When you work at a car
dealership, you spend a lot of time standing around, but that does
not mean you relax. How can you, with the manager constantly hovering
over you and the strains of ''We Will Rock You'' or some other sales-meeting
anthem ricocheting around your brain? You've got to be on, you've
got to be pumped, you've got to be ready to pursue a car that noses
into the lot, and then be standing right there, hand extended, when
the wary customer steps out. Body language is vital. Philip Reed,
a writer who last year posted a diary on the Internet about his stint
as a car salesman, described a seminar in which he was taught how
to shake hands -- with a ''slight pulling motion'' that represents
''the beginning of your control over the customer.'' Reed observed
that the car salesmen he worked with shook hands with one another
often, too, practicing for ''Mr. Customer'' and ''staying loose.''
There was also a lot of ''high-fiving, fist-bumping, back-slapping
and arm-squeezing'' and during slow periods a lot of ''tie-pulling,
wrestling and shadowboxing.''
And a fair amount of free-floating,
adrenalized aggression. ''At car dealerships, there's a lot of downtime,''
says Jean Clickner, a lawyer with the Equal Employment Opportunity
Commission in Pittsburgh. ''You work 12-hour days, and there's a lot
of waiting around for customers. At the same time, there's big money
to be made and a lot of pressure to make a deal, and when you're the
one selling cars, you feel you can do no wrong.'' Clickner, who has
represented several aggrieved car salesmen, sums up the problem this
way: ''Sometimes the guys get slap-happy.'' Car dealerships, in other
words, are one of those American workplaces where masculinity and
job performance are straightforwardly equated, which makes them fun
for some men and not at all for others.
Consider what happened,
back in the late 90's, at Burt Chevrolet in Denver, where two swaggering
sales managers named Terry Franks and Jay Gaylord held sway for a
time, and in unreconstructed style. It was apparently their habit,
for example, to address salesmen as ''little girls'' or ''whores.''
They would upbraid a guy by asking if he used tampons or tease him
by saying that he had ''to squat'' when he urinated. The managers
publicly derided struggling salesmen as ''queers'' or ''steers'' --
because ''steers try; bulls get the job done.'' To motivate the troops
during sales meetings, they showed raunchy video clips, including
one depicting a bull stepping on the genitals of a rodeo cowboy. Gaylord
signaled his boredom with what a subordinate was saying to him by
simulating masturbation while the employee talked. He grabbed at male
employees' genitals, sometimes making contact, sometimes not, but
mainly (or so it seemed to the men who got used to jumping out of
his way or even running when they saw him) hoping to make them flinch.
The reason we know about
any of these antics is that 10 of the salesmen at Burt Chevrolet ultimately
decided to register their objections. And to do so they chose what
might seem to be an unusual means. With the help of the E.E.O.C.,
they filed a sexual-harassment lawsuit charging the car dealership
with creating a hostile environment that discriminated against them
as men. It was, in their case, an effective weapon: two years ago,
the E.E.O.C. won a $500,000 settlement (and a promise to implement
mandatory sexual-harassment training) from Burt Chevrolet, which had
already fired the two managers in question.
The idea that by being
raunchy, men might be discriminating against other men is not an intuitive
one. Indeed, not all of the guys involved in the Burt Chevrolet suit
realized ''that this was discrimination at first,'' says Mia Bitterman,
one of the E.E.O.C. lawyers who handled the case. ''But they certainly
did not enjoy being afraid to bend over at the water fountain because
they didn't know what was coming. And they were certainly embarrassed
that anything like this could have happened to them.''
Most people asked to envision
a sexual-harassment complaint from a man would probably think of ''Disclosure''-like
scenarios starring rapacious female bosses in pinstriped Armani. Maybe,
when reminded that men can file sexual-harassment suits against other
men, they might think of a gay boss coming on to a subordinate. Both
kinds of cases do occur (the latter more often than the former), but
judging from law journals and court documents, they do not represent
the typical harassment claim brought by men. A more common case involves
heterosexual men, often in blue-collar and service-industry jobs,
who object to the ''hostile environment'' created by the behavior
of other heterosexual men.
Since 1992 the percentage
of sexual-harassment charges filed by men with the E.E.O.C. and state
agencies has been increasing steadily, to 13.7 percent in 2001, from
9.1 percent in 1992. A total of 2,120 such cases were filed last year.
(The most common kind of harassment case by far still involves a woman
accusing a male co-worker or supervisor.) Men's claims of harassment
often center on what is considered ''horseplay,'' or what Bruce McMoran,
an employment lawyer in Tinton Falls, N.J., describes as ''bullying,
hazing, adolescent kinds of behavior.'' Sexual-harassment lawsuits
are not obvious or straightforward or even particularly sensible solutions
to the problem of men treating one another badly at work (or expecting
other men to like their crude jokes), but they seem to be the solution
we have hit upon.
Often the men who are
targeted and later bring claims of harassment are the weakest of the
herd -- younger, smaller or more effeminate than the men they work
with. But this is not always the case. Sometimes a big guy who is
a seasoned worker is picked on anyway, maybe because he's new to the
job or quick to register his distaste for his workplace's particular
rituals of boredom and aggression.
At a Harbert-Yeargin construction
site in Jackson, Tenn., where Joseph Carlton worked as a pipe welder
in 1996, for example, there was a lot of what the men who worked there
referred to as ''goosing.'' This could mean poking or pinching a guy
anyplace on his body, but more often it meant swatting or grabbing
his genitals. Carlton was goosed on two occasions soon after he took
the job -- once, he claimed, in a sneak attack while he was wearing
his welding helmet -- and he did not care for it. His attacker, he
said, was his crew chief, Louis Davis, and Davis's modus operandi
struck Carlton as a curious way to get to know a new employee. As
Carlton testified in court: ''I meet a man, I shake his hand. I don't
reach down and touch him in his personal area.''
Carlton was not some weedy
college boy. ''Joe's a big, good-looking country guy, maybe 6-foot-5
and 250 pounds,'' says his lawyer, Michael Weinman. ''The secretaries
in my office called him the Marlboro Man.'' Carlton wanted the job
at the Jackson site because it was close to his girlfriend's home.
And he was used to horsing around -- he had put in plenty of hours
at construction sites and shipyards. Goosing, though, was not something
he cared to put up with at work. ''I like to weld,'' Carlton testified.
''That's what I've always done. And I like to do a good job at it.
But I ain't never had nobody grab me.''
Carlton complained to
a supervisor at the site, who did not reprimand Davis but who did
transfer Carlton out of Davis's crew. By then, though, some of Carlton's
co-workers had heard about his complaints. To make fun of him, Carlton
said, they started to ''grab each other'' and ''hunch on each other''
whenever they saw him. It made work miserable in a new way. When Carlton
got on a truck to be transported around the site, he said, everybody
else would jump off, ''like I had the plague.'' Finally, Carlton decided
that he had no choice but to quit. The E.E.O.C., which investigated
Carlton's claim of sexual harassment, found three other employees
who told similar stories about life at Harbert-Yeargin, where workers
built and repaired machinery for a food-processing factory. In the
spring of 1999, the matter went to trial.
The proceeding was a curious
three-day semantics-fest involving fraught and detailed discussions
of the terms ''goosing'' and ''horseplay.'' Carlton testified that
when he worked in a shipyard in Newport News, Va., he would ''horseplay
a bit at lunchtime,'' but to him that meant doing something like covering
a colleague's welding visor with black tape. It wasn't the same as
some guy, out of the blue, grabbing another guy's crotch.
On the stand, Louis Davis
denied goosing Carlton below the belt and said he didn't recall doing
it to other men. But he added that at Harbert-Yeargin somebody probably
was goosed ''every day.'' You goosed some men, he said, because they
were ''goosey'' -- prone to startled reactions -- and it was funny
to see them jump. Davis said that he ''probably'' would have goosed
the three women who worked in the office if he had been around them
more often and ''if they was goosey.'' He allowed, however, that he
did not think he would goose the women below the belt.
Carlton was not the only
employee to testify about high jinks at the plant. Tony Warren told
the court that he drew the line when Davis started twisting his nipples
and had felt compelled to tell him that he ''didn't mind cutting up
a bit'' but ''didn't go for stuff like that.'' An instrument fitter
named Terry Dotson said he put up with goosing -- his tormentors,
he said, were a couple of contract electricians known as Smurf and
Possum -- but he never really got used to it. He wanted to hit Possum
when he grabbed him ''down there,'' but Possum was an old man, and
besides, Dotson didn't want to get fired for fighting. Sometimes he
thought getting startled like that when you were working on, say,
the pipe-threading machine, and trying your best to concentrate, might
be dangerous -- he'd seen guys get their sleeves ripped off their
arms on that particular machine. But luckily, he testified: ''I never
did get hung up in any equipment or anything. It was just -- I don't
know. It was just the aggravation of having to put up with it.''
Given the distribution
of the work force today, it's not surprising that some male-on-male
sexual harassment takes place not in blue-collar strongholds but in
the retail world and, in particular, in the fluorescently lit vastness
of suburban superstores. Sometimes in these cases you find men who
are offended by an almost perkily demeaning atmosphere, one in which
the insults are sexual in tone mostly because there just aren't that
many insults to choose from in the English language. A lot of these
harassers deride men by comparing them to women. Variations on ''bitch,''
which is so ubiquitous as to have lost its capacity to shock, if not
its payload of contempt, abound. As in, ''Come here, cashier bitch.''
As in, ''You talk like a bitch.'' Even ''sweetheart'' can sound nasty
if uttered in a certain tone of voice. Much of the rhetorical and
gestural language of male-on-male sexual harassment is borrowed directly
from adolescent rituals that have been around for decades: wedgies,
pants-yanking, rabbit punches to various parts of the body. They all
thrive on restlessness, a sense of unfair containment, the itch to
make something -- anything -- happen. Sexual insults are the ones
lying around and the easiest to pick up when you're bored with cranky
customers and their cranky kids and feel like messing with somebody's
mind, just getting a response out of somebody, even if it's to something
really dumb. But in that kind of atmosphere -- minimum-wage miles-of-aisles
tedium -- men and women often aren't treated all that differently.
The culture is hardly masculinist. And that complicates a sexual-harassment
case.
When Christopher Lack
worked the cash register at the Wal-Mart
in Beckley, W.Va., for example, his boss, James Bragg, was a tenacious
kidder. Bragg had a few favorite expressions, and he liked to toss
them around the store, where he was an assistant manager and Lack
was a salesclerk back in the mid-90's. ''Spank you very much'' was
the play on words Bragg favored for his telephone sign-off; ''penis
butter and jelly sandwiches'' was his lunchtime joke; and ''Oh, my
rod!'' was his preferred exclamation when he saw an attractive woman.
Lack, who eventually brought suit against Bragg and Wal-Mart for sexual
harassment, testified that Bragg wore him down with crass double-entendres,
often delivered in front of customers or co-workers. Once, when Lack
was helping a customer, Bragg came up to the counter and said, ''I
need a small bag, and not the one between your legs.'' When Lack called
Bragg over so that he could, for example, authorize a refund, Bragg
would say, ''I'm coming, Chrissy'' in a ''real sexual'' tone, Lack
charged. At the store Christmas party one year, Bragg sidled up to
Lack and a group of co-workers, grabbed his own crotch and said, ''Hey,
Chris, here's your Christmas present.''
Lack tried complaining
to Bragg but claimed that Bragg did not stop and indeed retaliated
by saddling him with a more punishing work schedule. ''You can say
it's horseplay, and men are all alike, but not all men are Neanderthals,''
says Sharon Iskra, the lawyer who represented Lack. ''Chris was this
decent, likable guy in his 20's. He was married, had a couple of kids
and needed a job but didn't want to put up with this kind of thing.''
You hear a lot these days
about how workplaces are rife with surliness and small-scale thuggeries.
You hear a lot too about how American culture in general is coarser,
more vulgarly sexualized and less respectful of privacy than it once
was. (''Contemporary vulgarism'' will soon doom enforcement of all
sexual-harassment law, a federal judge in Georgia argued last year,
and compel American workers simply to accept a certain amount of ''boorish
behavior'' on the job.) In one sense, male-on-male sexual-harassment
claims, with their tales of ''goosing'' and chuckleheaded verbal abuse,
corroborate these observations -- and indeed amplify them with an
elaborate catalog of indignities. But in another sense they contradict
them. It may well be that more men are using obscene language and
indulging in aggressive hazing rituals at the car lot or the factory
than they ever did. How would you ever measure such a thing? But it
is certainly true that more men are complaining in public about these
aspects of their working lives. (Sometimes they even complain about
collateral damage, like the restaurant manager who charged that the
owner's harassment of female employees created a hostile working environment
for him.) ''Twenty years ago these kinds of things would have ended
up with somebody getting beaten up in the parking lot,'' Bruce McMoran
says. ''Now they're more likely to end up in court.''
Complaints like the ones brought by Carlton and Lack represent a peculiar
development for sexual-harassment law and especially for the concept
of ''hostile environment.'' Feminist legal scholars first introduced
the idea of a hostile environment in the 80's, in response to the
fact that a lot of workplace harassment consisted not of bluntly quid
pro quo sexual solicitations (sleep with me, and I'll give you a promotion)
but of sexual jokes and vulgarity. Since women were presumed to be
more offended by coarse behavior than men were, a workplace in which
such joking was the norm was discriminatory by definition -- and a
violation of civil rights law, as opposed to a violation of sensibility
or privacy or taste.
The hostile-environment
idea has always been problematic, however, as the legal scholar Rosa
Ehrenreich, among others, has pointed out. Rather than assuming that
workplace harassment is wrong because women are human beings and all
human beings deserve to be treated with dignity, it assumes that women
are somehow ''uniquely vulnerable to men,'' as Ehrenreich puts it.
And the reason they are is that men are supposedly ''always vulgar
and loutish,'' or that women supposedly ''have 'special' sensitivities
and rights that men do not share.'' But the hostile-environment concept
becomes even more dubious if it turns out that a growing number of
men do share some of the same sensitivities, even when they work in
blue-collar settings, which some courts have held to a lower standard.
And the truth is that
male-against-male claims sit uneasily within the framework of sexual-harassment
law, even as they expose, in their own peculiar way, some of the persistent
weaknesses of that framework. Before 1998, it was not at all clear
whether same-sex harassment was even actionable. Harassment law as
we knew it owed a great deal to the feminist legal scholar Catherine
MacKinnon's gloss on Title VII, the provision of the 1964 Civil Rights
Act prohibiting discrimination based on race, religion and sex. Starting
in the 1970's, MacKinnon began elaborating an argument that sexual
advances in the workplace constitute discrimination against women,
the historically subordinated sex and the one most often on the receiving
end of such advances.
But this neat division
-- men as harassers, women as victims -- did not hold for long. Indeed,
by the mid-90's, the courts were besieged with male-on-male harassment
cases, the very last sort of cases that either the drafters of Title
VII or its feminist interpreters had ever envisaged. There was some
legal precedent for allowing that members of the same race could discriminate
against one another. ''Because of the many facets of human motivation,''
the Supreme Court declared in 1977, ''it would be unwise to presume
as a matter of law that human beings of one definable group will not
discriminate against members of their group.'' But this still left
the status of same-sex discrimination, let alone harassment, ambiguous.
Between 1992 and 1997, four different federal appeals courts, asked
to determine whether same-sex harassment was actionable, came up with
four different answers.
The Fourth Circuit ruled
that same-sex Title VII claims were actionable only if the accused
harasser was homosexual and could therefore be motivated by sexual
desire. The Eighth Circuit ruled that men could prove they had been
sexually harassed by other men if they could show that women were
not subject to the same debasing treatment. Since the treatment in
question in that case was ''bagging'' -- a variation on goosing that
targets the testicles -- anatomical literalism carried the day. Women
didn't have testicles, ergo only men could be bagged, ergo men were
bagged ''because'' of their sex and in violation of Title VII.
The Seventh Circuit, in
a 1997 case known as Doe v. City of Belleville, drew a sweeping conclusion
allowing for same-sex harassment cases of many kinds. Title VII was
sex-neutral, the court ruled; it didn't specifically prohibit discrimination
against men or women. Moreover, the judges argued, there was such
a thing as gender stereotyping, and if someone was harassed on that
basis, it was unlawful. This case, for example, centered on teenage
twin brothers working a summer job cutting grass in the city cemetery
of Belleville, Ill. One boy wore an earring, which caused him no end
of grief that particular summer -- including a lot of menacing talk
among his co-workers about sexually assaulting him in the woods and
sending him ''back to San Francisco.'' One of his harassers, identified
in court documents as a large former marine, culminated a verbal campaign
by backing the earring-wearer against a wall and grabbing him by the
testicles to see ''if he was a girl or a guy.'' The teenager had been
''singled out for this abuse,'' the court ruled, ''because the way
in which he projected the sexual aspect of his personality'' -- meaning
his gender -- did not conform to his co-workers' view of appropriate
masculine behavior.''
Meanwhile, the Fifth Circuit,
in Garcia v. Elf Atochem, issued an equally sweeping declaration of
the opposite bent. Garcia complained that while working at a chemical-processing
factory in Texas, a plant foreman continually grabbed him and ''made
sexual motions from behind.'' But the judges ruled that same-sex claims
of harassment, even those with ''sexual overtones,'' did not fall
under Title VII, which in their view addressed only ''gender discrimination.''
When, in 1998, the Supreme
Court set about resolving these formidable differences, it took up
the case of Joseph Oncale, a roustabout on an offshore oil rig whose
co-workers had selected him for various sex-related humiliations.
Not all sexual conduct in the workplace was unlawful, the court emphasized.
It had, first of all, to be ''sufficiently severe or pervasive'' to
''alter the conditions of the victim's employment.'' Just as important,
it had to be demonstrated that ''members of one sex are exposed to
disadvantageous terms or conditions of employment to which members
of the other sex are not exposed,'' thereby establishing discrimination
''because of sex.'' (In other words, the workplace would have to be
one in which men were the victims of harassment but not women.) If
these conditions were met, the court ruled, same-sex harassment was
indeed actionable. There was no language in Title VII suggesting otherwise.
In same-sex harassment
cases, the court elaborated, a plaintiff could prevail in one of three
ways. He could present credible evidence that the alleged harasser
was a homosexual and therefore motivated by sexual desire. He could
present evidence that the harasser was animated by ''a general hostility''
to men in the workplace (or, if the plaintiff was a woman harassed
by a woman, to women in the workplace). Finally, he could show evidence
of differential treatment of the sexes in a place where people of
both sexes worked.
But if the Supreme Court
clarified some questions -- particularly by specifying that same-sex
harassment need not be motivated by desire -- it left others cloudier
than ever. For one thing, as a practical matter it's hard to imagine
many circumstances in which men would be motivated by a general hostility
to other men in the workplace, while it is easy to imagine men motivated
by a general hostility to women in the workplace. A man might be subject
to annoying or even appalling assaults on his dignity every day at
work -- and they might be sexual in content -- but defining them as
discrimination is still a huge and awkward reach.
Moreover, the knotty logic
behind the Supreme Court's ruling has had some peculiar unintended
consequences, including the fostering of a rather perverse ''equal-opportunity
harasser'' defense. Following the court's argument that same-sex harassment
is an actionable offense only when there is disparate treatment of
the sexes in a workplace, then a workplace boor who treats men and
women with the same contempt is off the hook. The idea that you can
defend yourself by being equally awful to both sexes is ''just dumb,''
says David Sherwyn, a law professor at Cornell. ''It couldn't be what
anyone wanted out of this.'' Yet even Sherwyn has written that ''employers
are well advised to raise the prospect of such a defense in any litigation
and in settlement talks.''
In fact, the equal-opportunity-harasser
defense has been argued successfully. In the 2000 case Holman v. Indiana,
for instance, a husband and wife working for the state's Department
of Transportation charged that the same supervisor sexually harassed
them both. He asked the wife to go to bed with him and gave her negative
job evaluations when she rejected him. But he was also accused of
''grabbing the husband's head while asking for sexual favors,'' then
getting back at him for not complying by opening his locker and throwing
away his belongings. The Seventh Circuit Court of Appeals rejected
both the husband's and the wife's claims (and exonerated their boss-from-hell)
on the basis that ''conduct occurring equally to members of both genders
cannot be discrimination 'because of sex.''' The Supreme Court declined
to consider the case on appeal.
Christopher Lack, the
former Wal-Mart employee, eventually fell afoul of the same paradox.
A jury in West Virginia awarded him $80,000 in damages after a brief
trial in April 1996. But an appeals court overturned Lack's victory
in February 2001. He had not proved that he was subject to discrimination
as a man, the court concluded, because he had proved all too well
that his boss was an indiscriminate jerk. Bragg, the appeals court
said, was a ''vulgar and offensive supervisor, obnoxious to men and
women alike.''
Even Joe Carlton -- the
welder who didn't like being goosed -- ran into similar trouble. A
jury in Tennessee found in Carlton's favor in 1999 and awarded him
$300,000. But a federal appeals court overturned the verdict in September
2001. ''Since the conduct complained of in many of these sexual-harassment
cases is so offensive,'' wrote Judge Ralph Guy, ''a sense of decency
initially inclines one to want to grant relief.'' But Guy overturned
the decision because, in his view, the E.E.O.C. had failed to prove
that Carlton's harasser discriminated against men. Even though Louis
Davis had never goosed women at Harbert-Yeargin, he might well have
had there been more of them in goosing range. Besides, Guy argued,
it could hardly be said that Davis was motivated by a general hostility
to men in the workplace. ''Mr. Davis liked nothing better than to
have men in the workplace,'' he reasoned. ''If not, who else would
he roughhouse with?'' (The E.E.O.C. recently asked for a rehearing
of the case, though Carlton himself reached a settlement with Harbert-Yeargin.)
The case law is made all
the more confusing by the fact that while some male victims of sexual
harassment were clearly chosen because they are gay, sexual orientation
is not covered by Title VII, and anyone who claims harassment on that
basis, no matter how terrible the facts of the case, has no recourse.
One way to get around this is to argue that a man was harassed not
because he is a homosexual but because he is ''effeminate'' or ''walks
like a woman'' or wears an earring or lives with his mother and is
therefore a victim of what is known as gender stereotyping. Sometimes
he is or does one or more of these things and is heterosexual, like
the teenager who worked at the Illinois cemetery. And sometimes he
is gay, in which case he stands the best chance of winning if he has
never acknowledged at work that he is gay.
Earlier this year, for
instance, a judge allowed a Boston postal carrier named Stephen Centola
to proceed with his Title VII claims case against his employer. Centola
had been taunted by co-workers who demanded to know if he had AIDS
yet and left pictures of Richard Simmons in pink hot pants and a sign
that read ''Heterosexual Replacement on Duty'' in his work space.
Centola is homosexual, but because he had not said so at work, the
judge found sufficient evidence to support his claim that his co-workers
had ''punished him for being impermissibly feminine.'' Surely one
interpretation of such a ruling is that it pays to stay closeted at
work. Deborah Zalesne, a CUNY law professor, sums up the problem this
way: ''Basically, if your harasser is gay, you stand a good
chance of winning a same-sex harassment case. If you are
gay, you lose.''
But even this basic rule
of thumb is subject to strange variations. Last month a federal appeals
court in San Francisco overturned two earlier rulings dismissing the
claims of a gay butler named Medina Rene who said he was harassed
on the job at the MGM Grand Hotel in Las Vegas. Rene claimed that
he had been repeatedly poked in the behind and forced to look at pictures
of men having sex. In a 7-4 ruling by the Ninth Circuit Court of Appeals,
Judge William A. Fletcher declared that a worker's sexual orientation
is ''irrelevant'' in Title VII cases. By Fletcher's lights, the simple
fact that the physical assaults Rene claimed to have endured had ''a
sexual nature'' made them discrimination, and actionable under federal
law. But Fletcher's reading was a highly idiosyncratic interpretation
of Title VII. And the dissenting judges recognized this, concluding
that however ''appalling'' the behavior alleged, it did not constitute
a violation of federal antidiscrimination law. Meanwhile, two of the
judges who sided with Fletcher offered a very different reason: Rene
had a legitimate case not because the teasing he suffered was sexual
in tone and content but because he had been gender-stereotyped. Of
course, this argument raises its own questions: Does gender stereotyping
cover cases in which the man harassed is straight-acting but gay or
only those in which the victim, to put it bluntly, acts like a queen
but doesn't say he's gay? The only thing made clear by the Rene ruling
is that sexual-harassment law is messier and less coherent than ever.
Of course, when you're
a man in the midst of making a sexual-harassment charge against another
man, you're probably not thinking all that much about the vexed doctrine
behind it. You probably couldn't care less about the historical contradictions
of sexual-harassment law. Mostly you're thinking about how angry you
felt at work and about how relieved you are to have a way of legally
avenging yourself.
Not long ago I spent an
afternoon with Joseph DePronio, a graphic designer from Buffalo, N.Y.,
who recently became a plaintiff in a same-sex harassment suit. DePronio
is a handsome, angular 35-year-old with close-shaved hair, alert green
eyes and the half-hopeful, half-exasperated manner of somebody who
has always been a little more serious than the people around him.
Since he has been struggling with the weird burden of his lawsuit,
that divide has become even sharper. Relatives tease him about the
case at family parties, trotting out some choice smutty lines. Though
DePronio has a sense of humor, that kind of ribbing doesn't go over
well with him these days. He got himself a T-shirt this summer whose
slogan sums up his mood: ''I Get Enough Exercise Just Pushing My Luck.''
DePronio's wife, Tina,
is a hairdresser whose fingernails that day were painted with sparkly
silver stripes. She had the air of a naturally effervescent person
good-heartedly striving for a more somber tone. We sat in their living
room, watching their 3-year-old son, Joey, zip around in his Spider-Man
costume. For a while we talked about Joe's love of drawing, and how
he'd wanted to be an artist for as long as he could remember. As a
teenager he painted big portraits of his favorite rock bands: Black
Sabbath, Motley Crue, Kiss. When he was older he had a job in Sarasota,
Fla., turning architectural blueprints of new mini-malls and the like
into drawings that clients could relate to -- complete with brightly
attired families and puffy trees. But eventually DePronio found that
he had a particular knack for designing large-scale signs: billboards,
neon logos, multiplex marquees. He was delighted when, in 1999, a
company called U.S. Signs recruited him for a job in its small office
right outside Buffalo, DePronio's hometown. But it was in that office
that his life took an unexpected, and unwelcome, turn into Neil LaBute
territory.
Throughout the seven months
he worked there, DePronio says, a U.S. Signs employee named Corey
Perez filled DePronio's e-mail in-box with lurid material ranging
from off-color jokes to hard-core porn. (The complaint filed on DePronio's
behalf by the E.E.O.C. says that there were ''200 to 300'' such messages;
DePronio says that those were just the ones he was able to retrieve
and that in fact there were about 1,000.) Since Perez was a senior
account representative who brought in clients and assigned work to
DePronio, DePronio often felt obliged to open Perez's e-mail, which
might contain information he needed to know. But while DePronio says
he told Perez several times that he found the dirty jokes and images
offensive, Perez laughed off his protests and once sent him an e-mail
message that said, ''You love it sweet cheeks.'' Perez would not comment
for this article on any of DePronio's specific allegations, saying
only that ''the truth will come out at the trial.''
That afternoon at his
home, while Tina shooed Joey away, DePronio sat down at his computer
and flipped through dozens of what he said were Perez's e-mail messages.
We're all used to unwanted e-mail about hot teenagers and to tasteless
jokes sent to us and 50 other close personal friends. But this was,
I must say, an extremely outre archive, sort of like the fever dream
of somebody who had been locked up since childhood with a steady supply
of Bourbon Street novelty items and ''Girls Gone Wild'' videos. There
was a Ricky Martin cartoon adorned with dancing penises. A picture
labeled ''the perfect woman'' showed a naked female body with two
crotches and no head. There was a joke about something called ''the
girlfriend remote,'' containing buttons marked ''PMS: Off,'' ''Bra:
Off,'' ''Voice: Off.'' There were a number of nudie photographs --
old, young, fat, anorexic, male, female -- and several explicit video
clips of sexual acts. And on and on, into the far reaches of grossness.
''Look, I'm 35, I'm not
naive,'' DePronio said, after he turned off the computer. ''I know
what's out on the Internet. And I'm not an angel. I'm a normal person.
I'm not going to sit here and say I've never seen a pornographic video.
But this was in my office. This was my work. What if a woman -- somebody
I work with, a client -- walks in and sees what's on my screen? What's
she going to think? What's she going to do? I think some of this is
offensive to women.'' He paused for a moment, looking genuinely puzzled.
''I mean, is it just me, or is this really not funny?''
For a long time, DePronio
did not think of Perez's behavior as sexual harassment. He thought
of it as something he could stop by saying repeatedly that he didn't
like it; he thought of it as a bewildering and embarrassing daily
annoyance that put him in a lousy mood at work and at home too and
made him rue the day he moved back to Buffalo. For several months
he didn't even tell Tina about it -- wouldn't she figure he was inviting
this kind of e-mail somehow? -- and that made him feel worse, detached
from everybody around him. Perez sent many of the same e-mail messages
to a couple of other people who worked in the office, including one
woman. ''I felt they kind of accepted it,'' DePronio said. ''I was
the one who wasn't going along.''
What changed his mind,
and made him start thinking about his experience under the rubric
of sexual harassment, was what happened after he wrote a letter to
the company president detailing his complaints about Perez. At first
DePronio was told to work from home. A month later the company laid
him off, saying it no longer had enough work for him. (DePronio says
-- and the E.E.O.C. has charged -- that he was laid off in retaliation
for his complaints.) On the Internet he found a New York lawyer named
Jonathan Bernstein, who recommended a lawsuit. At the E.E.O.C. office
in New York they hooked up with a young lawyer named Raechel Adams,
who found the fact that this was harassment mainly by e-mail particularly
interesting. DePronio hoped that the suit -- when it is finally over,
that is; for these things can drag on for years -- would help him
feel better about an episode in his life that had left him demoralized
and depressed.
But when I talked to him
over the summer he wasn't so sure. ''Will it help?'' he said. ''Who
knows? A big part of me would still have preferred if there had been
some way to sit down and talk with somebody at the company and end
it that way without lawyers and everything.''
For several years now, legal scholars and others have been arguing
that sexual-harassment law is deeply flawed. After ''almost two decades
of litigation,'' as Kathryn Abrams, a feminist legal scholar, has
written, it is a doctrine still riddled with ''inconsistencies, exclusions
and misunderstandings.'' It is hardly self-evident, even this late
in the game, for instance, why sexual overtures should be conceived
of as a form of discrimination. As Jeffrey Rosen, who writes widely
about legal issues, has observed: ''Discrimination usually implies
some form of contempt for a class of people being singled out for
disadvantageous treatment as a consequence of their shared characteristics.
Unwanted advances, by contrast, often involve a man's attraction to
a particular woman because of her unique characteristics.''
The explanations usually
offered for thinking of sexual harassment as a civil rights violation
are each in their own way unsatisfying. Is harassment discrimination,
Rosa Ehrenreich asks, ''because a man who propositions a female employee
would presumably not have propositioned a male employee, and thus
the propositioned woman has been treated differently than her male
colleagues because of her sex? Is it because sexual harassment is
motivated by hostility to the presence of women in the workplace?
Is it because, in a context of patriarchy and sexual violence against
women, the mere presence of sexuality in the workplace, however motivated,
is inherently threatening to women and prevents them from enjoying
their work and succeeding on the same basis as men?''
The first explanation
relies on a limited and formalistic notion of equality. The second
neglects the fact that while sexual harassment may be motivated by
hostility to women in the workplace, it frequently is not. (It may,
for instance, be motivated by attraction to a particular person.)
The third offers a paternalistic view of women as paradigmatic victims
in need of protection from all forms of sexual expression.
In her critiques of harassment
law, Vicki Schultz, a Yale law professor, points out that the emphasis
on the specifically sexual content of harassment is unfortunate in
two ways. On the one hand it ignores other kinds of unequal treatment
that may in fact be more damaging: male supervisors refusing to provide
required training or work materials to women, declaring that no woman
could ever do the job in question, announcing that women are dumb.
(In cases involving all of these examples, courts have declined to
consider them harassment.) And on the other hand it can induce companies
to clamp down on any hints of sexuality in the workplace, including
friendly banter in which women might willingly engage. We've all heard
the stories of sexual-harassment codes gone way overboard: the Miller
brewing company executive fired for retelling the ''Seinfeld'' joke
about the woman whose name rhymed with ''clitoris''; the teaching
assistant whose desktop photo of his scantily clad wife elicited a
hostile-environment complaint. The prevailing legal view of harassment
is ''both too narrow and too broad,'' to Schultz's mind. ''Too narrow
because the focus on rooting out unwanted sexual activity has allowed
us to feel good about protecting women from sexual abuse while leading
us to overlook equally pernicious forms of gender-based mistreatment.
Too broad because the emphasis on sexual conduct has encouraged some
companies to ban all forms of sexual interaction, even when those
do not threaten women's equality on the job.''
But even when it is not
stretched to absurd extremes, sexual-harassment law has become a clumsy
substitute for manners. Useful and important as it has been in opening
up some workplaces to women and in reminding employers not to treat
their offices as private dating pools, sexual-harassment doctrine
and the threat of a lawsuit cannot replace informal codes of civil
behavior. Yet we often seem to expect them to, pinning our hopes for
fixing workplace relations between the sexes -- and now within them
-- on litigation, as we pin so many of our hopes for social regeneration.
If these problems have
been in evidence for some time now, though, the increase in male-on-male
sexual-harassment cases makes them much starker. It underscores the
intellectual incoherency of the whole doctrine. It raises the awkward
problem of the equal-opportunity harasser. It wreaks havoc with the
notion, so central to sexual-harassment law till now, that sexual
expression in the workplace hurts women more than men. It casts into
bold relief the absence of sexual orientation from Title VII's list
of protected characteristics.
And when sexual-harassment
law is extended to men accusing other men, it assumes that motivations
for noxious behavior are straightforward -- hostility to men in the
workplace, for instance -- when they are more likely weird, involuted
and mysterious. Goosing, to take one example, might seem to be the
very simplest, or at least simple-minded, of acts. (It only really
makes sense when gooser and goosee are 12-year-olds.) But its motivations
are, in their own way, fairly complex: boredom, repressed attraction,
a need to humiliate a co-worker out of personal dislike or to establish
one's dominance, even a sense that participants are perpetuating --
don't laugh -- a tradition.
It is equally hard to
demonstrate that gender stereotyping -- a provocative but slippery
notion -- motivates harassment. As Joseph Carlton's case shows, not
all male victims fail to conform, in any clear-cut way, to their harassers'
norms of masculinity. And attributing harassment to ''hostility to
men'' in the workplace seems an even thinner reed. You could imagine
a situation in which, say, a man employed in a nail salon might feel
oppressed by his female co-workers. But most charges of sexual harassment
brought by men are probably not brought against women, and the typical
case seems to involve a mostly male workplace.
None of this is to say
that workers should have no recourse when they suffer assaults on
their dignity and privacy. There's no good reason that a man should
go to work and be grabbed every day. There's no good reason that Joe
DePronio should tolerate gross-out e-mail from a supervisor every
day. It's just to say that not all of these assaults should be called
discrimination and be treated as violations of Title VII. It may be
possible to handle more of them through mediation and to prevent others
by recognizing that not all men, white-collar or blue-collar, share
the same sensibilities.
More broadly, the whole
paradigm of sexual harassment, and in particular its anchoring in
discrimination law, is due for reconsideration. Sometimes sexual harassment
is discrimination: sexual humiliation can be part of a concerted campaign
to keep women out of a workplace, for instance. But often the harm
it does is less to one's equal standing as a man or a woman than to
one's dignity or autonomy, regardless of sex. Rosa Ehrenreich has
argued that it makes more sense to think of sexual harassment as a
harm to dignity -- a concept that tort law has long recognized --
than as a form of discrimination. Harassment may occur in a context
of discrimination against women, but the harm it inflicts is something
different, she observes. The harm is its violation of ''each individual's
right to be treated with the respect and concern that is due to her
as a full and equally valuable human being'' -- and, in practical
terms, to do one's job to the best of one's ability. Many cases now
brought under Title VII could instead come under tort laws, like those
proscribing battery (which is defined, broadly, as ''a harmful or
offensive contact with a person'' made with intent), assault, intentional
infliction of emotional distress and invasion of privacy. One objection
to this approach is that there would be less money to be won, since
victims would often be going after the individuals who tormented them
rather than after deep-pocketed companies that employed them. That
doesn't necessarily seem to be a bad thing, though, especially if
it discourages frivolous or opportunistic suits.
''Actions that would humiliate,
torment, threaten, intimidate, pressure, demean, frighten, outrage
or injure a reasonable person are actions that can be said to injure
an individual's dignitary interests and, if sufficiently severe, can
give rise to causes of action in tort,'' Ehrenreich writes. Often
these concepts come far closer to the facts of sexual-harassment cases
than the concept of discrimination does. This approach has the virtue
of preserving the legitimacy and coherency of antidiscrimination law
while still recognizing that bad things happen between people at work,
some of which may be susceptible to legal remedies. All discrimination
entails harm to dignity, but not all harm to dignity is discrimination.
Back in 1996 a man named
Phil Quick won a settlement from a muffler production plant in Grinnell,
Iowa, where bagging was a popular practice. When he was hired there,
even the plant manager warned Quick that it could happen to him. And
sure enough it did; Quick said that co-workers grabbed his testicles
about 100 times over the course of several months, on one occasion
hard enough to injure him. The company never denied that bagging was
pervasive at the plant, that Quick was a victim of it or that management
knew about it and failed to do anything to stop it. But company lawyers
argued that Quick was bagged -- and addressed with homophobic epithets,
though he is straight -- not because of his sex but because of personal
enmity. (Some of his co-workers were angry at him for withdrawing
his union membership.) Quick prevailed, not because he could prove
a pattern of anti-male animus at the plant but because, to put it
baldly, only men have testicles. Of course, no one could deny that
Quick was subject to ill treatment. But was it discrimination based
on sex? Only in the narrowest, most anatomically bound sense.
In any event, Quick isn't
all that happy with the outcome of his lawsuit. He wishes that his
case had gone to trial, so that people he knew didn't have the impression
that his grievance was ''all about money,'' when it was really about
''how you treat other people.'' Nowadays he thinks that bringing a
sexual-harassment suit was probably the hardest means of redress he
could have pursued. He says that people look down on him for going
that route, even in his hometown in Iowa, where he counted on some
good will. ''Harsh things have been said to me by people I've known
my whole life,'' he says. ''Not people I'd consider my friends, but
still. There's not much empathy in the general populace for men who
make same-sex harassment claims. People just don't understand it.
I guess they think you're weak or something.''
Margaret Talbot is a contributing
writer for the magazine and a fellow at the New America Foundation.
