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44 3 Evaluating Harassment Occurring “Because of Sex” As noted in chapter 2, Title VII does not explicitly make harassment illegal , but the courts have interpreted Title VII’s broad prohibition against sex discrimination in employment to ban sex-­and gender-­ based harassment that creates a hostile working environment. The development of the law is the result of judicial interpretation over more than a thirty-­ year period, reflecting input from litigators, the EEOC, legal scholars, lower courts, and the U.S. Supreme Court. To demonstrate an illegal sex-­or gender-­ based hostile work environment under Title VII, the plaintiff must show that the harassing behavior was unwelcome, that it was sufficiently severe or pervasive to alter the terms or conditions of the victim’s employment, and that it occurred because of the victim’s sex. This chapter deals with the thorny issue of whether an individual’s harassing behavior occurs “because of sex.”1 Courts have traditionally become confused when attempting to determine whether behavior occurs because of sex, often granting motions for summary judgment or to dismiss plaintiffs’ claims in situations where their common sense leads them astray. Common sense can be problematic because socially constructed gender structures and behaviors can often appear normal and thus be invisible to judges and juries making these determinations. Masculinities theory can aid the courts and juries in determining whether behavior occurs “because of sex.” Questions Raised by the “Because of Sex” Standard The meaning of “because of sex” in Title VII harassment cases has created significant trouble for courts and scholars who have grappled with the question. As a proof matter, courts have no difficulty determining that sexual advances by an individual man toward an individual woman and vice versa satisfy the “because of sex” requirement of the statute. Courts struggle, however, with many of the other cases that occur in Evaluating Harassment Occurring “Because of Sex” | 45 different contexts such as same-­ sex harassment of a man by a group of men or where the harassment includes both sex-­or gender-­ based behavior and behavior that is sex or gender neutral. The problems in hostile work environment law result from an inadequate theory to explain why sex-­or gender-­ based harassing behaviors equal sex discrimination. Theorizing in this area is particularly difficult because there are many moving parts that contribute to the broader question of whether the behavior occurs “because of sex.” Many different contexts, motivations, and behaviors exist in cases that occur because of sex, but courts tend to revert to their own understanding of gender relations and focus on sexual relationships and/or differential treatment of men and women at work. This narrow focus creates conceptual difficulty in what courts see as unusual cases: same-­ sex harassment cases, workplaces where both men and women suffer harassment, and female-­ on-­ male harassment cases. Take the Jonathan Martin case. Commentators ignored the obviously gendered nature of Martin’s treatment and characterized it as normal male behavior in the context of professional football. But when we consider masculinities theory, we can understand that the behavior directed at Martin occurred because of sex or gender. There are legitimate concerns, of course, that come into play. Courts do not interpret Title VII as enforcing civility rules; rather, Title VII’s purpose is to prohibit discrimination because of sex and other protected characteristics. Drawing lines between civility rules and illegal discrimination is often difficult. While courts must draw these lines, they should go beyond their own experiences to understand how sex and/or gender are intricately involved in many of the behaviors that courts examine to determine whether the behavior occurred because of sex. Hostile work environment law relies heavily on analysis of the motivations for human behaviors in the context of the workplace. The law fails, however, when, without resorting to social science research, it relies on commonsense assumptions about why human beings engage in particular behaviors. Social science research in gender, masculinities, and workplace dynamics is an important tool for developing a comprehensive theory of what behaviors occur because of sex and why. With insight from masculinities theory, combined with other social science research, this chapter attempts to offer a comprehensive legal theory that 46 | Evaluating Harassment Occurring “Because of Sex” explains why a variety of behaviors stemming from different motivations in different workplace contexts can occur because of sex. This chapter identifies the problems courts have in interpreting whether harassing behaviors occur because of sex, explains the importance of power as not...


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