Document Type

Article

Publication Date

Fall 2008

Abstract

This Article deals with group harassment of women and men in the workplace under Title VII of the 1964 Civil Rights Act. In Oncale v. Sundowner Offshore Services, the Supreme Court held that Title VII forbids harassment by members of the same sex, but it also emphasized that Title VII is implicated only if the harassment occurs "because of sex." Oncale's "because of sex" requirement has spawned considerable confusion in same-sex and different sex harassment cases. This Article focuses on four fact patterns that confuse courts, scholars, and employment lawyers. In the first scenario, men harass women in traditionally male jobs, but the harassment is not directed specifically at the women. In the second, men harass other men who apparently do not conform to socially-accepted gender norms of masculinity. In the third, men harass other men, apparently hazing newcomers or engaging in "horseplay" with established workers. In the fourth, men harass women using means that are not sexual or gendered. The Article uses masculinities research, combined with new bullying research to provide the key to understanding the gendered nature of these behaviors when the behaviors are not overtly sexual or gendered. It provides a theoretical framework for the conclusion that gender is embedded in the workplace, and that harassing behavior at work is often rooted in perceptions of gender difference and inferiority of the feminine and efforts to reinforce the masculinity of the group and of the job.

Publication Citation

79 University of Colorado Law Review 1151 (2008)