Sexual Harassment and Race: A Legal Analysis of Discrimination

manner: one can be insulated from racial tensions by geography, social position, or wealth. Sex and power, however, are daily issues that are always perceived in an intimate and personal way. As a result, it is in the best interest of the dominant class in society that the magnitude of the sex-power problem remain obscure in order to maintain the status quo. CATEGORIZATION OF HARASSMENT CASES Because sexual and racial discrimination have underpinnings that are both different and the same, it is not surprising that the two forms of harassment are manifested in ways that are both similar and dissimilar. The categorization of harassment into a generalized harassment model and an exploitative-harassment model facilitates the analysis of racial and sexual harassment issues. Equal Employment Opportunity Commission v. Murphy Motor Freight 9 exemplifies the generalized harassment model in a racial discrimination case. Racial epithets were written on the walls of the plant, the black employee was isolated by his coworkers in the company lunch area, and his car tires were slashed. The district court found the company's working environment to be permeated with racial harassment and intimidation. Brown v. City of Guthrie,20 on the other hand, presents a case of generalized sexual harassment. In that case, plaintifi's supervisor and colleagues (all police officers) subjected her to lewd comments and gestures, displayed pornographic pictures and made comparisons with her body, and replayed and commented upon video tapes of strip searches of female prisoners. A variation of this generalized harassment model occurs when an employer subjects a female employee to harassment by others who do not work with her. For example, in Equal Employment Opportunity Commission v. Sage ReaZy Corp. ,21 the female employee was discharged for refusing to wear a provocative and revealing costume during her employment as an elevator operator. The court held that this job requirement, which subjected the complaining employee to harassment by the public, constituted a term or condition of employment made unlawful by Title VII. The pattern of generalized harassment which usually appears in all racial harassment cases does not appear in all sexual harassment cases. 19. 488 F. Supp. 381 (D. Minn. 1980). 20. 22 Fair Empl. Prac. Cas. 1627 (W.D. Okla. 1980). 21. [19811 4 EMPL. Pa.c. GUIDE (CCH) (24 Empl. Prac. Dec.) 19, 163 (S.D.N.Y. Jan. 29, 1981). [Vol. 8:30 Sexual Harassment and Race There is a model of harassment unique to sexual harassment, the exploitation-harassment model. This model involves pressure upon a woman for sexual favors with an implicit or explicit statement that noncompliance will jeopardize her employment situation. This form of sexual harassment presents two basic problems in the public mind. One difficulty with the exploitation cases is that they lack a ready framework for analysis. The generalized sexual harassment cases can be dealt with much like the racial harassment cases. Women making an analogy to racial harassment can "bootstrap" claims of sex discrimination onto the racial analysis. Those claims might receive, therefore, the greater consideration that is given racial discrimination in the legal system. Another problem is that the line between flirtation and sexual exploitation may be a subtle one. Exploitation is sometimes difficult for even women to recognize and more difficult to demonstrate to others. In the generalized harassment cases, either racial or sexual, a cause of action arises when an employee has been ridiculed, intimidated, or degraded because of his or her sexual or racial identity. In the exploitation cases, however, the normalcy of male-female sexual interaction and the "normalcy" of male aggression and dominance cloud the issue; courts are unsure if a cause of action is present. As the district court noted in Barnes v. Costle, plaintiff introduced evidence of an "inharmonious personal relationship" but not of a Title VII violation.22 The exploitation cases also raise the fear that men engaged in harmless flirtation will somehow find themselves in violation of the law, victims of character assassination. It has been suggested, therefore, that charges of exploitation harassment be corroborated.23 The concerns raised about the legitimacy of sexual harassment complaints are similar to those raised about rape charges: (1) a fear of malicious prosecution and a concomitant need for corroboration; (2) a generalized feeling that sexual encounters are a "natural phenomenon" and that it is inappropriate to invoke the law to deal with them; and (3) the view that women somehow invite the unwanted sexual attention.24 Therefore, in order to understand the fears and evidentiary problems raised by these similar issues, it is better to analogize exploitation cases to rape, rather than to the generalized harassment cases. It is useful to examine the well-reasoned decision in Heelan v. Johns-Manville Corp. ,25 an exploitation-harassment case, to see how the trial judge scrutinized the evidence in the case, assessing the credibility of the witnesses. The court held that "sexual harassment of female employees is 22. See note I supra. 23. Sexual Harassment in the Federal Government. Hearings Before the Subcomm. on Investigation of the House Comm. on Post Office and Civil Service, 96th Cong., Ist Sess. 11, 67, 110, 122-24 (1979). 24. C. MACKENNON, SEXUAL HARASSMENT IN THE WORKPLACE 47-48 (1979). 25. 451 F. Supp. 1382 (D. Colo. 1978). 19811 Journal of Legislation gender-based discrimination which can violate Title VII."'2 6 The opinion is significant because it illustrates that sexual exploitation cases can be presented within the framework of Title VII. Categorization of sexual harassment cases into a generalized model or an exploitation model facilitates legal analysis by providing a clearer understanding of the analytic relationship between sexual and racial discrimination cases. One can determine when legal analogies will be relevant and helpful. The following principles, developed in racial harassment cases, have been applied appropriately to both types of sexual harassment: (1) one incident of harassment generally does not rise -to the level of a Title VII violation;27 (2) harassment which is harmful to plaintiffs working environment may constitute a violation of Title VII. 28 Another principle that emerged in a broad-based sexual discrimination case holds that the existence of sexual harassment is probative on the existence of other kinds of sexual discrimination.29 This last principle should be followed in all harassment cases. Another developing concept is that when only one person complains of harassment, plaintiffs case is weakened.3" The courts seem to be searching for a statistical pattern to support the individual claim of harassment. Repeated incidents of harassment are more probative in generalized harassment cases, where it seems unlikely that only one of a group would be singled out for harassment. Statistical evidence, however, is of limited value in the exploitation-harassment cases, where the selection of one female as a sex partner is not at all unlikely. As the Court of Appeals for the District of Columbia noted in Barnes v. Costle, a cause of action for sexual discrimination can be maintained under Title VII, even though no other individual of the same gender