Divorcing Sexual Harassment from Sex: Lessons from the French

Article excerpt

Introduction

One of the challenges in establishing the existence of actionable sexual harassment under Title VII of the Civil Rights Act of 1964 (1) has been to prove that the harassing conduct, even when it is explicitly sexual, has occurred "because of ... sex"--a requirement for actionable sexual harassment. Because sexual harassment in the context of the American workplace is prohibited as a form of discrimination on the basis of sex, harassment that is not seen as fitting within the framework of sex discrimination is not generally considered to be unlawful. (2) Accordingly, the courts have insisted that the harassment to which targets are subjected be shown to have been motivated by the sex or gender of that target, (3) and not by other considerations, such as actual or perceived sexual orientation (4) or simple personal dislike. Accordingly, in a number of cases of both opposite-sex and same-sex harassment, courts have concluded that explicitly sexually denigrating conduct was not motivated by sex, and therefore was not prohibited by Title VII. (5)

I have explained elsewhere my concerns about the questionable analysis that has caused courts to conclude that explicitly sexually denigrating conduct is not based on sex, (6) and I will not repeat those arguments here. However, my concerns about those holdings have caused me to explore the possibility of a law of sexual harassment divorced from the "because of ... sex" requirement--a prohibition against sexual harassment in the workplace that does not require a showing that the harassment was motivated by sexual desire, gender hostility, or sexual stereotyping, or constituted explicitly different activity directed at men and women. (7)

This possibility, while foreign to the conception of sexual harassment law in the United States, (8) is consistent with the law in a number of jurisdictions outside the United States. A number of those jurisdictions prohibit both sexual harassment and "moral harassment." Prohibited sexual harassment is generally defined as involving conduct that is sexual in nature, although the harm sought to be prevented is not focused on discrimination so much as on harm to dignity. (9) Claims of moral harassment seek to regulate derogatory or denigrating workplace conduct more generally, reaching beyond conduct that is sexual in nature or discriminatorily motivated. Although the precise definition of moral harassment differs among jurisdictions, the jurisdictions that recognize such a claim generally define the prohibited conduct as conduct directed at a subordinate or co-worker that has the purpose or effect of injuring the dignity of that employee or adversely affecting his or her employment conditions or opportunities. (10) In those jurisdictions, a showing of actionable harassment does not require that the harassment be shown to have been inflicted with a discriminatory motive or effect, but merely requires a showing of either intent to harm or sufficient injury.

This article will explore whether recognition of a claim of sexual harassment focused on dignity rather than discrimination, or even of a gender-neutral claim of harassment, similar to a claim of moral harassment in France, might be possible within the scope of the American legal system, either as a substitute for, or a supplement to, the presently recognized claim of discriminatory harassment under Title VII. In so doing, this article will explore the historical and cultural differences that have led to the development of these disparate approaches in the United States and in France, as well as the challenges that would have to be faced in attempting to import aspects of such a discrimination-neutral or gender-neutral claim of harassment into the law of the United States.

II. FRANCE'S LAW OF SEXUAL AND MORAL HARASSMENT

The current state of the law with respect to sexual and moral harassment in France reflects the historical development of that law within France, including some quite recent events, as well as the influence of the requirements imposed on France and French law by its membership in the European Union. …