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35 Part II Focusing on Gender-­and Sex-­ Based Harassment If the Wells Report findings are accurate, it appears that Jonathan Martin suffered a hostile working environment at the Miami Dolphins because of his race and sex. Assuming that Martin could meet the threshold requirement of proving that he had an employment relationship with the Dolphins or the NFL or both, Martin would file a charge with the Equal Employment Opportunity Commission (EEOC) and, ultimately, sue in federal court under Title VII. Martin could not sue his teammates individually under Title VII, but he could potentially sue them alleging violations of common law tort or state statutes prohibiting harassing behaviors. Because the masculinities described in part I would frequently be litigated under sexual, gender, and/or racial harassment under Title VII, part II focuses on the potential Title VII liability based on sex or gender and racial harassment and how masculinities research could help make visible the gender-­ based injuries to Jonathan Martin. To cover this topic, part II has three chapters. Chapter 2 describes the historical and theoretical background of the creation of the hostile work environment cause of action under Title VII. Chapter 3 analyzes the term “because of sex” and shows that Martin could use masculinities studies to demonstrate that the alleged behavior occurred because of sex under Title VII. Chapter 4 discusses the proper standard for determining whether the behavior is sufficiently severe or pervasive to alter the terms or conditions of an employee’s employment. As a whole, part II discusses the history and current legal standards of Title VII and demonstrates that masculinities research can illuminate difficult issues the courts have identified in proving a hostile working environment. Furthermore, it shifts the lens to permit a better understanding of how masculinities research can inform the courts’ questions. Finally, part II demonstrates that as the law stands today, masculinities theory can 36 | Part II help judges and juries decide hostile work environment cases. Chapters 3 and 4 also propose that courts adopt new legal interpretations and standards in light of masculinities research. Alternative theories of litigation under Title VII would be disparate treatment and disparate impact claims that I will analyze in part III. ...


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MARC Record
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