evolve in order to meet the needs of a changing national workforce. Title VII of the Civil Rights Act proscribes supervisors from conditioning employment benefits on sexual favors, or quid pro quo harassment. The statute also prohibits employers from allowing supervisors and coworkers to engage in sex-based conduct that is so severe or pervasive as to comprise a hostile or abusive working environment, or hostile work environment harassment. In this Article, Professor Schultz argues that courts and commentators have subscribed to an overly narrow conception of hostile work environments, one which centers on sexual abuse. According to this "sexual desire-dominance" paradigm, harassment typically involves a male supervisor's unwelcome sexual advances toward a less powerful female subordinate. For many women, however, workplace harassment is gender-based, not sexual in content or design. Professor Schultz demonstrates how the prevailing paradigm has led courts to restrict the law's protection by emphasizing sexual advances and other sexually oriented conduct while neglecting equally debilitating, nonsexual forms of gender-based mistreatment. She argues that this narrow focus has resulted from a failure to comprehend the full significance of structural workplace inequalities in creating women's disadvantage. Professor Schultz then proposes an alternative account of hostile work environment harassment, one which emphasizes its role in perpetuating job segregation by sex and preserving the masculine identification of favored lines of work. According to this "competence-centered" account, some male workers harass women, not to satisfy sexual needs, but to protect the masculine composition of their work and the status that accompanies it. Professor Schultz's new account of hostile work environment harassment also provides a basis for bringing some same-sex harassment under the reach of Title VII, while reducing the risk of encouraging companies to prohibit benign forms of sexual expression in the workplace.

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