Why Title Vii Should Prohibit All Workplace Sexual Harassment

Abstract

Legal scholars have generally taken two approaches in explaining why sexual harassment is unlawful under Title VII. In one camp, scholars have argued that Title VII prohibits sexual harassment because it is "a form of sex discrimination." Other scholars have rejected these arguments and maintained that "discrimination because of such individual's sex" simply means that employers may not treat members of one sex differently from members of the other sex. Scholars in this camp have been critical of sexual harassment doctrine, arguing that courts should not prohibit all sexual harassment because not all of it qualifies as sex discrimination. For their part, courts have fluctuated between these two incompatible approaches depending on the type of case being decided. In the paradigm case of a man sexually harassing a woman, courts have frequently stated, "sexual harassment is a form of sex discrimination," although no court has explicitly adopted the reasoning on which such a conclusion must be based. Thus, courts have found employers liable whenever the plaintiff has proven that she was sexually harassed. But in cases of same sex sexual harassment or the sexual harassment of gay men and lesbians, courts have retreated and held that employers were not liable under Title VII even though the plaintiff had been sexually harassed. The goal of this article is to resolve this conflict by showing why courts may legitimately prohibit all sexual harassment regardless of the approach a court adopts or its definition of discrimination. Thus, its basic conclusion is that all plaintiffs should have a claim if they prove that that they were sexually harassed - regardless of their sex or sexual orientation. This article assumes, arguendo, that sex discrimination means treating men and women different but concludes that courts should still prohibit all sexual harassment because it serves as a good adjudicative rule for courts to apply to individual cases.