Going offshore: horseplay, normalization, and sexual harassment.
As the previous section showed, the leading feminist accounts have tended to imagine sexual harassment as perpetrated by the enforcers of an abstract male order who embody the norms of an aggressive and capable heterosexual masculinity. Yet, as I have argued, particularly in cases of horseplay, the perpetrators of harassment take up an explicitly counter-normative mode of sexualized power towards other men. In order to understand the social dynamics behind such counter-normative acts, we must go beyond the horizon of gender hierarchy in order to explore the social contradictions lodged within the contemporary articulation of white working-class masculinity. To do this, we must turn back to the working-class male workplaces described in this Article's opening in order to better understand the shifting cultural dynamics and social investments that have shaped and reshaped these workplaces, as well as these workers, over recent decades. But it is important to note in advance that the intersectional analysis of white working-class man is intended to be exemplary rather than unique: it serves to demonstrate that any appeal to an abstract male order ignores the multiple, overlapping, and contradictory forms of identification that unfold along lines of race, gender, class, and sexuality (to name only the most obvious). Furthermore, this analysis is not designed to explain the historical causes of horseplay or any other form of sexualized abuse, but to apprehend the social meaning that such gendered acts have within our own historical context.
With those caveats in mind, this section offers a historical account of how a specific organization of race, class, and gender associated with white working-class men has been reworked in conjunction with the broader economic, political, and social dynamics of the twentieth century. The white male worker took definition at the start of the century within the Fordist and Keynesian socioeconomic order that stretched from the New Deal to the Great Society and which helped to enable the institutions and attitudes characteristic of white working-class life. With the economic crisis of the late 1960s and early 1970s, this provisional order underwent a prolonged crisis that led to a fundamental restructuring of U.S. society, including a reimagination of the component parts of these workers' identities: virility, whiteness, and labor. The white male worker would survive into the 1980s as the political face of backlash, betrayal, and reactionary anger. Yet the white worker was also the unacknowledged offspring of the very post- 1960s identity politics he appeared to decry, constructed from the same cultural template as black power, second-wave feminism, and post-Stonewall gay liberation. As a point of social identification, then, the "white worker" now self-consciously bears the scars of economic decline, political disenfranchisement, and social victimization that position him, certainly no longer as a representative of gender norms, but as one of many competing figures for political redress in the post-civil rights era. As a result, even for white working men who remain within familiar working-class and unionized occupations, the broader social meaning of "white working-class masculinity" has inescapably changed due to the general dismantling of white industrial masculinity and its reanimation within a politics of resentment. Indeed, for a broad range of social actors that are not themselves white, working-class, or even male, a generic male power might continue to circulate as a symbolic resource: a cultural repertory of gender-specific acts able to provide a visceral (if temporary) sense of power when other avenues of social power appear foreclosed. (180)
A. The Rise and Fall of the Industrial Working Class
In order to grasp the growing contradictions in white working-class masculinity, we need to step back to understand how this particular segment of U.S. society could be seen as "normal" at all. For, in the decades after the 1880s as U.S. industrialization began in earnest, the large-scale arrival of Jewish and Catholic immigrants from Eastern and Southern Europe stoked nativist fears of race suicide and led to these immigrants' exile to the outermost margins of U.S. society--forced into irregular employment in exchange for poverty wages, working in abject conditions by day and living in overcrowded one-room tenements by night. (181) Yet, following the social, political, and economic upheavals of the Great Depression, the New Deal, and World War II, the postwar era presented a time of long-awaited prosperity for this and other working-class groups. Under the emergent Fordist-Keynesian regime, the postwar settlement between labor and capital generated a period in which rising corporate productivity and profits were linked to cyclical increases in worker wages overseen by collective bargaining and the threat of work stoppage. (182) In contrast to the disastrous economic policies of the 1920s, which kept worker wages at subsistence levels and thus precipitated the crisis of overproduction in the 1930s, the postwar era created a dynamic system that synchronized mass production with worker wages and mass consumption. (183) The result was a massive reshaping of the white working class. During this period, perhaps a quarter of the U.S. population achieved middle-class status, including those semi-skilled white ethnic working families that formed the backbone of the industrial workplace. (184) Mass consumption of cars, houses, and household appliances was underwritten by national policies supporting home loans, tax relief for mortgages, and the subsidization of the federal highway system, which then rendered possible the exodus into the suburbs during the 1950s and 1960s. (185) New possibilities for educational mobility also reshaped the white working-class family through the Servicemen's Readjustment Act of 1944, better known as the G.I. Bill, which allowed almost eight million World War II veterans--half of all those serving in the war--free college education. (186) By the 1960s, over half of the high school graduates in more affluent states like California were going to college. (187) As a result of these postwar changes, by the early 1960s the social and economic realities of large sections of the white working-class had been significantly altered by their incorporation in the expanding cycles of Fordism. Whereas, only a generation before, working-class families had been trapped in dead-end, casualized jobs and living in rented tenements, a large proportion now enjoyed high-paying union jobs and homeownership, as well as the promise of a college education and even greater upward mobility for their children.
Unfortunately, much of that advance stalled or was undone following the crisis of the late 1960s and early 1970s. The first indicators were economic. As early as 1966, U.S. corporate productivity and profitability had begun to decline and would continue to do so for the next fifteen years. (188) Domestic manufacturing, in particular, began to face steep challenges from Japan and Germany as these countries completed their postwar economic recoveries and sought to expand their export markets into the United States. (189) Oil embargoes imposed in 1973 in retaliation for support of Israel during the Yom Kippur War caused U.S. oil prices to spike 387 percent. (190) The following year, the short-term oil shortage was institutionalized as a long-term energy crisis as OPEC raised the price of oil among its member nations, causing the price of overseas oil to jump from $1.77 a barrel in October 1973 to $10 a barrel in early 1974. (191) In the mid-1970s, as the keenest pangs of the oil crisis receded and the sharp recession of 1973 passed, the country settled into the economic malaise of "stagflation," coupling the stagnant output of goods with the unprecedented growth of unemployment and inflation.
Taken together, these changes signaled the growing inability of the Fordist-Keynesian system to remain master of the contradictory tendencies of the emergent global economy. (192) The corporate capitalism of postwar Fordism required large-scale fixed capital investments in the mass production of relatively uniform consumer goods--automobiles, televisions, refrigerators, washers and dryers--that presumed the insatiable growth of consumer demand. But after suburbanization slackened and the domestic durable market became saturated, (193) international competition eroded the remaining domestic market for American companies. By 1971 the United States imported more goods than it exported for the first time in the twentieth century. (194)
For white working-class men, the effects of this crisis were particularly acute, as they eroded many of the hard-won gains of the postwar decades. As corporations attempted to restore profitability, the postwar compact between labor and capital was predictably abandoned. Initially, organized labor pushed back against inflation, new forms of automation, and the loss of rank-and-file control over workplaces. (195) But labor militancy could succeed only so long as there were profits to be shared. As the 1970s progressed and profitability continued to decline, American companies had little to lose from labor action. Facing economic stagflation at home and steep competition from abroad, American manufacturing fled to the open shops of the West and South. (196) At the same time, the number of workers in the manufacturing industry as a whole--the traditional core of union power--shrank as a percentage of the national labor force, further weakening union influence, even as the number of women, part-time, and service employees, largely outside of unions, continued to rise. (197) Unionization rates in the private
sector dropped to twenty-two percent by 1979, and between 1973 and 1979 the number of days that strikes disrupted businesses fell approximately one-quarter. (198) As American businesses restructured and retrenched, they explicitly sought to use the economic malaise to weaken or break the power of unions, first through the use of replacement workers (199) and later through the lay-offs, plant closings, and bankruptcy proceedings that rendered labor militancy irrelevant. (200) The result was a growing tide of concessionary bargaining and labor give-backs. (201) If any doubt remained regarding the relevance of unions, President Reagan put them to rest by summarily firing over eleven thousand striking air traffic controllers in 1981. (202) The early 1970s thus formed the turning point in the fortunes of white male workers: after seeing their wages rise forty-two percent in the 1960s to reach a peak in 1972, the crisis of 1973 would precipitate a decline that would continue for the next twenty-five years. (203)
B. From the "Silent Majority" to Bakke: An Identity Politics of the White Working Man
In 1974, the cultural resentments of working-class white men found an unlikely hero in the figure of Allan Bakke: exemplary white male, ex-Marine, Vietnam veteran, and plaintiff of a lawsuit against the University of California alleging that the special admissions program of the medical school at Davis operated to exclude him from the school on the basis of his race in violation of the Fourteenth Amendment. (204) Bakke's lawsuit also usefully summarizes the more complex cultural transformation in the meaning of the white working man from untroubled representative of mainstream America to marginalized and angry icon of "reverse discrimination." One source of that cultural transformation was, of course, the economic changes already surveyed. Under the Fordist-Keynesian regime of the postwar era, the white working man had come to embody a particular hegemonic form of masculinity around which was woven a broader symbolic image of U.S. society, including the nuclear family, the working class home, the union hall, and the Catholic Church. (205) However, with the social turbulence of the 1960s and the economic crisis of the 1970s, this social order appeared to many to be imperiled. In the wake of the civil rights and free speech movements, Vietnam and the anti-war movement, and stagflation and the rustbelt, the contours of white working-class life were reshaped as the meaning of work, gender, and race all underwent transformation. (206) The postwar model of white working-class identification became difficult to maintain and increasingly available for cultural rearticulation. (207) By the early 1970s, Allan Bakke's isolated struggle for admission to medical school could be felt as culturally representative of the general dispossession of working white men from the center of U.S. life, as well as the incipient formation of a new politics intended on channeling this anger into a larger political and cultural agenda.
From the mid-1960s through the end of the 1970s, various avatars of this disgruntled and disenfranchised white working man circulated in U.S. culture, prefiguring Bakke's historic discrimination claim. (208) Significantly, these images typically evoked a now obsolete Cold War masculinity whose assertion of normality derived, not from widespread social investment, but from an appositional stance towards the burgeoning counterculture--an opposition to opposition, so to speak. In 1969, for instance, journalist Pete Hamill painted an explosive portrait of the "white working class" as a "people on the edge of open, sustained and possibly violent revolt," squeezed between "It]axes and the rising cost of living" and consequently resentful of government hand-outs to undeserving minorities demanding reparations. (209) Similarly, in his November 3, 1969, speech, Nixon made his famous appeal to the "silent majority" as a counter-image to the "vocal minority" who wished to "impose [its opinion] on the Nation by mounting demonstrations in the streets." (210) Such figures appeared not only in the media but increasingly on the streets as well. Such a spectacle occurred on May 8, 1970, when two hundred construction workers in downtown New York descended upon students protesting the recent Kent State killings. (211) Later christened the "hard-hat riots" by the media and turned into a series of increasingly staged demonstrations of pro-Nixon support in the months to follow, in its original, less orchestrated form, construction workers chased down and beat student protesters for more than two hours, leaving seventy people injured. Another shocking example occurred in the fall of 1974 during the anti-busing protests of South Boston, Charleston, and Hyde Park, as working-class white protesters attacked school buses, chanted racist slogans, and fought riot police in an effort to halt mandatory school desegregation. (212) Against this cultural backdrop, the resentments of marginalized whites could coalesce around Bakke's own grievances and the image of white masculinity as a source of injury.
Such images were symptomatic of the many ways in which the vanishing world of the steady union pay check and the all-white neighborhood were actively being reworked as a point of identification for a broader political and cultural movement seeking to arouse and harness working white disaffection. Given the power vacuum created by the unraveling of the New Deal political and legal order in the 1970s, it is unsurprising that conservative elements within the Republican party would be the first to formulate a new hegemonic project claiming to make sense of troubled times. (213) That project emerged in the form of the New Right, mixing economic free-market liberalism with reactionary social conservatism and thereby coming to redefine the framework of mainstream political discourse to the present. (214) Within the cultural landscape of post-New Deal, post-civil rights America, the white working-class man was cast as a central actor in the New Right's reinterpretation of the 1960s, in which the "liberal Democratic establishment" (to borrow George Wallace's phrase) had abandoned the bread-and-butter economic issues and social values of ordinary working people in order to accord preferential treatment and special constitutional protections to various "special interests," including racial minorities, prisoners, women, gays and lesbians, students, criminal defendants, and the mentally ill. (215) In this retelling, taxation was the illegitimate redistribution of wealth away from the hard-working white working class to "undeserving" blacks and Latinos who enjoyed the benefits of public housing, Medicaid, food stamps, and other government welfare programs without contributing to the public coffers. (216) In different ways, Howard Jarvis's Proposition 13, Reagan's hatred of "big government," and Clinton's promise to "end welfare as we know it" were all rooted within this post-1960s political landscape.
Yet it is not simply, as the New Right political narrative implies, that the white working class shifted political allegiances in response to liberal betrayal. It is also not simply, as the counternarrative on the Left has sometimes charged, (217) that white workers were the victims of political manipulation that used social issues to push white workers to vote against their own economic interests. Whatever the truth of these two arguments, the fact is that white working men were placed in a highly contradictory social position during this period. In the 1940s to 1960s, the Fordist-Keynesian regime of the postwar period had incorporated white working-class men within the dominant mode of regulation and built around them the broader set of political and social investments already described. The white working male had come to symbolize this contingent alignment of forces and to experience that relationship as a basic feature of his selfhood--derived from his whiteness, his masculinity, and his status as a worker. When this investment was withdrawn after the 1960s and 1970s, the white male worker did not simply dissolve into a different configuration of alliances and identifications, but was seized upon and given a second, unnatural life by the New Right. The New Right worked to facilitate the general cultural and political investment in a largely anachronistic figure--the image of the 1950s working-class family and the "Golden Era" of postwar America (218)--which could channel social disaffection into a post-New Deal order. (219) White workers were thus placed in an anomalous position: maintained as an active political figure, yet only through an identification with social and economic relations that no longer existed. (220) Hence the contradictory position described earlier--suspended in the gulf between the symbolic identification with power that was embodied in their status as white, working class, and male, and their real and perceived exclusion from the actual social, political, and economic arrangements of the last four decades.
Perhaps this contradictory position is best captured by the discourse of victimization and "reverse discrimination" that emerged in the late 1960s and 1970s. (221) Bakke, in fact, represented something potentially very different from the other symbols of white working discontent in the period: for, in contrast to Nixon's "silent majority" or the construction workers who brutally beat anti-war protestors--voices of cultural resentment that nonetheless asserted their rightful place as the normative center of American society--Bakke couched his claims in the language of race, identity, and injury that owed as much to the civil rights movement as to the virulent racism of Boston's anti-busing demonstrators. And, in fact, Bakke's lawsuit can been seen to embody the more complex cultural work through which working-class "whiteness" was racialized and rendered available as a form of post-civil rights identity politics. (222) As cultural historians have shown, part of that work was done through the dramatic resurgence of "white ethnicity" in the 1970s, spawning white ethnic organizations such as the Italian American Civil Rights League, popular quasi-sociological tracts such as Michael Novak's The Rise of the Unmeltable Ethnics, and films like The Godfather. (223) Yet, despite its superficial nature, white ethnicity provided the necessary social cover for the deeper cultural replacement of the nineteenth-century idea of Anglo-Saxon whiteness with the "recovered" idea of multiple, ethnicized Italian, Polish, and Irish white identities. (224) Then, after the fad of white ethnicity passed by the mid-1970s, these multiple identities could be reconsolidated into a single racialized form of working-class whiteness that was available without regard to actual cultural heritage. (225) Reference to "white ethnicity" became, from this perspective, redundant because whiteness as such had been reimagined as an ethnicity.
This racialization had, in turn, been rendered possible by a number of more profound historical transformations. Most directly, white ethnicity was created from the template of the militant black cultural nationalist movement, which had forsaken the integrationalist ideals of the civil rights movement and gained its most popular representatives in Malcolm X and the Black Panther Party. (226) Less directly, the influx of non-European immigrant groups from Asia and Latin America after 1965 permitted whiteness as well as blackness to appear as two racial identities among many others. (227) In a more fundamental sense, white ethnicity drew its energy from the cultural and political authority that only a claim to race could offer. In the wake of the civil rights movement, overtly racist language had been officially delegitimated, forcing working-class whites to seek a new vehicle for the expression of political demands. (228) Building on the black nationalist paradigm, white ethnicity offered working-class whites a way to retrieve a history of oppression, common suffering, and shared discrimination that would allow them to compete with African Americans, Asian Americans, Latinos, and others in the struggle for political recognition. (229) It is in this specific sense that the white working man was reimagined as a form of identity politics. The result was an internally contradictory racial politics, to say the least. On the one hand, angry white ethnics became the public face of the backlash and the incarnation of Nixon's silent majority. On the other hand, white ethnicity was itself a distinctly post-1960s phenomenon, constituted through a reimagination of white working-class masculinity upon the model of black cultural nationalism, feminism, and post-Stonewall gay rights. (230) Although that racial politics is only one part in the post-1960s reworking of masculinity, it is emblematic of the ways that race and class interceded in this period to transform the normative meanings associated with white working-class manhood.
C. Industrial Masculinity in the Era of Flexible Labor and Feminized Work
The previous two sections have sketched the broader social and economic transformations of the postwar period and their effects on white working-class men. As I have argued, the equation of white working-class men with the general hegemonic structure of postwar U.S. society was itself a historically specific product that was no longer possible in the same way following the shifts of the 1960s and 1970s. Now I want to turn more specifically to how working-class masculinity was itself placed into crisis through the redefinition of "work" after the decline of Fordism. Labor historians have demonstrated the many ways that the workplace acts as a key site in the construction of masculinity and male identity. For instance, historian Steven Maynard has argued that, in the early twentieth century, the transition from craft production to mass production precipitated a crisis in previous ways of defining working-class manhood as the former association of masculinity with craft independence and control over the work process was stripped away by corporate Taylorism. (231) In dialectical response, a new "rugged" industrial manhood emerged that defined masculinity in terms of the new and previously despised conditions of work, brute strength, and constant exposure to danger. (232) In a similar manner, social historians have noted that, since the 1970s, the social conditions necessary for the maintenance of male working-class identity have eroded as the industrial work of the Fordist assembly-line has been superseded by and subsumed within a new paradigm of labor. As with the racialization of whiteness, the effect has been to transform the relation of white working masculinity to the hegemonic norms of American society.
Central to this transformation have been changes to the nature of "work" after the decline of industrial Fordism. As we have seen, the 1970s witnessed a steady decline in the Fordist order of mass production and mass consumption characteristic of the postwar boom. Initially, the decline of traditional working-class male employment was seen as a sign of deindustrialization and the complementary rise of the so-called "service sector." But in retrospect it is clear that these changes were only symptomatic of a more thoroughgoing restructuring of capital. (233) Part of that restructuring entailed the emergence of an informational mode of production, which was distinguished from industrial work by the new prominence of knowledge, information, affect, and communication. (234) Manufacturing itself has not merely declined but has been incorporated and recast within a new informational paradigm. (235) In place of the Fordist model of uniform goods mass produced upon on an assembly-line, manufacturing is now typically structured around the extensive use of computerized robotics and just-in-time inventory systems that permit small-batch production of specialized goods without large fixed capital investments. (236) Alongside this transformation in traditional manufacturing has been the collapse of the very distinction between production and service through the growth of what economists call "producer services": businesses that cater to other firms, for instance, by offering banking and finance, insurance, real estate, legal, accounting, and auditing services. (237) While these services generate a select number of highly remunerative jobs, the vast majority are low-wage, low-skilled positions that constitute the invisible substratum of the contemporary firm. (238) Beyond this informational component, another important aspect of immaterial labor is the new centrality of affective and care-based work built around the commodification of human contact and social interaction. (239) The burgeoning healthcare industry, for instance, centers on the provision of care, whether in hospitals, clinics, doctors' offices, retirement or convalescent centers. (240) Likewise, the entertainment and consumer technology industries have become co-partners in providing a nomadic public with endless ways of consuming communication and social interaction, most notably through the explosive rise of social networking technology. (241) Whereas working-class men once constructed their masculinity around the role of producers capable of braving the danger and monotony of the industrial workplace, they now find themselves recast as servers dedicated to the ephemeral provision of affect or information.
In addition to changes in the nature of working-class "work," the structure of the labor market and the labor process has been radically transformed since the 1970s. As we have seen, from World War II through the 1970s, the core of the white working-class community was in many ways founded upon the availability of the union job, carrying with it decent wages, long-term job security, and the promise of a pension. But in the wake of two bouts of inflation, unprecedented rates of unemployment, and the rollback of trade union influence, a very different organization of the labor market and the labor process itself have wrought changes in all sectors of the economy. In particular, since the 1970s, the labor market has been restructured to maximize flexibility through the replacement of full-time union employees with a variety of part-time, temporary, subcontracted, and outsourced workers able to satisfy shifting demands without long-term commitments for ongoing employment, healthcare benefits, or pensions. (242) The result is a segmented labor market in which a small employee core enjoying guaranteed full-time employment, job security, and generous benefits is flanked by a larger contingent of peripheral employees susceptible to rapid downsizing in response to changing market conditions. (243) These changes, in turn, have wrought shifts in industrial organization. Internally, the bureaucratic mode of corporate management has been replaced by nonhierarchical forms of "cooperative," project-driven teams that are then pitted against one another in an internalized, results-oriented market system. (244) Externally, the proliferation of outsourcing and organized subcontracting has revived atavistic systems of domestic, familial, and artisanal labor, sweatshop and casualized production, as well as the growth of unprecedented informal and underground economies. (245) As a result, working-class solidarity and self-organization have been undercut through the intercession of family and domestic labor systems that replace economic relations of labor and capital with alternative forms of obligation and control. (246)
On a different but no less important symbolic level, the breadwinning white male is no longer the face of the working class. Women and persons of color have, of course, always been part of the American. working class. But they have never occupied the high-paying, unionized positions that white men held in key industries such as manufacturing, mining, and transportation. (247) Yet with the deindustrialization of the Northeast and the rise of a predominantly white-collar service sector, the white and male working class became, by the end of the 1970s, a predominantly female, non-white, and non-union working class. Already by 1980, the American working class was more than 60% female and non-white; when white men under the age of twenty-five are added, then more than 70% of the working class was composed of women, minorities, or youth. (248) Equally importantly, women and non-whites have been "proletarianized" in vastly greater proportions than white males. By 1980, 65% of black women held working-class jobs, compared to 64% for black men, 52% for white women, and only 38% for white men. (249) As a result of this recomposition, even on a demographic level, the earlier identification of the working class with white masculinity is no longer readily available. (250)
It is the force of these accumulated changes in the nature, structure, and composition of labor since the 1960s that accounts for one aspect of the contradictory position of white working men today. In the most basic terms, the restructuring of work under globalized post-Fordism has radically transformed the ability of the workplace to function as a viable site for the construction of white working-class masculinity. While the working class still exists today, and is undoubtedly larger than ever, the structure of work that helped to affirm an industrial working-class masculinity, and the broader social norms it represented, is no longer available. Rather, post-Fordist labor--affect-based, casualized, and de facto embodied by women, minorities, and the young--is now constructed around a feminized subject regardless of the actual gender of workers. As cultural theorist Donna Haraway has argued, work has been "redefined as both literally female and feminized, whether performed by men or women." (251) As Haraway explains: "To be feminized means to be made extremely vulnerable; able to be disassembled, reassembled, exploited as a reserve labor force; seen less as workers than as servers; subjected to time arrangements on and off the paid job that make a mockery of a limited work day; leading an existence that always borders on being obscene, out of place, and reducible to sex." (252) As a result of these shifts, even for those men who remain within traditional working-class occupations--those offshore spaces on oil-platforms or automotive assembly lines--being a "white working-class man" names a bygone era. In this sense, even white working-class men are no longer "white working-class men" because the social and economic framework that gave that term its broader meaning no longer exists. It is with this altered framework in mind that we must now retheorize sexual harassment.
IV. Retheorizing Sexual Harassment
As the previous section has argued, sexual harassment should be understood, not in relation to an abstract order of gender norms and heteropatriarchy, but more specifically in terms of the varying historical constructions of manhood and the shifting normative status they have assumed. The prior section attempted to map out some of these shifts by tracing how white working-class masculinity has been redefined and culturally mobilized since the 1960s. In this section, I want to track the impact of these historical deformations on our understanding of sexual harassment through a discussion of those contradictory instances of same-sex sexual harassment in the workplace known as horseplay.
But first it might be helpful to describe why I believe horseplay can be useful for a general rethinking of sexual harassment. First, as a form of sexualized abuse, horseplay resonates with a far wider set of conduct that courts continue to regard as prototypical of sexual harassment. Feminist theories have attempted to offset this presumption in various important ways--for instance, by shifting the focus to nonsexual forms of discrimination or by showing that the harm lies not in sexuality but in how sexuality "spills over" to reinforce stereotypical sex roles. But these strategies do not directly confront the sexualized nature of this conduct. Horseplay, however, forces a fundamental reinterpretation of sexualized harassment by providing examples of extreme sexual abuse that cannot be reduced to expressions of sexual interest. Horseplay presents, in naked form, a sexuality in the service of power.
Second, horseplay permits us to understand more fully the relationship between power and normalization. In its deliberate violation of taboos on homoeroticism, horseplay breaks with prevalent cultural norms. Yet, even as it refuses to be reduced to the enforcement of already existing norms, horseplay is unquestionably the exercise of a specifically gendered and sexualized form of power. Rather than regarding horseplay as simply "deviant," then, we need to go beyond a unitary notion of gender norms to imagine a more diverse, uneven, and dynamic normative field, in which various conflicting representations compete for influence across different sectors of society. The apparent abnormality of horseplay offers a fresh perspective from which to study the active constitution and deconstitution of regulatory norms within this shifting field, as well as the fact that power need not always assume a normative cast.
Third, the contradictions that run through horseplay might be paradigmatic of the ways that all sexual harassment is articulated within a broader circuit of social power, such that the invocation of gender-based power represents an attempt to compensate for losses that have accumulated along other social registers. Rather than imagining sexual harassment as the circular "reinforcement" or "reproduction" of existing gender hierarchies, then, horseplay demonstrates that power is a relation rather than a commodity and that some of its most visible manifestations might be best seen as stagings of power underwritten by perceptions of loss, deprivation, and crisis. Indeed, from this perspective, some enactments of sexual harassment might directly result from its perpetrators' inability to accede to the norms of masculinity.
Finally, horseplay ruptures the sheen of "normality" that frequently cloaks the perpetrators of sexual harassment. If horseplay's anomalous cast dramatizes the compensatory circulation of gender-based power, then it may usefully typify the conflicts, compensations, and contradictions that energize all acts of sexual harassment, even in their most stereotypical forms. In almost all such enactments, perpetrators deliberately hide these contradictions through an invocation of "confident masculinity." Treating horseplay as paradigmatic allows these displacements and compensations to be placed back at the center of sexual harassment, so that the ruptures that traverse contemporary masculinity are rendered visible and can be exploited as strategic sites for intervention and change.
A. Sexualized Abuse and the All-Male Workplace
The "abnormality" of horseplay stems from its perpetrators' transgression of general social prohibitions against same-sex sexual conduct. Therefore, as a first step, we must dislodge the persistent idea that the heterosexual/homosexual binary represents the only form of sexual norm. Historians of sexuality have shown that the stark division between homosexuality and heterosexuality apparently so central to contemporary American society is, in fact, a surprisingly recent invention that received widespread cultural currency only after World War II. (253) Prior to this period, the meanings and linkages among sexual practices, sexual identities, and sexual objects have been historically understood and articulated in a variety of ways. (254) The concept of sexual orientation was taken up from a more diffuse popular self-understanding and formalized at the end of the nineteenth century in the work of sexologists Richard von Krafft-Ebbing and Havelock Ellis. (255) They postulated the existence of two distinct psychological types of person, applicable to the entire adult population, in which the gender of an individual's preferred sexual object was the primary organizing principle of desire. It took another half-century for this medical concept to gain broader cultural acceptance as a form of self-understanding, initially among middle-class urban men and then in other sectors of the population. (256)
Hence, horseplay might be better understood, not simply as anomalous or transgressive, but as the retrieval of an alternate set of gendered norms. Indeed, rather than the language of norms, it might be more productive to speak of a more fluid set of roles, positions, and statuses that sexuality might be capable of brokering within certain periods, cultures, and settings. If sexual orientation has itself emerged as one dominant norm in postwar American culture, it is even more important to recall that there have always been other models of gender and sexuality that have formed--and continue to form today--the fluid medium of sexual experience. Early twentieth-century working-class culture epitomizes one such alternate organization of sexuality and gender around active and passive sexual acts. As historian George Chauncey has shown, in this period, men were commonly identified by their gender status, which was only secondarily expressed through the roles that each person played in sexual acts. (257) "Normal" men could engage in sexual intercourse with other men and remain masculine so long as they did not assume the passive or receptive roles. (258) Men who assumed passive roles in same-sex encounters--variously called "fairies," "pansies," "sissies," "queers," and "queens"--were so categorized, not because they were seen as possessing a distinct sexual desire, but because their proclivities for anal and oral receptivity were deemed unmasculine and effeminate. (259) Positions in sexual practice reflected underlying gender roles, and object choice was only a symptom of the more fundamental assumption of a different, "inverted" gender role. (260)
Horseplay can be seen to draw from this early repertory of sexual models as its perpetrators assume sexually aggressive positions towards other men while retaining, and even affirming, their masculine status. Horseplay thus finds particular resonance with the pre-war category of the "wolf," denoting a hyperbolically aggressive and virile man who habitually seeks out other men--typically not fairies, but men otherwise distinguished by age, build, ethnicity, or some cultural vulnerability--for sexual partners. (261) The wolf's masculinity was, in fact, often positively reinforced through sexual relations with other men. (262) In contrast to the indifferent, if receptive, attitude of manly "trade," or the more solicitous and conjugal relations of "husbands" or "jockers" towards "fairies" or "lambs," the wolf evinced a predatory same-sex appetite willing to seduce and perhaps physically coerce other men for his satisfaction. (263) Consequently, the wolf's relationships were often organized less around gender roles, as with husbands and fairies, than on the basis of status hierarchy and power. (264) The wolf thus represents one culturally available script, markedly distinct from that of sexual orientation, in which a man could actually enhance his masculine status through the eroticized domination of other men.
Furthermore, as the example of the wolf illustrates, these alternate understandings of gender and sexuality have not vanished with the rise of the heterosexual/homosexual binary, but have continued to coexist, bleed into, and inflect contemporary forms of sexual practice and identity. Formerly, historians of sexuality tacitly assumed that different modes of sexual understanding fell into a succession of historical paradigms, often shifting from isolated sodomitical acts to the consolidation of a homosexual identity. (265) Yet horseplay is not simply the atavistic return of an anachronistic sexual persona. For, obviously, the postwar prohibition on same-sex intimacy as unmanly still exerts a powerful influence over this conduct, generating the odd mixture of verbal threats and bizarre physical enactments seen in Oncale and McWilliams: brutal acts of sexual humiliation that both invoke and avoid actual sex. To understand how horseplay takes up but redeploys, for instance, the sexual role of the wolf, we must forsake linear historical narratives in order to recognize the heterogeneity and diversity of sexual knowledges and practices coexisting down to the present. This point has been forcefully made by literary and cultural theorist Eve Sedgwick, who argues that the historical progression from acts to identities has tended to reinforce the notion that the heterosexual/homosexual opposition represents a totalizing and coherent definitional system monopolizing the present. (266) Observing "the unrationalized coexistence of different models" (267) of sexuality in various historical periods, Sedgwick argues that contemporary sexuality can more productively be viewed as a performative "space of overlapping, contradictory, and conflictual definitional forces" (268) that have become sedimented through time. Extending Sedgwick's argument, David Halperin has contended that there is no unitary history of male homosexuality. (269) Halperin, for instance, traces the coexistence of at least four provisional systems of sexual categorization whose histories and interactions have been obscured, but not superseded, by the emergence of the heterosexual/ homosexual binary. (270) According to Halperin, homosexuality and heterosexuality do not name the concluding paradigm in the history of sexuality, but rather denote "an effect of this cumulative process of historical overlay and accretion" caused by the sedimentation of these models of male sexuality and gender deviance which pre-date the ascendency of sexual orientation. (271)
Once we cease viewing these forms of sexual practice as organic expressions of an individual's sexual identity or a unified historical discourse, we can, instead, begin to appreciate their existence as disparate cultural scripts still available today for opportunistic retrieval. Moreover, in order to understand the particularity of all-male workplaces, we must recognize the ways these scripts move along continuities of space, geography, and environment rather than identities or desires--constituting a kind of "situational sexuality" emerging within particular contexts and institutions. (272) Historian John Howard, for instance, has argued that there is a distinct regional and spatial distribution of sexuality that only comes into focus once the rigid logic of homosexual/heterosexual self-identification is relaxed. (273) Howard, for instance, examines the dispersed networks that sustained possibilities of same-sex desire in Mississippi from 1945 to 1985 fostered by the bus stations, hotel restrooms, bars, and automobiles in which men met and mingled. (274) Chauncey likewise stresses how the specific erotic system of wolves, jockers, and punks was widespread among groups of men who found themselves separated from the family and neighborhood systems that regulated sexual norms, particularly prisoners, seamen, and itinerant workers. (275) Historian Peter Boag develops this insight by exploring the Pacific Northwest prior to World War II, where he uncovers two contrasting homoerotic subcultures, coexisting in time but separated in space. (276) The first was a working-class world rooted in the labor camps that seasonally sprung up around the logging, fishing, mining, and railroad jobs of the region and which drew together migrant workers, causal labors, and "hobos" numbering in the thousands. (277) In these transient spaces, a distinctive sexual culture developed in which adult jockers engaged in sexual relations with younger male punks, who rejected oral sex in preference to interfemoral intercourse. (278) A second, quite distinct sexual culture emerged among the growing population of urban white-collar workers--clerks, salesmen, teachers, small shop owners--who met and mingled in the citys' parks, hotels, and saloons. (279) These middleclass urban spaces fostered a very different culture of discrete same-sex relationships between adult men of the same age that did not include the taboo on fellatio that existed among jockers and punks. (280)
Cases concerning same-sex sexual harassment demonstrate that sexualized conduct continues to pervade and structure certain male-dominated workplaces to the present. Such conduct assumes many forms and intensities. For instance, in the mascot production shop in Ocheltree v. Scollon Productions, Inc., male employees fostered an aggressive sexual culture of boasting, mutual taunts, crude erotic enactments, and general one-upsmanship undoubtedly intended to see who would be the first to betray offense. (281) One male worker told coworkers about his wife "sucking his dick and swallowing and letting it run down the side of her chin," while, on another occasion, the shop supervisor described his enjoyment of intercourse with young boys. (282) On a different occasion, employees speculated on homosexual relationships between various male employees and even on how one employee was having sex with a dog. (283) The same mixture of camaraderie and belligerence can be detected in the workplace practice of "bagging," in which male workers grab and squeeze each other's testicles. For instance, in Quick v. Donaldson Co., Phil Quick complained that he was bagged approximately a hundred times over the course of a year, including one incident in which a coworker grabbed Quick by the arms and lifted him off the ground while calling on another worker to squeeze Quick's testicles hard enough to produce swelling and bruising. (284) Although such behavior was dismissed by the district court as "non-sexual aggression" aimed at Quick's genitals, (285) in truth bagging functions as a formalized, low-level practice by which men demonstrate their masculinity through an ability to give and take sexualized abuse. On the more extreme end of this spectrum, there is the brutal and carefully targeted sexualized abuse of Dennis Breitenfeldt in Breitenfeldt v. Long Prairie Packing Co. (286) Working as a "boner" in a Minnesota meatpacking plant, Breitenfeldt alleged he was daily the victim of sexually violent behavior that he and his coworkers termed "violating"--consisting, in Breitenfeldt's case, of being jumped by coworkers and held down in bins of raw meat or troughs of blood while simulated acts of oral or anal sex were performed upon him; having his testicles grabbed or hit by coworkers; having a steel rod used for knife sharpening forcibly rubbed between his legs; and being asked whether he preferred "it up the ass or down the throat." (287) As if this were not enough, when a light above Breitenfeldt's workstation flickered, his
coworkers would yell "blue light special," jump him, and again simulate sex acts. (288) When he complained, Breitenfeldt's supervisor dismissed the conduct as "just in good fun" and refused to have the light bulb changed. (289) Breitenfeldt's fate follows those of plaintiffs in Oncale, McWilliams, and Giddens in offering perhaps the most extreme and difficult to explain instances of male-male sexualized abuse. Together, these cases justify a long-standing cultural suspicion that male-dominated environments are capable of fostering "deviant" forms of gender and sexuality. In the next section, I want to draw together these insights to develop a more coherent understanding of both horseplay and sexual harassment more broadly.
B. Horseplay, Contradiction, and Acting Out
Having dislodged the notion of a single sexual norm, as well as the related idea of a totalizing sexual system, we can now present a theory of horseplay that more fully accounts for its counter-normative and compensatory elements. As we have seen, the sexual acts typical of horseplay remain inscrutable only if sexual norms are narrowly identified with the heterosexual/homosexual binary. Once we acknowledge that sexual orientation is a relatively recent and incomplete form of sexual self-understanding, we can recognize the diverse array of models of gender and sexuality that continue to inflect contemporary sexual experience. Rather than invoking a unitary system of gender norms, we might, instead, more productively speak of a variety of scripts through which gendered and sexed practices are circulated and reshaped. Early twentieth-century working-class culture offers many examples of how same-sex relationships can be organized around scripts centered upon gender status (fairies, trade, husbands), age differences (jockers and punks), or differentials of power, position, and physical force (wolves and lambs). These alternative scripts have not simply disappeared today but have continued to circulate and resurface in both familiar and unfamiliar forms. All-male environments, ranging from prisons to offshore workplaces, have played a key role in the cultural transmission of these alternate forms of gender and sexuality, which have remained within the institutional memory of these sex-segregated spaces as a repertory of sexualized practices, initiatory acts, and gender scripts available for appropriation and enactment in the present.
Consequently, horseplay may represent an attempt to resuscitate a specifically sexed form of power to compensate for the deficiencies otherwise felt to exist among certain groups of men. In fact, the very extremity of these sexual acts bears powerful witness to the profound needs animating these occurrences. One way to understand these needs, I have argued, is by situating them within the broader transformation of white working-class manhood since the 1960s. The dominant political narratives of the post-New Deal era cast these social and economic changes in terms of the betrayal and marginalization of white working-class men. But that narrative of social disenfranchisement represents a cultural screen memory projected upon, but also rendered possible by, the more fundamental historical crisis and dissolution of the Fordist-Keynesian regime which had underwritten the material and cultural organization of postwar white working-class life. In the aftermath of the crises of the 1960s and 1970s, working-class white men experienced an increasingly fractured relationship to the ways they had formerly articulated their gender and racial identities. The result was a sense of social marginalization and political disenfranchisement that was channeled by the New Right into a highly particular economic and political agenda. The figure of "white victimization" epitomized, for instance, by Allan Bakke offers one representation of this broader cultural narrative and the corresponding identity politics of white male injury it has come to sustain.
Consequently, rather than seeing horseplay as an extreme or anomalous form of conduct, we might use it as a lens through which to view apparently more normative instances of male-female harassment. For the contradictions of horseplay are contradictions only if we presume that its perpetrators are, in fact, invested in the social norms they violate--specifically, social taboos on same-sex conduct. But, as the onshore world recedes, the imagined investment in such abstract norms recedes and more pressing needs surface. Indeed, sexual harassment may not be rooted primarily in an imagined investment in an abstract gender order at all, but in the possibility that sex offers an intensely bodily experience of power that, for certain segments of men, at least, might compensate for less tangible perceptions of social loss. Even in "normative" instances of male-female harassment, then, "patriarchy" is not an overarching power structure that men are tasked to defend, but a symbolic resource that they actively call upon through talismanic acts such as sexual harassment. (290) Horseplay in fact permits us to see all sexual harassment as a species of cultural script driven not by sexual desire or the ideological dictates of gender norms, but by the deeply felt promise of sexualized abuse to shore up and push back an array of social anxieties and contradictions. Horseplay thereby permits us to see all sexual harassment as the invocation of a specifically gendered power that must be situated within a more complex compensatory economy of racial, political, and economic marginalization that is part political fantasy and part social fact. The resulting demonstrations of sex-based power may, at times, align with normative ideas of gender (for instance, in opposite-sex harassment), while at other times it may violently transgress that system of norms (for instance, in horseplay). Yet, once we reject the priority of a gendered social structure, we can see that, in both same-sex and opposite-sex cases, we find situated social actors attempting to make their own histories out of what lies closest at hand--their own masculinities.
This account also helps to show the insufficiency of any theory that defines sexual harassment strictly in terms of gender norms. The powerful contradictions that have altered the self-identification of white working-class men since the 1960s attest to the inadequacy of appealing to an abstract socioeconomic model of power such as heteropatriarchy to explain harassment. Early feminist legal scholars, such as MacKinnon, appeared to conflate sexuality and power within a single structure of male domination and female subordination with little space for female sexual agency or historical change. The influential work of Franke, Schultz, and Abrams has sought to right those accounts by positioning sexuality as only one tool that male workers may deploy in maintaining gender hierarchies and the male monopoly over more highly rewarded jobs. (291) Yet perhaps it is power, not sex, that is the problem. The solution is not to desexualize power, but to break with the static and hierarchical model of power that continues to animate certain feminist analyses of sex-based power. We must then understand both power and sex differently. On the one hand, in understanding power, we must break from a hierarchical model that imagines power as a commodity possessed by one group to the detriment of another, as well as from a structuralist model by which an impersonal system reproduces itself via a coercive social discipline. Rather, we must recognize that power is itself the provisional effect of numerous contingent alliances among disparate social forces, which only retroactively proclaims its naturalness and permanency. On the other hand, in understanding sexuality, we must break from both the naive biological conception of sex as exclusively an expression of erotic desire as well as the radical feminist view of sex as solely a form of subordination. Instead, we must recognize sexuality's historical and social character as well, including the variety of now submerged idioms associated with the all-male workplace and its alternate repertory of sexualized scripts. These sexual scripts offer men a range of flexible forms through which to enact gender-based power. Yet the figure of "roles" and "scripts" must also not be read as implying a voluntaristic subject, able to adopt and discard erotic personae at will. Rather, these sexual models represent fields of cultural and individual investment that become lodged in and as us--as sources of loathing, fear, desire, or apathy, sometimes projected onto others and sometimes felt to be our innermost selves. At times, their gravities pull us from our familiar orbits as we find ourselves drawn into acts and appetites that we might not recognize as our own.
Indeed, there might be an even more striking point to be made regarding harassment and gender norms. In contrast to the assumptions underpinning gender norms, this account suggests that the most hyperbolic dramatizations of gender hierarchy might, paradoxically, be driven by the very inability of certain men to identify with male norms and enjoy the social entitlements that masculinity is felt to entail. Sociologist Raewyn Connell, for instance, has located a similar set of dynamics driving what she terms "protest masculinity." (292) While conducting extensive life histories of working-class men, Connell found that some working-class men adopt extreme forms of highly aggressive, socially defiant masculinity, not as a result of having passively internalized social norms regarding manhood, but as a mean of compensating for a more profound experience of social marginalization rooted in class. (293) Due to their working-class backgrounds, these men have found their identifications with hegemonic masculinity difficult or impossible to maintain--many are barely literate--and the normal advantages that men possess over women and other social "others" in terms of employment and job advancement are largely closed to them. (294) Their response is to fully identify with the marginality that defines their social position and to transform that status into a hyperbolic display of defiant, often violent, virility. (295) The resulting masculinity is extreme but also disembodied and external--a formal means for mounting social resistance and therefore maintained only on the level of outside persona, for instance, as an obsession with face. (296) Even as these young men aggressively assert gender boundaries, it is the sharply defined sense of difference, not any specific investment in the content of masculinity, that is crucial to propping up their imperiled sense of self. (297) Consequently, gender difference becomes experienced as paroxysms of sexuality and violence, narrowing masculinity to almost literal bodily experiences. (298) Indeed, as others have argued, in certain circumstances, outright sexual violence may offer such men a visceral experience of gender difference, enacting on the level of performance a masculinity missing on the level of identity. (299)
Building upon such work, it might be useful to replace the concept of gender normalization with the psychoanalytic notion of "acting out" in order to describe this fractured psychic and social economy. In its psychoanalytic valence, acting out denotes the often violent expression of psychic contradictions that defy conscious recognition and so manifest themselves through symptomatic and agitated acts that fail to resolve the underlying conflicts. (300) These acts may temporarily relieve the built-up tensions within the self, but because they do not alter the underlying issues, tensions unavoidably mount once more. In parallel fashion, sexual harassment can be seen as a species of cultural acting out that responds to the contradictions inhabiting the contemporary identities of white male workers. Rather than viewing sexual harassment as a confident assertion of heteropatriarchal power, acting out suggests how sexualized acts in all-male institutions may be opportunistically seized upon as culturally available scripts for the attempted consolidation of personal male power, even when--and even because--same-sex acts transgress the hegemonic rules of heteronormativity. Such a paradoxical economy of masculinity might go some distance towards explaining why, in cases such as Oncale, men are willing to adopt socially stigmatized and counter-normative forms of domination. For men who find themselves cut off from the male prerogatives that they feel are rightfully theirs, perverse sexualized acts may be appealing on at least two, inconsistent fronts: first, in registering the sense of perversity, marginalization, and stigma already felt by such men due to their historical situation; and, second, in simultaneously attempting to compensate for these feelings of powerlessness by using that same perversity to exercise masculine sexual dominance over other men.
Yet, in the end, this Article advocates an agnosticism towards both the historical causes of this conduct and the psychological motives of these actors. Certainly, the prior discussion of the postwar transformation of white working-class masculinity, juxtaposed with our exploration of horseplay as the revival (or survival) of an earlier sexual system, suggests a historical narrative in which the accumulated social pressures upon a certain sector of men has resulted in these aberrant forms of workplace harassment. Yet such a causal narrative encounters a number of obstacles, not the least among them being the occurrence of same-sex sexualized abuse in a wide range of contemporary social settings, from college fraternities to military units to prisons. Moreover, as the discussion of early-twentieth century sexuality shows, not only are these same-sex acts not new, but they represent lines of continuity (if, at times, submerged) that have endured as part of the institutional memory of certain spaces and settings. Even speculation on whether these historical changes have increased or decreased the number or severity of same-sex incidents misrepresents the precise argument I am trying to make.
In conclusion, I would like to make a series of corrective points regarding the scope and meaning of these arguments. First, the relationship I want to stress between horseplay and the altered economy of white working-class masculinity is not one of causation, but of social meaning. For, as the historical relationships among gender, race, and work have altered over recent decades, a set of pre-existing sexual practices and knowledge has been culturally appropriated, invested with new significance, and mobilized for the divergent purposes of particular social actors. While the practices themselves may endure, their meaning takes shape within a historical conjecture that is irrevocably different. A past repertory of sexualized scripts can today be harnessed to address cultural anxieties not present in earlier decades regarding perceptions of political and cultural marginalization. Indeed, Title VII itself offers an important means of contesting the significance of these acts: challenging the definition of such sexualized conduct as "horseplay" or "roughhousing" and branding it, instead, as "sexual harassment" gives this conduct a meaning that it likely does not have for the men who commit it. (301) Despite the overtly sexualized nature of Joseph Oncale's own harassment, his harassers would undoubtedly be shocked to consider their conduct as sexual harassment--something that men do to women as an expression of desire. Altering the legal and cultural significance of conduct may in fact prove to be one of the most effective means of halting the conduct itself.
Second, my discussion of white working-class masculinity is intended to challenge the idea of an abstract male order that lies at the center of the accounts of Franke, Schultz, and Abrams. Rather than seeing the conduct as intended to enforce gender norms, I argue that it should be understood as so many cultural scripts opportunistically taken up by particular social actors for any number of reasons. The difference in these approaches becomes clearer if we consider how they lead to particular perspectives on sexual harassment. If we see sexual harassment as the means of reinforcing a confident heteromasculine order, then it is logical to identify sexual harassment through an examination of the perpetrators and victims of sexual harassment. The result is both over-inclusive and under-inclusive. For whereas all male abuse of a female coworker would, without more, violate Title VII (itself an outcome no court would endorse), a male plaintiff such as Joseph Oncale--subject to brutal, sexualized abuse, but too ordinary to fit the profile of the "gender outlaw"--finds himself out of luck. But if we see sexual harassment as a cultural script deployed for a variety of overdetermined cultural and personal reasons, then it is the sex-specific form of the harassment that becomes dispositive. From this perspective, the purpose of our account of white working-class manhood is largely negative: it serves to demonstrate that the precise reasons that individual men might turn to sex-specific conduct are complex and often founded on an overdetermined set of historical contradictions and compromises that belie the fiction of a unitary masculine order. While I have presented a detailed historical account of these shifting conditions, for purposes of Title VII, I am not advocating that courts move from one already complex theory of sexual harassment to a second, even more complex theory of sexual harassment. On the contrary, the legal upshot of my historical argument is that we should shift from an analysis of social function to an analysis of the objective content of harassment. Rather than inquiring into whether conduct has the "purpose or effect" of reproducing gender norms, courts should ask if conduct takes a sex-specific form that discriminates on the basis of gender.
Yet, in addition to the practical exigencies of the legal claim, there is also an important theoretical lesson that horseplay can offer us regarding the possible transformation of gender norms. To the extent that gender norms are able to ensure their reproduction through practices such as sexual harassment, it is unclear precisely how such a structure might be altered. Title VII, of course, along with other antidiscrimination laws, offers a legal means to oppose specific instances of harassment. However, that intervention remains local and reactive. Furthermore, we must be vigilant of the ways that the legal system itself may indirectly naturalize certain social categories, as well as formalize the attachment of politicized identities to injuries that the law is then imagined to redress. (302) The sex stereotyping claim, for instance, may work to codify the binary opposition of the harasser's "normalized" masculinity and the victim's gender "nonconformity," either taking these roles as straightforward facts or--if they are seen as social constructions--affirming the efficacy of the disciplinary process that produces them. By contrast, a focus on horseplay can provide a different perspective on the forms that intervention may take. The very imperative that gender norms materialize themselves through the embodied practices of individuals also necessarily generates the complementary possibility that such acts may go awry, becoming illegible or even unviable. (303) Rather than representing a rare exception to the dynamics that typically govern sexual harassment, horseplay may, in fact, exemplify an instability lodged within every enactment of gender. Horseplay may thus uncover the fault lines of a masculinity that is itself, already, less normal and less normative than one might assume and which therefore may act as the pressure point for the contestation and reelaboration of a broader set of regulatory practices. Admittedly, such a strategy of intervention might appear highly strange: it is not, for instance, located primarily in the nonconforming man who defies the normalizing violence of the system, but is instead lodged in the often violent and morally reprehensible acts of the perpetrators themselves. Yet this is the point: to replace a logic of resistance with the possibilities of transformation empowered by the definitional incoherence of the system itself.
C. Horseplay in Practice: Doe v. City of Belleville
The Seventh Circuit case of Doe v. City of Belleville demonstrates why a focus on the dynamics of acting out presents a more productive theoretical approach to sexual harassment than is offered by concepts of gender norms and sexual stereotyping. (304) In Doe, the victims of same-sex harassment were sixteen-year-old twin brothers, referred to as "H." and "J.," who were hired by the city to work with a group of older men to cut weeds in the municipal cemetery. (305) Both boys were immediately harassed at work: J. for being overweight and H. for wearing an earring. (306) But H. quickly became the main target of abuse, especially by Jeff Dawe, "a former Marine of imposing stature," who referred to H. as "queer" and "fag," telling him to "go back to San Francisco with the rest of the queers" and asking him if he were "a boy or a girl." (307) As the court recounts, Dawe soon took to calling H. his "bitch" and promising that he would take H. "out to the woods" and "get [him] up the ass." (308) Other coworkers joined in, encouraging Dawe to "get a piece of that young ass," including H.'s supervisor, who once asked, in reference to Dawe's repeated rape threats, whether H. were "tight or loose" and wondered "would he scream or what." (309) Events came to a head one day when a coworker griped to Dawe that his "bitch" appeared grumpy and that Dawe should do something about it. (310) Somewhat inebriated after several lunchtime drinks, Dawe walked towards H., saying, "I'm going to finally find out if you are a girl or a guy." (311) H. backed away to avoid Dawe, but found himself trapped against a wall. (312) Dawe then grabbed H. by the testicles and turned to his coworkers to announce, "Well, I guess he's a guy." (313) H. testified that after this episode he became convinced that Dawe was willing and capable of sexually assaulting him in accordance with Dawe's repeated threats. (314) Both H. and J. quit their jobs and invented a story to hide what had happened. (315)
In many respects, H.'s abuse appears to fit comfortably within the rubric of gender normalization. The Seventh Circuit, in fact, reversed the district court's grant of summary judgment, finding that the brothers' abuse presented sufficient evidence for a Price Waterhouse sexual stereotyping claim. (316) The court concluded that H. had been singled out for abuse because the way he projected the sexual aspect of his personality did not conform to his coworkers' ideas of appropriate masculine behavior. (317) In particular, H.'s abuse seems to have stemmed from the earring that he wore to work, which--accented by his youth--deviated from the stereotypes of normative masculinity embodied by the work crew. Although H.'s harassment might have, at least in part, taken the homophobic form of gay-bashing, for the court, it was impossible and meaningless to distinguish whether H. was harassed because of his gender or some imagined sexual orientation. The crucial question, explained the court, was "whether H.'s gender would have been questioned for wearing an earring ... if he were a woman rather than a man." (318) To the Seventh Circuit, it was obvious that H.'s coworkers believed that "an earring is a feminine accoutrement not suitable for male adornment" and that these gender stereotypes were responsible for the abuse H. suffered. (319)
However straightforward the court's reasoning might be, such an abstract idea of gender norms ignores the specific social position of men like Dawe. It is easy, of course, to read Dawe as personifying the broader order of an aggressive and powerful masculinity, a former member of the military and obvious leader of the all-male city work crew. From this perspective, H. would be the natural foil to Dawe, both deviating from and defining the masculinity of the work crew. Yet casting Dawe as representative of an abstract male order neglects the social and historical contradictions that appear to drive the abuse. Dawe is not a generic white male; he is rather the once-proud Marine now revealed to be an uneducated and downwardly mobile leader of a group of similarly futureless men swept out of public sight and consigned to the upkeep of local graves. The domination of two sixteen-year-old boys appears as an attempt to shore up the imaginary lines of identification that link Dawe, however tenuously, to the broader structures of white, male heterosexual power in American society. Dawe bullies two teenage boys, then, not because of some hidden challenge they present to the heteromasculine order, but, quite the opposite, because of their extreme social vulnerability. Indeed, the fact that Dawe and the others are driven to tyrannize such helpless teenagers is a symptom of the underlying inability of these men to otherwise experience a sense of power they feel should be rightfully theirs.
Gender norms also fail to explain the form and momentum of the harassment itself. Whereas gender normalization would explain H.'s abuse as a response to his nonconformity, it is also relevant to inquire under what circumstances a teenager's earring must be answered by threats of rape. Initially, the work crew unimaginatively focused on the most convenient pretexts to harass each boy: H.'s earring and J.'s obesity. But once the abuse begins, the harassment of each teenager follows an independent track. J.'s harassment appears relatively inert, settling into stock insults concerning his weight. H.'s harassment, by contrast, shifts from a convenient set of derogatory terms to an elaborate fantasy centered on Dawe and H. Not only does Dawe himself refer to H. as his "bitch," but other coworkers share in the fantasy, encouraging Dawe to "get a piece of that young ass" and take H. "out into the woods." The abuse assumes a life of its own, far beyond any social logic of bullying, as it taps into a set of contradictory social and psychic needs that can be acted out in conjunction with the sexualities of its participants. As the collective sexual scenario gains an internal momentum, it is clear that the shared investment in H.'s subjection has gone far beyond any original response to his supposed lack of gender conformity. H. has rather become incorporated into an abusive narrative that lies beyond the control of any single member of the group, programmed according to a set of sexualized alternatives--whether H. is "tight or loose," "a guy or a girl," if he will "scream or what"--that say more about the masculinities of the work crew than that of the twins.
In particular, the collective fantasy surrounding Dawe and H. uneasily shifts between two different systems of male sexuality. For his part, Dawe first appears as the swaggering, heterosexual male out for a little "fag bashing." Yet, as the abuse shifts from taunts to rape threats, Dawe, too, shifts from repressed homophobe to something like the predatory "wolf' bent on demonstrating his masculinity through an ability to "punk" younger and less powerful men. On the part of H., we witness a parallel transformation in status. H.'s harassment appears to have originally focused on his purported sexual orientation. For instance, Dawe and others quickly seize on the earring to brand the teenager a "fag" and a "queer" and to instruct him to "go back to San Francisco with the rest of the queers." However, once H. is placed in a passive and effeminized position through the active process of his harassment, he seems to drift into the role of the "bitch" for the group's most hypermasculine member. The idiom thus shifts from sexual orientation to gender status and the adoption of active-passive roles in sexual practices. Under the latter discourse, Dawe begins to threaten to take H. out into the woods in order to "get [him] in the ass," while others speculate to Dawe if H. would be "tight or loose." Within the collective fantasy that underwrites the group's harassment of the boys, H. is no longer distinguished by his exclusive attraction to other gay men, but by the receptive sexual position he assumes towards "real" men such as Dawe. In short, H. has gone--in the group's vernacular--from "fag" to "bitch." And whereas, before, H. was utterly excluded from the work crew's heterosexual masculinity and imaginatively exiled to "San Francisco," he now can be reincorporated into the group's male hierarchy as Dawe's feminized partner and potentially dragged off into the primitive psychic space known as "the woods." What starts as the group's homophobia ends in H.'s sexual subjection, pinned against a cemetery wall with Dawe's hand between his legs.
V. Coda: The Sex-Based Hostile Environment Claim
Not only does Doe usefully illustrate the limitations of a gender normalization approach, but it also points the way forward to an alternate legal framework for the sexual harassment claim. For, in addition to evidence of sex stereotyping, the Seventh Circuit accepted the explicit sexual character of the harassment itself as an alternate basis on which to find that discrimination occurred "because of" the plaintiff's sex. (320) Revising Doe slightly, I would contend that this latter evidentiary route, focused on the sex-specific cultural materials mobilized as part of workplace discrimination, offers a more satisfying basis for the hostile environment claim. Therefore, before concluding, I want to briefly discuss how the legal framework of the sexual harassment claim should be reoriented around the sex-specific practices of workplace discrimination. (321)
As we have seen, feminist accounts focused on gender norms have tended to define sexual harassment, not in terms of the form of harassment, but in terms of its systemic effects in reproducing gender norms and sex-segregated workplaces. But defining sexual harassment in terms of such effects fails to recognize a host of sex-based conduct that cannot be readily assimilated to an abstract normative gender structure. Cases of horseplay, in particular, remain illegible from this perspective. In this Article, I have argued for adopting a performative approach built upon the understanding that individual enactments of sex actively appropriate, inhabit, and transform the normative meaning of gender. Sexual harassment should be understood to contain a heterogeneous cross-section of sex-based dynamics that do not necessarily support a single structure of power ("heteropatriarchy") or a single means of enacting sex-based power (sexual objectification or the disciplining of gender nonconformists). Reversing the analysis, then, we must focus on the diverse forms that sex-based harassment may take in order to render Title VII capable of intervening within an equally varied set of situations that come to sustain and renew the regulatory field of gender. Instead of conceiving sexual harassment as a series of yes-or-no questions comparing practices to monolithic normative structures--Does this conduct reinforce heteropatriarchy? Do these acts affirm the association of masculinity and skill? Does this conduct perpetuate masculine norms and male control?--we must do away with the notion of a single, unified norm and, instead, discern how sex-specific practices accrue as a more fluid, uneven, and contradictory set of positions, roles, and relationships that take shape between individuals, both inside and outside the workplace.
Accordingly, to rethink the sexual harassment claim, we must conceptualize the causality requirement, in particular, without reference either to the "purpose or effect" of that conduct (as some legal scholars have done) or to the harasser's subjective motives or desires (as some courts have done). Rather, causality should be derived from the objective nature of the hostile environment itself, whether it takes the form of sex-neutral unequal treatment or sex-specific physical or verbal acts. A critical resource for that reconceptualization exists in the form of the race-based hostile environment claim. Arising out of Rogers v. EEOC in 1971, (322) this line of cases developed slightly earlier than sexual harassment and, notably, without the significant cultural confusion introduced by the issue of sex. Importantly, these race-based claims led courts to conceptualize the hostile environment claim as a distinct paradigm of discrimination, separate from either disparate treatment or disparate impact. In contrast to the pretextual job decision at the center of the McDonnell Douglas/Burdine framework (323)--neutral in appearance, but motivated by the defendant's impermissible consideration of race, gender, or other prohibited category--the race-based hostile environment typically did not involve neutral conduct nor did it require plaintiffs to prove, directly or indirectly, the motives behind the conduct. Rather, the hostile environment enacted, directly through its objective content and meaning, the discriminatory basis prohibited under Title VII. The causal basis of racist graffiti, for instance, adhered to the objective historical meaning of race-specific terms rather than to the particular subjective reasons that it was introduced into the workplace. Consequently, the prior focus on the defendant in the disparate treatment claim shifted to a new focus on the plaintiff as the lens through which the hostile environment was constructed. For, as Harris instructed, the hostile environment was not a simple empirical fact, but rather a theoretical totality, (324) capable of aggregating disparate materials from various actors and irreducible to the sum of its parts. In place of the defendant and his or her hidden animus, then, the hostile environment claim became focused on the plaintiff as the active field of identification, capable of drawing together and reunifying spatially and temporally dislocated forms of conduct.
Drawing on this renewed theoretical understanding, workplace sex discrimination can be thought to operate according to two different paradigms of discrimination: on the one hand, the model of disparate treatment, in which sex-neutral workplace practices are directed towards certain employees based on their gender, race, religion, or other impermissible basis; and, on the other hand, the paradigm of sex-specific practices, in which particular employees are exposed to gender-specific materials that may not be specifically directed towards them at all, but which nevertheless negatively affect them on the basis of their sex. (325) From this perspective, the sex-based hostile environment claim no longer focuses on the discriminatory intent behind sexual harassment and breaks from any analysis of the "why" of harassment, whether as the specific psychological motive behind the conduct or the underlying purpose or effect it might manifest in reinforcing gender norms. From this perspective, horseplay might be paradigmatic of the sex-based hostile environment--estranged from the normative onshore world and surprising even to the perpetrators themselves, yet enacting what the Seventh Circuit in Doe described as the gender-specific experience of sexualized harassment. (326) Of course, the hostile environment should not be limited to instances of sexualized abuse; indeed, horseplay permits us to see sexualized conduct as merely one culturally available form of conduct that might be mobilized in the construction of the hostile environment. Horseplay thus "desexualizes" sexual conduct, revealing it as a sedimented cultural script susceptible to mobilization alongside, and in no way different from, other forms of discriminatory conduct, including sex-neutral disparities in treatment, misogynistic language, anti-female sexually explicit representations, and direct sexualized abuse. Thus, whereas a theoretical focus on horseplay might initially appear to shift our focus from women's historical subordination, it actually provides a model upon which to reimagine the harassment of women without the overarching presumption of male dominance or gender hierarchy, problematic appeals to the social logic of normalization (and the attending opposition of the harasser's idealized masculinity and the victim's stigmatized deviance), or the assumption of a unique female vulnerability to sexual injury. The often inscrutable character of horseplay, in effect, cleanses the hostile environment claim of the unnecessary and often unproductive distinctions that have attached themselves to the claim--whether the plaintiff or defendant is gay or straight, whether the victim visibly departs from gender norms, or whether the conduct reflects a desire for sex or a desire to humiliate and demean. Instead, horseplay helps return the claim to its original and proper focus: the objective features of the workplace environment and the multiple ways that the environment may discriminate based on the plaintiff's sex.
(1) Brief for Respondents, Oncale v. Sundowner Offshore Srvs., Inc., 523 U.S. 75 (1998) (No. 96-568), 1997 WL 634147, at *3 [hereinafter Brief for Respondents].
(3) Brief for Petitioner, Oncale v. Sundowner Offshore Srvs., Inc., 523 U.S. 75 (1998) (No. 96-568), 1997 WL 458826, at *3-6 [hereinafter Brief for Petitioner].
(4) Brief for Amicus Curiae in Support of Petitioner, Oncale v. Sundowner Offshore Srvs., Inc., 523 U.S. 75 (1998) (No. 96-568) [hereinafter MacKinnon Brief], reprinted in 8 UCLA WOMEN'S L.J. 9, 13 (1997).
(10) MacKinnon Brief, supra note 4, at 13.
(11) Id. at 14.
(12) Brief for Petitioner, supra note 3, at *28.
(13) Petition for Writ of Certiorari, Giddens v. Shell Oil Co. (5th Cir. 1993) (No. 92-8533) (unpublished), 1994 WL 16099694, at *3.
(14) Brief of Cross-Appellee and Reply Brief for Appellant, Giddens v. Shell Oil Co. (5th Cir. 1993) (No. 92-8533) (unpublished), 1993 WL 13102593, at *4.
(17) 72 F.3d 1191, 1193 (4th Cir. 1996).
(18) 676 N.E.2d 45, 46 n.4 (Mass. 1997).
(19) 568 N.W.2d 418,420 (Minn. 1997).
(22) From this perspective, many of these workplaces could be productively understood as forming variations of what Erving Goffman termed "total institutions." See Erving Goffman, On the Characteristics of Total Institutions, in ASYLUMs: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND OTHER INMATES 1 (1961).
(23) Title VII of the Civil Rights Act of 1964, 42 U.S.C. [section] 2000e (2010), states that it is "an unlawful employment practice for an employer.., to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
(24) See, e.g., Goluszek v. H. P. Smith, 697 F. Supp. 1452, 1456 (N.D. Ill. 1988).
(26) See, e.g., Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745,752 (4th Cir. 1996).
(27) See, e.g., CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 1-2 (1979).
(28) See Kathryn Abrams, The New Jurisprudence of Sexual Harassment, 83 CORNELL L. REV. 1169, 1226 (1998); Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. L. REV. 691, 766-71 (1997); Vicki Schultz, Reconceptualizing Sexual Harassment, 107 YALE L. J. 1683. 1774-89 (1998).
(29) See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (describing this predicament as the "catch-22" of gender discrimination); Franke, supra note 28, at 764-66 (analyzing examples).
(30) See Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009); Vickers v. Fairfield Med. Ctr., 453 F.3d 757,762 (6th Cir. 2006); Dawson v. Bumble & Bumble, 398 F.3d 211,218 (2d Cir. 2005); Smith v. City of Salem, Ohio, 378 F. 3d 566, 571-75, 921 (6th Cir. 2004); Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1062 (7th Cir. 2003); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000); Doe v. City of Belleville, 119 F.3d 563,581 (7th Cir. 1997), vacated, 523 U.S. 1001 (1998) (remanding in light of Oncale).
(31) As I discuss in great detail below, see infra Part II.A, there are several possible reasons for the lack of new theoretical work on sexual harassment. Typically, new theoretical work emerges in response to an accumulation of instances that appear anomalous from the vantage point of existing conceptual frameworks. In the late 1990s, sex stereotyping provided both a theoretical and practical model able to accommodate otherwise inexplicable same-sex harassment, while also recognizing female sex agency and avoiding the pathologization of sexuality associated with MacKinnon's subordination account. Since the important work of Franke, Schultz, and Abrams, there has been a relative scholarly consensus (with two notable exceptions described below). The impetus for my own Article comes from several sources. First, there has been a significant body of scholarship concerning the performativity of gender and sexuality, perhaps most strongly associated with the work of Judith Butler but extended by numerous other scholars across other lines of identity and identification drawing on a variety of critical idioms. See, e.g., DAVID ENG, RACIAL CASTRATION: MANAGING MASCULINITY IN ASIAN AMERICA (2001); JUDITH HALBERSTAM, FEMALE MASCULINITY (1998); JOSE ESTEBAN MUNOZ, DISIDENTIFICATIONS: QUEERS OF COLOR AND THE PERFORMANCE OF POLITICS (1999). Second, a separate body of scholarship had developed that explores the meaning of normalization as a complex historical, statistical, and social concept, often in conjunction with Michel Foucault's work on "governmentality." See, e.g., MICHEL FOUCAULT, SECURITY, TERRITORY, POPULATION: LECTURES AT THE COLLEGE DE FRANCE 1977-1978 (Michel Senellart ed., Graham Burchell trans., 2009); IAN HACKING, THE TAMING OF CHANCE (1990); Francois Ewald, Norms, Discipline, and the Law, 30 REPRESENTATIONS 138 (1990). Finally, the practical and doctrinal limitations of sex stereotyping have become clear in the decade since Franke, Schultz, and Abrams published their accounts. See, e.g., Vickers, 453 F.3d at 763 (rejecting plaintiff's sex stereotyping claim after finding his harassment was based on "perceived homosexuality," rather than on "gender non-conformity"); Dawson, 398 F.3d at 222-23 (rejecting plaintiff's sex stereotyping claim after finding she provided no substantial evidence that her gender nonconformity led to an adverse employment action); Hamm, 332 F.3d at 1065 (rejecting plaintiff's sex stereotyping claim after finding he was harassed due to his perceived homosexuality, rather than his gender nonconformity); Simonton v. Runyon, 232 F.3d 33, 36 (2d. Cir. 2000) (same); Spearman, 231 F.3d at 1085-86 (same).
However, against this backdrop, there have been two new lines of theoretical inquiry regarding sexual harassment. First, the most radical announcement of a "break" from feminism in general and feminist accounts of sexual harassment in particular would be JANET HALLEY, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM FEMINISM 290-303 (2006). I would note, however, that the precise relationship of that break to the influential work of Franke and Schultz is less than clear when, for instance, Halley cites Franke and Schultz approvingly in her footnotes as representing significant interventions within feminist readings of Oncale. See id. at 385 n.9 (approving Schultz); id. at 386 n.10 (approving Franke). So while the reliance of Franke, Abrams, and Schultz on a model of gender hierarchy would clearly fall within Halley's minimalist definition (and criticism) of feminist models of power, it seems Halley also feels that the accounts of Schultz and Franke depart in significant ways from the theories of cultural and dominance feminists that are the primary targets of her critique. See id. at 17-18, 359-60. The second exception has been accounts of "second generation" discrimination arising from cognitive bias, structures of decision-making, and patterns of group interaction that work to exclude nondominant groups. See Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 HARV. C.R.-C.L.L. REV. 91 (2003); Linda Hamilton Krieger, The Content of Out Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, l01 COLUM. L. REV. 458, 465-74 (2001). However, the focus of these scholars typically falls on disparate treatment rather than sexual harassment and, to the extent that their theories analyze the cognitive foundations of unconscious stereotyping, they can be understood as extending the work of Franke, Schultz, and Abrams. See, e.g., Krieger, supra, at 1189-98 (explaining the cognitive origins of stereotypes).
(32) See Franke, supra note 28, at 694,762 (arguing that same-sex harassment cases highlight the underlying lack of a coherent theoretical framework for sexual harassment in general).
(33) References to "sex-based" or "sex-specific" practices are used throughout this Article to describe any conduct that either contains a specific reference to gender (for instance, gender epithets, statements regarding women's unsuitability for certain occupations, or graffiti that demeans women) or is overtly sexualized (for instance, physical groping of another's genitals, sexual propositions or descriptions of sexual practices, or acts that simulate sexual practices). These terms are intended to distinguish such conduct from sex-neutral conduct, including pretextual employment actions and nonsexual, gender-neutral harassment.
(34) See infra Part II.C.
(35) To be sure, not all unlawful workplace discrimination need take the form of sex-specific conduct. As Vicki Schultz, in particular, forcefully reminds us, Title VII equally prohibits sex-neutral forms of unequal treatment, including pretextual employment decisions and harassment that does not have an explicitly gendered content. See e.g., Schultz, supra note 28; see also Franke, supra note 28, at 709-10.
(36) For a summary of that argument, see infra Part V.
(37) 12 F.3d 208 (5th Cir. 1993) (per curiam) (unpublished).
(38) 28 F.3d 446 (5th Cir. 1994).
(39) 83F.3d 118 (5th Cir. 1996).
(40) Garcia, 28 F.3d at 448.
(41) 72 F.3d 1191, 1195-96 (4th Cir. 1996).
(42) 99 F.3d 138, 143 (4th Cir. 1996). See also Yeary v. Goodwill Industries-Knoxville, Inc., 107 F.3d 443 (6th Cir. 1997); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503 (11th Cir. 1997) (finding that unwelcome sexual advances by a "gay harasser" present one possible basis on which a find-finder might infer causality, but not deciding if other bases might also exist).
(43) 90 F.3d 1372 (8th Cir. 1996).
(44) 119 F.3d 563 (7th Cir. 1997), vacated sub nom. City of Belleville v. Doe, 523 U.S. 1001 (1998).
(45) 523 U.S. 75, 79-80 (1998).
(46) See, e.g., David S. Schwartz, When Is Sex Because of Sex? The Causation Problem in Sexual Harassment Law, 150 U. PA. L. REV. 1697, 1742-43 (2002). The sexual stereotyping argument was placed squarely before the Court by Franke and Nan Hunter in the Brief of Law Professors as Amici Curiae in Support of Petitioner, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (No. 96-568) [hereinafter Franke & Hunter Brief].
(47) See, e.g., Schwartz, supra note 46, at 1745-47.
(48) See, e.g., Mary Coombs, Title VII and Homosexual Harassment After Oncale : Was It a Victory?, 6 DUKE J. GENDER L. & POL'Y 113,144-45 (1999); Schwartz, supra note 46, at 1746-47; HALLEY, supra note 31, at 296.
(49) Schwartz, supra note 46, at 1747-48.
(50) Id. Oncale can thus be understood as a part of a more general trend to establish straight white men as the legitimate victims of discrimination and therefore to further elide the actual inequalities that continue to structure the U.S. workplace. See generally Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 HARV. L. REV. 1470 (2004) (using Brown v. Board of Education to trace the development of antisubordination and anticlassification interpretations of the Equal Protection Clause).
(51) Oncale v. Sundowner Offshore Srvs., Inc, 523 U.S. 75, 80 (1998) (quoting Harris v. Forklift Sys., Inc., 517 U.S. 17,25 (1993)).
(52) See also Schwartz, supra note 46, at 1736-37 (discussing the deficiencies of these routes).
(53) Oncale, 523 U.S. at 80-81.
(54) See Schwartz, supra note 46, at 1734-36 (describing how, on remand, Oncale's motion for summary judgment was rejected after be relied on two of the Court's proposed evidentiary routes).
(55) 349 F.3d 540,541 (8th Cir. 2003).
(56) Id. at 541-52.
(57) Id. at 543.
(58) Id. at 543-44.
(59) Id. at 544.
(61) McCown, 349 E3d at 544.
(62) See, e.g., Abrams, supra note 28, at 1201-02, 1213-14; Franke. supra note 28, at 759-62. See also Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 590-601 (1990); Judith Butler, Disorderly Woman, 53 TRANSION 86, 90-95 (1991). See generally Katherine Franke, Cunning Stunts: From Hegemony to Desire: A Review of Madonna's Sex, 20 N.Y.U.L. & Soc. CHANGE 549, 555-61 (1993-94) [hereinafter Franke, Cunning Stunts].
(63) See Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Towards a Feminist Jurisprudence, 8 SIGNS 635,638 (1983) ("This defines our task not only because male dominance is perhaps the most pervasive and tenacious system of power in history, but also because it is metaphysically nearly perfect.").
(64) See, e.g., John A. Miller et al., Comments on MacKinnon's "Feminism, Marxism, Method, and the State," 10 SIGNS 168 (1984). For a response to some of these points, see Catharine A. MacKinnon, Points Against Postmodernism, 75 CHI-KENT L. REV. 687 (2000).
(65) Franke, supra note 28, at 729-62; Schultz, supra note 28, at 1710-55.
(66) Franke, supra note 28, at 706-12,730-31 ; Schultz, supra note 28, at 1701-04.
(67) Schultz, supra note 28, at 1732-37.
(68) See Franke, supra note 28, at 692 (describing the "avoidance technique" of courts unwilling to embrace MacKinnon, but convinced that sexual harassment represents a form of gendered power); id. at 714-25 (discussing the claim that sexual harassment is discriminatory because it is sexual).
(69) Id. at 694-95.
(70) See, e.g., Abrams, supra note 28, at 1201-02; Franke, supra note 28, at 714-25,730-47; Schultz, supra note 28, at 1698-99, 1704-05. See also Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 COLUM. L. REV. 304,307-14 (summarizing challenges by pro-sex feminists to dominance feminism).
(71) See Barnes v. Costle, 561 F.2d 983,988-92 (D.C. Cir. 1977); see also Franke, supra note 28, at 730-47; Schultz, supra note 28, at 1701-04.
(72) MacKinnon, supra note 63, at 646-47; Catharine A. MacKinnon, Feminism, Marxism, Method and the State: An Agenda for Theory, 7 SIGNS 515, 531-33 (1982) [hereinafter MacKinnon, Agenda for Theory]; CATHARINE A. MACKINNON, Sexuality, in TOWARD A FEMINIST THEORY OF THE STATE 126 (1989).
(73) See, e.g., Lisa Duggan et al., False Promises: Feminist Anti-Pornography Legislation, 38 N.Y.L. SCH. L. REV. 133 (1993); Paul Brest & Ann Vandenberg, Politics, Feminism. and the Constitution: The Anti-Pornography Movement in Minneapolis, 29 STAN. L. REV. 607 (1987).
(74) See Abrams, supra note 70, at 314-24 (describing responses by the Feminist Anti-Censorship Task Force); Franke, supra note 28, at 741-42,746-47 (noting radical feminism risks ignoring the sexual agency of women). See generally Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L. REV. 181 (2001) (analyzing the tendency of legal feminists to frame discussions of female sexuality in terms of either heteronormative reproductivity or sexual danger from men); Franke, Cunning Stunts, supra note 62 (discussing post-structuralist alternatives to essentialism).
(75) See, e.g., Abrams, supra note 28, at 1209.
(76) See Abrams, supra note 28, at 1225-1229; Franke, supra note 28, at 762-72; Schultz, supra note 28, at 1774-98.
(77) See Katherine M. Franke, Gender, Sex, Agency and Discrimination: A Reply to Professor Abrams, 83 CORNELL L. REV. 1245, 1252 (1998) [hereinafter Franke, Gender, Sex, Agency and Discrimination]; Franke, supra note 28, at 764-72; Schultz, supra note 28, at 1774-77.
(78) See Abrams, supra note 28, at 1209; Franke, Gender; Sex, Agency and Discrimination, supra note 77, at 1251-52; Schultz, supra note 28, at 1759-61.
(79) Abrams in particular argues that a pluralized understanding of these dynamics is crucial to a revised theory of sexual harassment. See Abrams, supra note 28, at 1202, 1215, 1217. See also Franke, supra note 28, at 730-47; Schultz, supra note 28, at 1769-74.
(80) See, e.g., Franke & Hunter Brief, supra note 46, at *14 (asserting that practices that perpetuate sex-role stereotyping are paradigmatic of sex discrimination); Abrams, supra note 28, at 1215 (summarizing the plural dynamics constituting sexual harassment); Schultz, supra note 28, at 1762-69 (defining sexual harassment as "broadened to cover all conduct that is rooted in gender-based expectations," including nonsexual conduct).
(81) Franke, supra note 28, at 696,763,739 n.247. See also Franke, Gender, Sex, Agency and Discrimination, supra note 77, at 1251-54 (discussing heteropatriarchy).
(82) Franke, supra note 28, at 739 n.247. See also Franke, Gender, Sex, Agency and Discrimination, supra note 77, at 1251-52.
(83) Franke, Gender, Sex, Agency and Discrimination, supra note 77, at 1253.
(84) Id. at 1250-53.
(85) Franke, supra note 28, at 693.
(86) Id. at 764-65.
(87) Id. at 766.
(88) Id. at 761.
(89) Id. at 760.
(90) Id. at 693-94,770-71.
(91) Schultz, supra note 28, at 1692-1710.
(92) Id. at 1755.
(93) Id. at 1762-59.
(94) Id. at 1756-61.
(95) Id. at 1762, 1769-89.
(96) Id. at 1762-66.
(97) Schultz, supra note 28, at 1691-92.
(98) See, e.g., Abrams, supra note 28, at 1172.
(99) Id. at 1201-02.
(100) Id. at 1172.
(101) Id. at 1194-98.
(102) Id. at 1194-95.
(103) Id. at 1206-07.
(104) Abrams, supra note 28, at 1207-08.
(105) Id. at 1210.
(106) As more than a decade has passed since these articles were published, one imagines that Franke, Schultz, and Abrams would themselves modify their own accounts in certain ways. Yet, because their accounts have assumed a central place in the theoretical understanding of sexual harassment, any reassessment must be situated in relation to their theories.
(107) See, e.g., Abrams, supra note 28, at 1172 (defining sexually harassing actions as those that "preserve male control and entrench masculine norms in the workplace"); Franke, supra note 28, at 772 ("On this account, sexual harassment is sex discrimination precisely because its use and effect police hetero-patriarchal gender norms in the workplace."); Schultz, supra note 28, at 1762 C[W]e should also recognize that much of the behavior that creates a hostile work environment is conduct that has the purpose or effect of undermining the perceived or actual competence of women (and some men) who threaten the idealized masculinity of those who do the work."). These examples are discussed by Schwartz, supra note 46, at 1767-68.
(108) See Franke, supra note 28, at 696,763,739 n.247 (heteropatriarchy); Franke, Gender, Sex, Agency and Discrimination, supra note 77, at 1251-54 (heteropatriarchy).
(109) See Schultz, supra note 28, at 1756-61. Schultz is careful to reject the existence of a monolithic set of male interests. See id. at 1755 n.387 (defining harassment as "a medium through which some men seek to defend their view of masculine interest and identity against contesting visions proposed by other men").
(110) See Franke, supra note 28, at 693 (defining sexual harassment as a "practice that ... envisions women as feminine, (hetero)sexual objects, and men as masculine, (hetero)sexual subjects"); Schultz, supra note 28, at 1756-74 (defining sexual harassment as a practice "designed to undermine a woman's outward image of competence and sense of self-confidence as a worker" while maintaining an idealized masculine image).
(111) See Schultz, supra note 28, at 1774-77. See also Abrams, supra note 28, at 1218-19.
(112) See, e.g., Abrams, supra note 28, at 1205 ("Sexual harassment ... functions as a means of establishing male control and expressing or perpetuating masculine norms in the workplace."); Franke, supra note 28, at 763 ("[T]he wrong of gender-based subordination lies in its power as an overarching regulatory practice that has as its goal the production of feminine women as (hetero)sexual objects and masculine men as (hetero) sexual subjects."); Schultz, supra note 28, at 1760 ("[H]ostile work environment harassment is an endemic feature of the workplace that is both engendered by, and further entrenches, the sex segregation of work.").
It is important to distinguish the descriptive use of gender hierarchy from the explanatory use. It is certainly legitimate to use gender as a category through which to analyze a particular social formation to reveal the degree of gender-based social stratification. In such a framework, gender hierarchy is an analytical construction resulting from a prior methodological choice. It is quite different, however, to translate this analytic result into a causal explanation for these inequalities, in effect using the existence of gender stratification as evidence to support the existence of a unitary gender structure ("patriarchy," "male control"), which then is understood to produce those very inequalities. See, e.g., Anna Pollert, Gender and Class Revisited; or, the Poverty of 'Patriarchy', 30 SOCIOLOGY 639 (1996) (criticizing feminist models that conflate descriptive and causal uses of gender hierarchy). For a still valuable overview and critique of hierarchical models of gender power, see R.W. CONNELL, GENDER & POWER: SOCIETY, THE PERSON, AND SEXUAL POLITICS 41-61 (1987).
(113) See Franke, supra note 28, at 766-68 (excluding both same-sex horseplay and the demands of the "gay harasser" from the legal definition of sexual harassment).
(114) Schultz, supra note 28, at 1800.
(115) Id. at 1801. Schultz does not address the possibility that anomalous same-sex conduct, such as that in Oncale, could constitute an injury to the plaintiff's experience of his masculinity without reinforcing more general gender norms. This problem also weakens the otherwise excellent arguments in Hilary S. Axam & Deborah Zalesne, Simulated Sodomy and Other Forms of Heterosexual "Horseplay": Same Sex Sexual Harassment, Workplace Gender Hierarchies, and the Myth of the Gender Monolith Before and After Oncale, 11 YALE J.L. & FEMINISM 155 (1999).
(116) Abrams, supra note 28, at 1223.
(117) See id. at 1226-28.
(118) See JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (1990); JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" (1993) [hereinafter BUTLER, BODIES THAT MATTER]; JUDITH BUTLER, THE PSYCHIC LIFE OF POWER: THEORIES IN SUBJECTION (1997); JUDITH BUTLER, EXCITABLE SPEECH; A POLITICS OF THE PERFORMATIVE (1997); UNDOING GENDER (2004). See also Judith Butler Symposium, 21 COLUM. J. GENDER & L. (2011). For a parallel, practice-based theory of gender, see CONNELL, supra note 112, at 61-90.
(119) See, e.g., Franke, supra note 28, at 735 n.220,763 n.380,765 n.390,766, 771 nn.41 l-12; Schultz, supra note 28, at 1686 n.8. See also Abrams, supra note 70, at 357-58.
(120) See Franke, supra note 28, at 763 (criticizing subordination theorists for presuming that "male and female subjects come to the sexually harassing workplace fully constituted: he as subordinator/colonizer, she as subordinated/colonized").
(121) Id. at 770-71. See also id. at 771 ("What is important about these technologies of gender is that they operate 'on us' all the time, constantly reinforcing and creating feminine women and masculine men, thereby normalizing a set of gender roles.").
(122) See, e.g., id. at 693 (describing sexual harassment as "the specialized instantiation of a sexist ideology" in which "the act embodies fundamental gender stereotypes"); id. at 747 ("Sexual conduct in the workplace has a special sting for women, not because our sensibilities render us particularly vulnerable to sex, but because the conduct literally sexualizes us. It embodies stereotypic gender norms that become true by virtue of their enactment.").
(123) See, e.g., id. at 696, 763,764, 770.-71 (describing how the reflexive constitution of gender roles reproduces already existing gender stereotypes).
(124) See, e.g., Franke, supra note 28, at 696 (arguing that sexual harassment "perpetuates, enforces, and polices" gender norms.); id. at 728 (arguing that sexual harassment "replicates and perpetuates" sexual hierarchy.); id, at 771 (arguing that relevant case law illustrates how sexual harassment "as regulatory practice inscribes, enforces, and polices" a particular view of who men and women should be.); Schultz, supra note 28, at 1760 ("[H]ostile work environment harassment is an endemic feature of the workplace that is both engendered by, and further entrenches, the sex segregation of work.").
(125) See Franke, supra note 28, at 694-95.
(126) Id. at 766.
(127) Id. at 770-71.
(128) Abrams, supra note 28, at 1226.
(129) Schultz, supra note 28, at 1776.
(130) Franke, supra note 28, at 766.
(132) I have omitted reference to Schultz because her discussion of same-sex sexual harassment revolves exclusively around the punishment of the nonconforming man as a means of reinforcing the link between work competency and an idealized image of masculinity. Schultz, supra note 28, at 1774-89. Unlike Franke and Abrams, Schultz does not address cases involving either "horseplay" or the "gay harasser." Id. Presumably, Schultz would find such cases to fall outside the protections of Title VII.
(133) Franke, supra note 28, at 766-67.
(134) Id. at 767. Franke notes that victims of the "gay harasser" can claim disparate treatment under Title VII because the harassment would not have occurred "but for" the gender of the victim (due to the harasser's sexual orientation), ld. at 767 n.398.
(135) Abrams, supra note 28, at 1227-28.
(136) Id. at 1228.
(138) Franke, supra note 28, at 770-71.
(139) Sexual harassment thus must be understood, not as the unilateral imposition of masculine authority or gender-related norms, but as itself a collectivized scene of gender performance, in which the participants actively seek to solicit and rearticulate the sexual significance of that enactment. For a suggestive analysis of rape that seeks to resist the narrative of passive victimization, see Sharon Marcus, Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention, in FEMINISTS THEORIZE THE POLITICAL 385 (Judith Butler & Joan W. Scott eds., 1992).
(140) McWilliams v. Fairfax Cnty. Bd. of Supervisors, 72 F.3d 1191,1199 (4th Cir. 1996).
(141) Franke and Schultz, for instance, interpret McWilliams's harassment as punishment for his gender nonconformity. See Franke, supra note 28, at 739-40; Schultz, supra note 28, at 1781-82.
(142) Abrams, supra note 28, at 1227-28.
(143) Id. at 1228.
(145) Abrams concludes her essay by declaring that these issues must be resolved through "a fact-specific inquiry." Id. at 1228-29. But, as with Franke's categorical divisions between the "gay harasser" and the "nonconforming man," facts cannot resolve such theoretical issues because those facts are themselves already framed by a specific conceptual lens that renders them intelligible. To inquire, for instance, whether certain conduct has "entrenched in the workplace stereotypic notions of male sexual subjectivity," id. at 1229, is merely to beg the question whether there is a unitary "male sexual subjectivity" to be "entrenched," and whether the conduct in question might perform any other cultural work beyond that of "entrench[ing]" pre-existing norms.
(146) Id. at 1228.
(147) Id. at 1228 n.309.
(148) Abrams, supra note 28, at 1229 n.311.
(151) Id. at 1229 n.312.
(152) Id. Abrams's repeated use of the language of resemblance is symptomatic of her search for a more performative model of sexual harassment. For instance, Abrams repeatedly finds conduct to "parallel," "resemble," or "derive" from male norms because she recognizes that this conduct takes up--perhaps parodically, perhaps sincerely--already existing social norms and deploys them for purposes of its own. The next step would be to inquire how the cultural appropriation of these norms also entails their active resignification in ways that cannot be determined or controlled in advance.
(153) Franke, supra note 28, at 768.
(154) Id. at 769.
(155) See id. at 730-47.
(156) Id. at 769.
(157) Id. at 768-69. Franke calls this the "double bagging" rule, referring to the common practice of "bagging," in which male workers grab, or feign grabbing, one another's testicles. Id. at 769 n.406. The first time the "enlightened man" is bagged, he might be offended by such sexualized workplace conduct, but he is not being disciplined for his deviance from heteromasculine norms. Yet, after he complains to his coworkers about this conduct, the second time he is bagged, he is being punished for his refusal to accede to the sexual orthodoxy of the workplace. Thus the first bagging is an accident; the second bagging is sexual harassment.
(158) Id. at 769.
(159) Abrams, supra note 28, at 1226.
(160) Id. at 1210-11.
(161) Id. at 1226.
(162) Id. (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986)).
(163) See Franke, supra note 28, at 697-98.
(164) See id. at 697-98. Of course, Franke and Abrams both see horseplay as expressing masculine norms but not in a way that directly regulates others.
(165) See, e.g., id. at 766 (describing horseplay as "nongay hostile environment cases where a man harasses another man in the workplace, though not because he wants to have sex with or desires his victim").
(166) While same-sex sexualized abuse in the workplace is often labeled "horseplay," same-sex sexualized abuse in schools and other institutions (as well as certain isolated workplaces) is frequently described as "hazing." Yet by viewing this conduct as a form of initiation, the objectively severe sexual nature of the degradation can similarly be minimized. For examples of such abuse, see, e.g., Patrick Healy, L.I. District Is Criticized In Hazing Case, N.Y. TIMES, Sept. 23, 2003, at BI (describing allegations that varsity football players sexually assaulted younger teammates by inserting broomsticks, pine cones, and golf bails into the anuses of younger boys); Cioffi v. Averill Park Cent. Sch. Dist., 444 F.3d 158,161 (2d. Cir. 2006) (describing allegations that a fourteen-year-old high school football player had been "tea-bagged" by other football players).
(167) See Brief for Respondents, supra note 1, at *33 (describing Oncale's abuse as "sexually charged hazing in the workplace"); Franke, supra note 28, at 697 n.17 (listing Oncale among horseplay cases).
(168) Franke did not reconsider the meaning of horseplay even after encountering the complete facts of Oncale's case. See Franke & Hunter Brief, supra note 46.
(169) Franke, supra note 28, at 768.
(170) 189 Cal. App. 3d 1420, 1424 (1987).
(171) Franke, supra note 28, at 768-69.
(172) See, e.g., James v. Platt River Steel Co., 113 F. App'x 864,865 (10th Cir. 2004) (unpublished) (harasser jumped on plaintiff's back, stuck his tongue in plaintiff's ear, grabbed plaintiff's "crotch and private parts," and referred to plaintiff as his "bitch"); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1064 (9th Cir. 2002) (en banc) (harassers caressed and hugged plaintiff and repeatedly "grabbed him in the crotch and poked their fingers in his anus through his clothing"); Leake v. Ryan's Family Steakhouse, 5 Fed. App'x 228,230 (4th Cir. 2001) (per curiam) (unpublished) (harasser made "sexual remarks" about plaintiff, touched plaintiff's buttocks and genitals, and pushed plaintiff back into a bathroom as plaintiff was leaving, where harasser groped plaintiff and said, "Come on, let's do this here."); Shepherd v. Slater Steels Corp., 168 F.3d 998, 1001 (7th Cir. 1999) (harasser "play[ed] with himself" in front of plaintiff, "wagged" his exposed penis in front of plaintiff's face, and said he was "liable to crawl up on top of [plaintiff] and fuck [plaintiff] in the ass"); Fry v. Holmes Freight Lines, Inc., 72 F. Supp. 2d. 1074, 1076 (W.D. Missouri 1999) (harassers kissed plaintiff's neck, "pounded" plaintiff's buttocks to simulate intercourse, and asked plaintiff, "Whose dick have you been sucking?" "Do you want to take it in the butt?" and "Do you want to suck my dick?"); Breitenfeldt v. Long Prairie Packing Co., 48 F. Supp. 2d 1170, 1172 (D. Minn. 1990) (harassers mimicked performing oral and anal acts on plaintiff and asked whether plaintiff preferred "it up the ass or down the throat.").
(173) 83 F.3d 118 (5th Cir. 1996).
(174) MacKinnon Brief, supra note 4, at 13.
(175) Brief for Respondents, supra note 1, at *3.
(176) But see Abrams, supra note 28, at 1203 n.188 (questioning the extent with which masculine norms should be identified with compulsory heterosexuality).
(177) McWilliams v. Fairfax Cnty. Bd. of Supervisors, 72 F.3d 1191, 1193 (4th Cir. 1996)
(178) MacKinnon Brief, supra note 4, at 14.
(179) See, e.g., Franke & Hunter Brief, supra note 46, at *29-30 (proposing that, even in cases of severe sexualized abuse such as that of Oncale, courts should require specific evidence of sex stereotyping, such as "whether Mr. Oncale was singled out for harassment because of his failure to live up to some standard of masculinity.... or ... because he objected to the hypermasculine environment").
(180) For the argument that sexual harassment should be understood as the opportunistic mobilization of gender-specific cultural scripts, rather than the unilateral enforcement of gender norms, see infra Part IV.A. But viewing male power as a symbolic social resource open to an ambivalent process of appropriation opens up a range of productive questions, such as the ways that African-American men might appeal to gendered forms of power to compensate for perceived racial subordination or how certain women may take up cultural scripts of masculine power.
(181) See JACKSON LEARS, REBIRTH OF A NATION: THE MAKING OF MODERN AMERICA, 1877-1920, at 71-91 (2009). See generally LIZABETH COHEN, MAKING A NEW DEAL: INDUSTRIAL WORKERS IN CHICAGO, 1919-1939 (2d ed. 2008).
(182) See MIKE DAVIS, PRISONERS OF THE AMERICAN DREAM: POLITICS AND ECONOMY IN THE HISTORY OF THE U.S. WORKING CLASS 190-91 (1986); DAVID HARVEY, THE CONDITION OF POSTMODERNITY: AN ENQUIRY INTO THE ORIGINS OF CULTURAL CHANGE 121-40 (1991); JAMES T. PATTERSON, GRAND EXPECTATIONS: THE UNITED STATES, 1945-1974, at 61-81 (1997) [hereinafter PATTERSON, GRANO EXPECTATIONS]. See also Katherine Van Wezel Stone, The Postwar Paradigm in American Labor Law, 90 YALE LJ. 1509 (1981) (discussing the ideological model of collective bargaining in the postwar period).
(183) See DAVIS, supra note 182, at 190-91; HARVEY, supra note 182, at 121-30; PATTERSON, GRAND EXPECTATIONS, supra note 182, at 61-81.
(184) See DAVIS, supra note 182, at 191; PATTERSON, GRAND EXPECTATIONS, supra note 182, at 64.
(185) See DAVIS, supra note 182, at 190; PATTERSON, GRAND EXPECTATIONS. supra note 182, at 64-81.
(186) See DAVIS, supra note 182, at 191; PATTERSON, GRAND EXPECTATIONS, supra note 182, at 367.
(187) See DAVIS, supra note 182, at 192.
(188) See HARVEY, supra note 182, at 141; Robert Brenner, Structure vs. Conjuncture: The 2006 Elections and the Rightward Shift, 43 NEW LEFT REV. 33, 41-42 (2007).
(189) See HARVEY, supra note 182, at 141; Beth Bailey & David Farber, Introduction, in AMERICA IN THE SEVENTIES l, 3 (Beth Bailey & David Farber eds., 2004).
(190) JAMES T. PATTERSON, RESTLESS GIANT: THE UNITED STATES FROM WATERGATE TO BUSH V. GORE 7 (2005) [hereinafter PATTERSON, RESTLESS GIANT].
(191) EDWARD L. AYERS ET AL., AMERICAN PASSAGES: A HISTORY OF THE UNITED STATES 814 (4th ed. 2009); HARVEY, supra note 182, at 145.
(192) HARVEY, supra note 182, at 145.
(193) Id. at 141-42.
(194) Bailey & Farber, supra note 189, at 3.
(195) See Jefferson Cowie, "Vigorously Left, Right, and Center": Crosscurrents of Working-Class America in the 1970s, in AMERICA IN THE SEVENTIES, supra note 189, 75, 76-78 [hereinafter Cowie, "Vigorously Left, Right, and Center"].
(196) See BRUCE SCHULMAN, THE SEVENTIES: THE GREAT SHIFT IN AMERICAN CULTURE, SOCIETY, AND POLITICS 111 (2002).
(197) See PATTERSON, RESTLESS GIANT, supra note 190, at 65.
(198) See Brenner, supra note 188, at 42.
(199) See generally JULIUS GETMAN, THE BETRAYAL OF LOCAL 14: PAPERWORKERS, POLITICS, AND PERMANENT REPLACEMENTS (1998); WILLIAM B. GOULD IV, AGENDA FOR REFORM 185-88, 202-03 (1993); Joseph A. McCartin, "Fire the Hell Out of Them ": Sanitation Workers' Struggles and the Normalization of the Striker Replacement Strategy in the 1970s, LAB., Fall 2005, at 67.
(200) See PHILIP NICHOLSON, LABOR'S STORY IN THE UNITED STATES 291-92 (2004).
(201) Id. at 292. See also KIM MOODY, AN INJURY TO ALL: THE DECLINE OF AMERICAN UNIONISM 155 (1997) (describing the new union posture as "a partner in corporate triage and salvation"); Katherine Van Wezel Stone, The Legacy of Industrial Pluralism: The Tension Between Individual Employment Rights and the New Deal Collective Bargaining System, 59 U. CHI. L. REV. 575 (1992) (surveying the role of labor law in the union decline of the 1980s).
(202) See generally SCHULMAN, supra note 196, at 232-34; Cowie, "Vigorously Left, Right, and Center ", supra note 195, at 100-02; Bernard D. Meltzer & Cass R. Sunstein, Public Employee Strikes, Executive Discretion, and the Air Traffic Controllers, 50 U. CHI. L. REV. 731 (1983).
(203) JEFFERSON COWIE, STAYIN' ALIVE: THE 1970S AND THE LAST DAYS OF THE WORKING CLASS 12 (2010) [hereinafter COWIE, STAYIN' ALIVE].
(204) Regents of the University of California v. Bakke, 438 U.S. 265,277-78 (1978).
(205) See, e.g., JOSHUA B. FREEMAN, WORKING-CLASS NEW YORK: LIFE AND LABOR SINCE WORLD WAR II (2001).
(206) See generally COWIE, STAYIN' ALIVE, supra note 203; KENNETH DURR, BEHIND THE BACKLASH: WHITE WORKING-CLASS POLITICS IN BALTIMORE, 1940-1980 (2007). For the historical roots of these changes, see THOMAS J. SUGRUE, ORIGINS OF THE URBAN CRISIS: RACE AND INEQUALITY IN POSTWAR DETROIT (2005); Thomas J. Sugrue, Crabgrass-Roots Politics: Race, Rights, and the Reaction against Liberalism in the Urban North, 1940-1964, 82 J. AM. HIST. 551 (1995).
(207) See generally STANLEY ARONOWITZ, THE POLITICS OF IDENTITY; CLASS, CULTURE, SOCIAL MOVEMENTS (1992) (tracing the displacement of class-based identities after the rise of "disorganized" capitalism in the 1980s); Geoff Eley & Keith Nield, Farewell to the Working Class?, INT'L LAB. & WORKING-CLASS HIST., Spring 2000, at 1 (tracing the uneven recomposition of working-class collectivity after the 1970s).
(208) See PATTERSON, GRAND EXPECTATIONS, supra note 182, at 637-77 (describing the "backlash" of the late Sixties); Cowie, "Vigorously Left, Right, and Center", supra note 195, at 77, 84-91,95. See generally DURR, supra note 206.
(209) Pete Hamill, The Revolt of the White Lower Middle Class, N.Y. MAG., Apr. 14, 1969. See also Jefferson Cowie, Nixon's Class Struggle: Romancing the New Right Worker, 1969-1973, 43 LAB. HIST. 257, 260-61 (describing the influence of Hamill's essay on the Nixon administration's hopes to forge a "New Majority" based on white working-class rage) [hereinafter Cowie, Nixon's Class Struggle].
(210) Richard M. Nixon, Address to the Nation on the War in Vietnam, November 3, 1969, in LANDMARK SPEECHES ON THE VIETNAM WAR 142, 155-56 (Gregory Allen Olson ed., 2010). See SCHULMAN, supra note 196, at 23-52 (on the broader cultural meaning of the Nixon presidency).
(211) PATTERSON, GRAND EXPECTATIONS, supra note 182, at 755-56. See also Joshua B. Freeman, Hardhats: Construction Workers, Manliness, and the 1970s Pro-War Demonstrations, 26 J. Soc. HIST. 725 (analyzing the cultural image of the 1970s construction worker as "politically reactionary, pathologically violent, and deeply misogynist"); Cowie, Nixon's Class Struggle, supra note 209, at 264-66 (describing the Nixon administration's appropriation of the protests).
(212) See JACK TAGER, BOSTON RIOTS: THREE CENTURIES OF SOCIAL VIOLENCE 196-208 (2000). See generally RONALD FORMISANO, BOSTON AGAINST BUSING: RACE, CLASS, AND ETHNICITY IN THE 1960s AND 1970s (2d ed. 2003); Barry Stuart Roberts, The Extent of Federal Judicial Equitable Power: Receivership of South Boston High School, 12 NEW ENG. L. REV. 55 (1976) (discussing the 1975 district court decision to place South Boston High School under receivership).
(213) See Brenner, supra note 188, at 45.
(214) See DAVIS, supra note 182, at 157-80; SCHULMAN, supra note 196, at 193-217. See generally LISA McGIRR, SUBURBAN WARRIORS: THE ORIGINS OF THE NEW AMERICAN RIGHT (2002).
(215) See generally THOMAS BYRNE EDSALL WITH MARY D. EDSALL, CHAIN REACTION: THE IMPACT OF RACE, RIGHTS, AND TAXES ON AMERICAN POLITICS (1992).
(217) See, e.g., THOMAS FRANK, WHAT'S THE MATTER WITH KANSAS? How CONSERVATIVES WON THE HEART OF AMERICA (2005). See also Tom Mertes, A Republican Proletariat, 30 NEW LEFT REV. 37 (2004) (discussing Frank). But see Larry M. Bartels, What's the Matter with What's the Matter with Kansas?, 1 Q.J. POL. SCI. 201 (2006) (criticizing Frank based on empirical evidence of voting patterns).
(218) See STEPHANIE COONTZ, THE WAY WE NEVER WERE; AMERICAN FAMILIES AND THE NOSTALGIA TRAP (1992) (analyzing the "family crisis" of the 1980s and the idealized image of the middle-class family that it presumed); Matthew D. Lassiter, Inventing Family Values, in RIGHTWARD BOUND: MAKING AMERICA CONSERVATIVE IN THE 1970S 13 (Bruce J. Schulman & Julian E. Zelizer eds., 2008) (analyzing the New Right investment in "family values").
(219) See generally Cowie, Nixon's Class Struggle, supra note 209 (discussing Nixon's "blue-collar strategy").
(220) Cowie notes the ironic fate of class in 1970s public discourse: just as the national discussion of class "teetered toward extinction," U.S. society began to experience unprecedented social inequality and income polarization. Jefferson Cowie, Portrait of the Working Class in a Convex Mirror: Toward a History of the Seventies, LAB., Fall 2005, at 93, 93-97.
(221) See generally DAVID SAVRAN, TAKING IT LIKE A MAN: WHITE MASCULINITY, MASOCHISM, AND CONTEMPORARY AMERICAN CULTURE (1998) (providing a theoretical account of white male identification with victimization since the 1950s).
(222) See generally Ian F. Haney Lopez, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985, 1021-46 (2007).
(223) SCHULMAN, supra note 196, at 80-84. See generally MATTHEW FRYE JACOBSON, ROOTS Too: WHITE ETHNIC REVIVAL IN POST-CIVIL RIGHTS AMERICA (2006).
(224) On nineteenth-century whiteness, see NOEL IGNATIEV, How THE IRISH BECAME WHITE (1995); MATTHEW FRYE JACOBSON, WHITENESS OF A DIFFERENT COLOR: EUROPEAN IMMIGRANTS AND THE ALCHEMY OF RACE (1999); DAVID R. ROEDIGER, THE WAGES OF WHITENESS" RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991).
(225) For instance, although Allan Bakke did not belong to a discernible white ethnic group, several white ethnic organizations submitted amicus briefs in support of his position. See Brief of the Polish American Congress, The National Advocates Society and the National Medical and Dental Association as Amici Curiae, Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (No. 76-811), 1977 WL 204793; Brief of Amicus Curiae for the Order Sons of Italy in America for Support of Respondent, Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (No. 76-811), 1977 WL 189539.
(226) See SCHULMAN, supra note 196, at 58-63; Thomas J. Sugrue & John D. Skrentny, The White Ethnic Strategy, in RIGHTWARD BOUND, supra note 218, 171, 177-78.
(227) Eric Porter, Affirming and Disaffirming Actions: Remaking Race in the 1970s, in AMERICA IN THE SEVENTIES, supra note 189, at 50, 59-60; SCHULMAN, supra note 196, at 68.
(228) See Sugrue & Skrentny, supra note 226, at 178,
(229) See id.; Howard Winant, Behind Blue Eyes: Reconstructing the White University, 225 NEW LEFT REV. 73, 74-75; Micaela di Leonardo, White Ethnicities, Identity Politics, and Baby Bear's Chair, 41 Soc. TEXT 165, 167-78 (1994).
(230) See di Leonardo, supra note 229, at 175; Sugrue & Skrentny, supra note 226, at 178-80; Winant, supra note 229, at 75.
(231) Steven Maynard, Rough Work and Rugged Men: The Social Construction of Masculinity in Working-Class History, 23 LABOUR/LE TRAVAIL 159, 160-66 (1989). See also Freeman, supra note 211; Steve Meyer, Rough Manhood: The Aggressive and Confrontational Shop Culture of U.S. Auto Workers During World War II, 36 J. Soc. HIST. 125 (2002). For an overview of work in this vein, see Ava Baron, Masculinity, the Embodied Male Worker, and the Historian's Gaze, 69 INT'L LAB. & WORKING-CLASS HIST. 143 (2006). Frequently historical studies of masculinity have relied on a model of masculine "crisis" in which masculinity is imagined as suddenly thrown into disarray by changes in the structure of ownership, the division of labor, the incursion of women and/or immigrants, and fears of national decline. But, as historians have come to recognize, that narrative of crisis--which finds no counterpart in the construction of femininity--is itself an integral part of the construction of masculinity, leading to predictably reactionary calls for "remasculinization." See Judith A. Allen, Men Interminably in Crisis? Historians on Masculinity, Sexual Boundaries, and Manhood, 82 RADICAL HIST. REV. 191 (2002); Bryce Traister, Academic Viagra: The Rise of American Masculinity Studies, 52 AM. Q. 274 (2000).
(232) Baron, supra note 231, at 145-47; Maynard, supra note 231, at 162-66.
(233) See generally MICHAEL HARDT & ANTONIO NEGRI, EMPIRE 280-303 (2000) (describing the "informationalization" of production); HARVEY, supra note 182. 141-97 (describing the transition from Fordism to flexible accumulation); Mark Barenberg, Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production, 94 COLUM. L. REV. 753,879-928 (1994).
(234) See generally MANUEL CASTELLS, THE RISE OF THE NETWORK SOCIETY (1996); HARDY & NEGRI, supra note 233, at 284-86.
(235) See HARDT & NEGRI, supra note 233, at 289-90.
(236) CASTELLS, supra note 234, at 166-80; HARDT & NEGRI, supra note 233, at 289-90; HARVEY, supra note 182, at 155-56; Barenberg, supra note 233, at 882-83.
(237) See SASKIA SASSEN, THE GLOBAL CITY: NEW YORK, LONDON, TOKYO 90-197 (2001); John Tschetter, Provider Services Industry: Why Are They Growing So Rapidly?, MONTHLY LAB. REV., Dec. 1987, at 31.
(238) HARDT & NEGRI, supra note 233, at 291-92.
(239) Id. at 292-93; Michael Hardt, Affective Labor, BOUNDARY 2, Fall 1999, at 89.
(240) HARDT & NEGRI, supra note 233, at 292-93.
(242) HARVEY, supra note 182, at 150. See generally Katherine V.W. Stone, The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law, 48 UCLA L. REV. 519, 539-49 (2001).
(243) CASTELLS, supra note 234, at 216-303; HARVEY, supra note 182, at 150-51.
(244) CASTLES, supra note 234, at 169-72; Barenberg, supra note 233, at 884-90 (describing the objective emergence of self-managing teams), 904-18 (describing the possibilities of domination attending self-managing teams).
(245) HARVEY, supra note 182, at 152-53; SASSEN, supra note 237, at 289-305.
(246) HARVEY, supra note 182, at 153. See generally Stone, supra note 242.
(247) See DURR, supra note 206, at 104-09 (discussing racial barriers within Baltimore unions during the 1950s); DENNIS A. DESLIPPE, RIGHTS, NOT ROSES; UNIONS AND THE RISE OF WORKING-CLASS FEMINISM 1945-80 (discussing the postwar emergence of working-class feminism in U.S. unions and the resistance it had to overcome).
(248) Erik Olin Wright et al., The American Class Structure, 47 AM. Soc. REV. 709, 724 (1982). See also Mitra Toossi, A Century of Change: The U.S. Labor Force, 1950-2050, MONTHLY LAB. REV., May 2002, at 15 (the number of women participating in the labor force rose from eighteen million in 1950 to sixty-six million in 2000).
(249) Wright et al., supra note 248, at 724.
(250) See David Roediger et al., The End of Whiteness? Reflections on a Demographic Landmark, NEW LAB. F., Spring/Summer 2001, at 49. See also Julie Bettie, Class Dismissed? Roseanne and the Changing Face of Working-Class Iconography, 45 Soc. TEXT 125 (1995) (tracing shifts in the popular cultural representations of the working class); Marion Crain & Ken Matheny, Labor's Identity, Crisis, 89 CAL. L. REV. 1767 (2001) (analyzing how labor law, among other factors, has continued to marginalize race, ethnicity, gender, and other social identities in labor ideology); Eley & Nield, supra note 207 (tracing the uneven shift from the industrial male proletariat to a new working-class formation centered around female white-collar workers and public employees).
(251) DONNA HARAWAY, SIMIANS, CYBORGS, AND WOMEN: THE REINVENTION OF NATURE 166 (1991).
(252) Id. See also HARDT & NEGRI, supra note 233, at 293 (arguing that the new prominence of affect in contemporary labor represents the generalization of a model of production previously identified as--and culturally understood to be--"women's work").
(253) See, in particular, GEORGE CHAUNCEY, GAY NEW YORK: GENDER, URBAN CULTURE, AND THE MAKING OF THE GAY MALE WORLD, 1890-1940, at 13-23 (1995).
(254) See JOHN D'EMILIO & ESTELLE B. FREEDMAN, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA (2d ed. 1998); Robert A. Padgug, Sexual Matters: On Conceptualizing Sexuality in History, in PASSION AND POWER: SEXUALITY IN HISTORY 14 (Kathy Peiss et al. eds., 1989); George Chauncey, "What Gay Studies Taught the Court": The Historians' Amicus Brief in Lawrence v. Texas, 10 GLQ 509 (2004). See generally MICHEL FOUCAULT, HISTORY OF SEXUALITY: AN INTRODUCTION: VOLUME 1 (Robert Hurley trans., 1978).
(255) On the medical model of homosexuality and its vicissitudes, see George Chauncey, From Sexual Inversion to Homosexuality: The Changing Medical Conceptualization of Female "Deviance," in PASSION AND POWER, supra note 254, at 87 (discussing female "deviance" in nineteenth-century U.S. medicine); JONATHAN NED KATZ, THE INVENTION OF HETEROSEXUALITY (1995) (tracing the emergence of "heterosexuality"); JENNIFER TERRY, AN AMERICAN OBSESSION: SCIENCE, MEDICINE, AND HOMOSEXUALITY IN MODERN SOCIETY (1999) (tracking the shifting medical discourse of "homosexuality" as a response to the broader anxieties of U.S. society); JEFFREY WEEKS, COMING OUT: HOMOSEXUAL POLITICS IN BRITAIN FROM THE NINETEENTH CENTURY TO THE PRESENT (1979).
(256) See CHAUNCEY, supra note 253, at 90-130. Other cultures continue to organize their dominant understanding of gender/sex roles outside of the heterosexual/homosexual binary. See, e.g., ROGER N. LANCASTER, LIFE IS HARD: MACHISMO, DANGER, AND THE INTIMACY OF POWER IN NICARAGUA 235-78 (1992) (describing how in Nicaraguan popular culture the passive anal-receptive partner is stigmatized as the cochon, or "queer," whereas the active-insertive partner is seen as a "real man").
(257) See CHAUNCEY, supra note 253, at 13-23.
(258) Id. at 13-23, 70-71.
(259) Id. at 14-23.
(261) Id. at 87-95. See also PETER BOAG, SAME-SEX AFFAIRS: CONSTRUCTING AND CONTROLLING HOMOSEXUALITY IN THE PACIFIC NORTHWEST 25-26, 31-35 (2003) (describing wolf/lamb relationships within the turn-of-the-twentieth-century U.S. sexual system); REGINA KUNZEL, CRIMINAL INTIMACY: PRISON AND THE UNEVEN HISTORY OF MODERN SEXUALITY 62-71 (2008) (describing the wolf/punk relationship as part of the U.S. prison sexual culture in the 1920s and 1930s).
(262) See CHAUNCEY, supra note 253, at 87-95.
(263) Id. Of course, many of these categories were frequently conflated, with "wolf" and "jocker" in particular being used interchangeably to indicate otherwise masculine men who maintained the active-insertive position in sex in contrast to the punk or lamb. See CHAUNCEY, supra note 253, at 87; KUNZEL supra note 261, at 66; BOAG, supra note 261, at 25-26.
(264) BOAG, supra note 261, at 88.
(265) Undoubtedly, the opposition between "acts" versus "identities" was galvanized by Foucault's History of Sexuality. See FOUCAULT, supra note 254, at 43. But see David Halperin, Forgetting Foucault: Acts, Identities, and the History of Sexuality, REPRESENTATIONS, Summer 1998, at 93 (exploring the complexities of this opposition in Foucault and in the historical formation of early Greek sexuality). In any case, the general tendency to narrativize the construction of sexuality goes beyond the influence of Foucault's work. See EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 44 n.41 (1990) (discussing accounts that narrativize the development of sexual paradigms with modern homosexuality as their conclusion).
(266) SEDGWICK, supra note 265, at 45-48.
(267) Id. at 47.
(268) Id. at45.
(269) DAVID HALPERIN, HOW TO Do THE HISTORY OF HOMOSEXUALITY 109 (2002). See also id. at 10-13 (discussing Sedgwick's criticism of his earlier work).
(270) Id. at 109-10.
(271) Id. at 109.
(272) See generally KUNZEL, supra note 261, at 8-9 (arguing that the situational nature of prison sexual culture suggests the dangerously "situational" nature of all sexual identity).
(273) See JOHN HOWARD, MEN LIKE THAT: A SOUTHERN QUEER HISTORY 3-17 (2001).
(275) CHAUNCEY, supra note 253, at 76-91. See also Maynard, supra note 231, at 167-69 (noting that male bushworkers in the logging camps of northern Ontario in the late nineteenth and early twentieth century engaged in same-sex relations). On the sexual significance of the open seas, see HANS TURLEY, RUM, SODOMY, AND THE LASH: PIRACY, SEXUALITY, AND MASCULINE IDENTITY (1999). On prison sexual cultures, see KUNZEL, supra note 261.
(276) BOAG, supra note 261.
(277) Id. at 15-44.
(278) Id. at 25-28,35-39.
(279) Id. at 89-124.
(280) Id. at 117-20.
(281) 308 F.3d 351,353-54,367-69 (4th Cir. 2002).
(282) Id. at 369.
(284) 90 F.3d 1372, 1375 (8th Cir. 1996).
(285) 895 F. Supp. 1288, 1296 (S.D. Iowa 1995).
(286) 48F. Supp. 2d 1170 (D. Minn. 1990).
(287) Id. at 1172.
(290) Raewyn Connell employs the concept of the "patriarchal dividend" in order to explore the ways that individual men actively enjoy the benefits derived from "patriarchy" as a symbolic structure, even when they do not directly engage in harassment or discrimination. R.J. CONNELL, MASCULINITIES 79 (1995). My account argues that the reverse relationship may also apply. Whereas the patriarchal dividend focuses on the hidden or indirect participation (and benefit) of men in the symbolic structure of patriarchy, I want to emphasize how men may overtly seek to invoke (or dramatize) their own participation in "patriarchy" precisely because their share of the patriarchal dividend is missing or withdrawn.
(291) See Abrams, supra note 28, at 1215 ("There is sexual harassment that involves the expression of sexual desire, sexual harassment that involves sex but no sexual desire, and even sexual harassment that involves no sex."); Franke, supra note 28, at 729 ("[S]ex is the method, but sexism is the meaning of sexual harassment."); Schultz, supra note 28, at 1797 ("We need an account of hostile work environment harassment that recognizes that sexuality is only one tool that male workers can deploy in a struggle to maintain the masculine composition and image of more highly rewarded jobs.").
(292) CONNELL, supra note 290, at 109-19. See also Michelle Fine et al., (In)Secure Times: Constructing White Working-Class Masculinities in the Late 20th Century, GENDER & SOC'Y, Feb. 1997, at 52 (drawing on ethnographic studies of white working-class adult and teenage men from the late 1980s and 1990s to trace how their eroded racial and class status leads to a characteristic oppositional stance based on gender and race that seeks to displace the realities of class).
(293) CONNELL, supra note 290, at 109-19.
(294) Id. at 115-16.
(296) Id. at 109-12,116.
(297) Id. at 109-11.
(299) See, e.g., MARK SELTZER, SERIAL KILLERS: DEATH AND LIFE IN AMERICA'S WOUND CULTURE 89-104 (1998); KLAUS THEWELEIT, MALE FANTASIES, VOL. 1: WOMEN, FLOODS, BODIES, HISTORY (Stephen Conway et al. trans., 1987).
(300) See Sigmund Freud, Remembering, Repeating, and Working-Through, in THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD XII 150 (James Strachey ed., 1953-74); Jean Laplanche & J.B. Pontalis, Acting Out, in LANGUAGE OF PSYCHO-ANALYSIS 4-6 (Donald Nicholson-Smith trans., 1974); Alan Rowan, The Place of Acting Out in Psychoanalysis: From Freud to Lawan, PSYCHOANALYTISCHE PERSPECTIEVEN, Oct. 2000, 83.
(301) See Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021,2032-33 (1996) (offering a general discussion of the law's ability to change social norms).
(302) See WENDY BROWN, STATES OF INJURY 52-76 (1995).
(303) See BUTLER, BODIES THAT MATTER, supra note 118, at 10.
(304) 119 F.3d 563 (7th Cir. 1997), vacated sub note. City of Belleville v. Doe, 523 U.S. 1001 (1998) (remanding in light of Oncale).
(305) Id. at 566.
(307) Id. at 567.
(310) Doe, 119 F.3d at 567.
(316) Doe, 119 F.3d at 580-83.
(317) Id. at 580.
(318) Id. at 581-82.
(320) Id. at 580.
(321) As I noted above, this legal frame work will be developed at length in a separate article.
(322) 454 F.2d 234 (5th Cir. 1971).
(323) McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Tex. Dep't of Cnty. Affairs v. Burdine, 450 U.S. 248 (1981).
(324) Harris v. Forklift Sys., Inc., 510 U.S. 17,23 (1993).
(325) As Vicki Schultz has cautioned, understanding sex discrimination as operating through two paradigms of discrimination does not mean that a plaintiff's claim should be divided into separate disparate treatment and hostile environment claims. For one of the distinguishing features of the hostile environment claim is that, in contrast to the disparate treatment claim which centers on a tangible employment action such as hiring or firing an employee, the hostile environment claim aggregates a variety of workplace conduct to construct an overall environment. By necessity, then, the hostile environment claim cannot revolve around a single defendant's impermissible motives, but must center on the plaintiff's experience of the hostile environment as both subjectively and objectively hostile. It is therefore within the context of the overall hostile environment that sex-neutral conduct must be evaluated. Separating sex-neutral and sex-specific conduct directly violates the dictates of Harris to evaluate the hostile environment according to "all of the circumstances." See Harris v. Forklift Sys., Inc., 517 U.S. 17, 23 (1993). For exemplary analyses of the hostile environment that combine content-specific and content-neutral conduct, see Jackson v. Quanex Corp., 191 F.3d 647, 659-62 (6th Cir. 1999) (stating that Harris' directive to consider "all of the circumstances" entails evaluating race-neutral acts of intimidation and ridicule alongside race-specific ones); Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990) (instructing the trial judge to consider on remand "all of the incidents to see if they produce a work environment hostile and offensive to women of reasonable sensibilities," ranging from evidence of pornography and sexual objects displayed on desks to the disappearance of plaintiffs' work files, anonymous phone calls, and the destruction of their property).
(326) 119 F.3d 563,578.
CHRIS DIFFEE, B.A., 1993, University of North Carolina, Chapel Hill; Ph.D., 2001, University of California, Irvine; J.D., 2007, Stanford Law School. For perceptive comments and longstanding support regarding this project, I would like to thank Barbara Fried, Bob Weisberg, Rich Ford, Heather Love, Amanda Goodin, Lisa Kinney Helvin, Rob Stockman, Nolan Reichl, Dan Sharfstein, and most especially Teemu Ruskola and Melissa Sanchez.
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|Title Annotation:||III. The Political Economy of White Working-Class Masculinity through V. Coda: The Sex-Based Hostile Environment Claim, with footnotes, p. 339-377|
|Publication:||Columbia Journal of Gender and Law|
|Date:||Mar 22, 2013|
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