Magazine article Reason

Man Trouble: What Does Male-on-Male Sexual Harassment Mean for Discrimination Law? (Columns)

Magazine article Reason

Man Trouble: What Does Male-on-Male Sexual Harassment Mean for Discrimination Law? (Columns)

Article excerpt

SIXTEEN YEARS AGO, the U.S. Supreme Court ruled in Meritorv. Vinson that sexual harassment violates the federal prohibition on sex discrimination in the workplace. Many feminists hailed the decision as a major victory for women. They probably did not imagine such legal developments as lawsuits by heterosexual men against other heterosexual men for sexual harassment via bawdy humor.

Yet the Supreme Court gave such cases the go-ahead in the 1998 decision Oncale v. Sundowner Offshore Services, and they seem to be the new frontier in sexual harassment litigation. By now the trend is prominent enough to have merited a New York Times Magazine cover story.

The behavior alleged (and sometimes documented) in these cases goes far beyond typical "guy" antics. At one food processing machinery plant, some of the men, including a supervisor, would goose co-workers by grabbing their crotches or pinching their buttocks or nipples, just to get a kick out of their startled reactions. At a Chevrolet dealership that could have come from a demented parody of a David Mamet play, a pair of managers routinely denigrated salesmen with sexual language and gestures. One would pretend to grab employees by the crotch, sometimes making contact.

But to be actionable under Title VII of the Civil Rights Act, workplace harassment must be more than crude or humiliating. It has to constitute discrimination on the basis of sex.

At first blush, the idea that male-on-male "hostile environment" harassment is a manifestation of anti-male bias or discrimination seems absurd. Indeed, judges were initially skeptical- just as they were, at first, of the doctrine that sexual advances by men toward women in the workplace are a form of sex discrimination. In the 1980s and '9os, state and federal courts took, as Justice Antonin Scalia noted in the Oncale opinion, "a bewildering variety of stances" on this issue: Some held that same-sex harassment claims were not actionable under any circumstances; others, that they were actionable if the harasser was gay and therefore motivated by sexual desire; still others, that they were actionable under any circumstances.

Oncale cut through this tangled web of conflicting opinions by proclaiming that statutory language did not support "a categorical rule excluding same-sex harassment claims from the coverage of Title VII'' and that a male plaintiff could have a valid claim if he could show that he was subjected to disadvantageous conditions of employment because of his sex. The plaintiff in that case was a sympathetic figure: a slightly built man who endured nasty sexual taunts and physical assaults, including being held down and prodded in the buttocks with a soap bar, from his co-workers on an offshore oil rig. But the Supreme Court never did explain how his mistreatment could have put him at a disadvantage compared to female workers-which would have been a difficult case to make, since there were no female workers on the rig.

Some same-sex harassment decisions use amazingly convoluted logic to find anti-male discrimination. In one case, the court found that grabbing a man by the testicles was discriminatory because only men have testicles. Butt grabbing, presumably, would be legal.

The Supreme Court has yet to tackle another paradox of the discrimination-based model of sexual harassment law: What if the work environment is equally "hostile" for men and women? For some time, legal scholars invoked the dilemma of the "equal opportunity harasser" as a hypothetical paradox. Now it has surfaced in some real-life cases, including some discussed in the New York Times Magazine piece. A former Wal-Mart employee had his $80,000 damage award overturned in 2001 because the court of appeals ruled that his supervisor's "vulgar and offensive" conduct was not discriminatory: He was "obnoxious to men and women alike." In an earlier Indiana case, a boss who allegedly made sexual advances toward both a male and a female employee, and retaliated against them for not complying, was exonerated on similar grounds-which leads to the mindboggling conclusion that bisexuals have a license to harass. …

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