Ch. 3 Nonsubordination

1. Ch. 3 Nonsubordination “the personal is political” [dirty little secret: within communities organized around common affiliation]

2. Anita Faye Hill Testified Oct. 11, 1991. U.S. & around world “click.” Gave face to what many women experienced in silence, gave voice to them/us.

3. B. 1. Sexual Harassment (SH) in the Workplace pp. 246-52 • MacKinnon (‘79 & ‘87): it’s all about “sex” [0 else matters]. Rape, battery, prosti’n, poverty, pornography ignored b/c happen “almost exclusively to women.” bot. p. 245, not assigned • Abrams (‘89): 1) fear of sexual coercion; 2) marginalizing effect • Hébert(‘94): T-7 expert; it’s not about sex but economic domination. See especially in high positions, nontraditional jobs. (Strauss-Kahn & SH in IMF, widespread internal culture)

4. B. 1. Sexual Harassment in the Workplace pp. 246-52 • Abrams (Cornell ‘98) subtler … demand conformity to dominant feminine stereotypes outside workplace; “mere presence is not equal to influence or control” • Hmmm… pending NYC (class action?) suits v. brokerage houses, after-hours “bonding” events at stripclubs • Schultz (Yale ‘98) maintain most highly regarded jobsas masculine domains. Keyquestion: whether purpose or effect to undermine equal footing in workplace. N.B. Other work on “caregiving”

5. B. 1. Sexual Harassment in the Workplace pp. 246-52 • Franke (Stan. ‘97): SH as “technology of sexism,” system of gender norms, women & men as (hetero)sexual objects

6. B. 1. Sexual Harassment in the Workplace pp. 252-55 Harris v. Forklift Systems, Inc. (‘93) (locker room smut, supervisor’s sexual innuendos, constructive discharge) H: hostile workplace environment actionable under Title VII. Standard: conduct must be sufficiently severe/pervasive to create “objectively hostile or abusive environment” AND “subjectively perceive[d]” as such by π. Q: how is objective standard applied – reasonable woman? Or “reasonable person:? Q: Real world significance? (dirty jokes, etc.)

7. Rene v. MGM Grand Hotel, Inc. (9th ‘02)

8. Rene v. MGM Grand Hotel, Inc. (9th’02 en banc, 5-4!, cert. denied ‘03) • Gross factual allegations; co-worker behavior included sexual assault & batteries. Openly gay π (“light in loafers”?), fired from hotel butler position; wrongful discharge action. Alleged: “b/c of my sex, male.” • D. Ct. dismissed on summary jdgmt. (pre-Iqbal; now much easier to dismiss on pleadings) • I b/4 9th: whether • T-7 language: “because of sex” > courts split.

9. Rene v. MGM Grand Hotel, Inc. (9th ’02 en banc, 5-4!, cert. denied ‘03) • Oncale (‘98) : Some SCOTUS guidance, but parameters remain uncertain. (Gulf coast oil rig, married male π perceived as gay, violent sexual assault) Held, T-7 c/a for male on male SH. • 9th Cir. maj., held: c/a for use of forbidden criterion for disadvantageous difference in treatment b/c of sex discrimination. Π showed discrim’nin comparison to other men.P. 258

10. Text authors & Mary Ann Case p. 262 • 9th Cir. adopted theory of sex stereotyping, that men harass other men to enforce traditional heterosexual male gender role by encouraging stereotypical masculine behavior and punishing males who contaminate workplace with “taint of feminine passivity.” • N.B. Surprising dissenters (Schroeder & Nelson) Maj. “completely eliminates essential element of stat. “b/c of discrim’n” in 5 protected categories.

11. Line-drawing • When “unwelcome”? [proof needed] • When should employer be held vicariously liable for subordinate conduct? • Prevention policies: exercise in political correctness? Incest ban vs. true love exception? • Workplace realities, especially when demanding professional jobs. What other opportunities available???? LOL

12. Open questions • N. 2, p. 261: liability when “equal opportunity harasser”? (jerk to everyone?) 7th: No. • N. 3, p. 263: huge perception gap between men & women • N. 7, p. 267 Harassment Prevention Policies • N. 8, p. 270, Race + Sex, intersectionality