The Organization as a Gendered Entity: A Response to Professor Schultz's The Sanitized Workplace


THE ORGANIZATION AS A GENDERED
ENTITY: A RESPONSE TO PROFESSOR
SCHULTZ'S THE SANITIZED WORKPLACE

REBECCA K. LEE*

In the two decades since the Supreme Court first recognized the
legal harm of sex harassment' in Meritor Savings Bank v. Vinson,2 the
trajectory of sex harassment law and policy continues to be controversial,
even among gender scholars who seek to advance workplace equality but
disagree about how to accomplish this objective. In this piece, I wish to
contribute to the larger debate by offering a response to Professor Vicki
Schultz's provocative article, The Sanitized Workplace.3 Her project builds
upon her previous works on sex harassment 4 and the meaning of paid

* Practicing Attorney, Washington, D.C. J.D., Georgetown University Law Center;

M.P.P., John F. Kennedy School of Government, Harvard University; B.A., University of
Chicago. I am especially grateful to Robin West for giving me the inspiration and courage to
embark on this particular project, as well as thankful to Vicki Jackson for her illuminating
comments and ongoing encouragement, the participants in Georgetown Law Center's 2004
Feminist Legal Theory and Federal Courts seminars for their helpful feedback, and Therese
Leung and Marya Hill-Popper for their sociological expertise. I dedicate this Article to my
earliest mentors: the late sociologist Roger Gould, legal scholar Mary Becker, and political
scientist Lynn Sanders. I worked with Professor Vicki Schultz as her research assistant in
2001 and, despite our differing perspectives, I respect her scholarship and appreciate her
receptiveness to this paper.

1 I prefer to use the term "sex harassment" instead of "sexual harassment" to
highlight the point that harassment is a form of sex discrimination under Title VII (42 U.S.C.
§ 2000e-2(a)(1) (2000), the antidiscrimination statute that governs the workplace), whether
or not the harassment is rooted in sexual desire. See Oncale v. Sundowner Offshore Serv.,
Inc., 523 U.S. 75, 78-80 (1998) (referring to Title VII's proscription of discrimination
"because of... sex" and holding that harassment "need not be motivated by sexual desire").
I have used this term in my previous work on this subject. See Rebecca K. Lee, Pink, White,
and Blue: Class Assumptions in the Judicial Interpretations of Title VII Hostile Environment
Sex Harassment, 70 BROOK. L. REv. 677 (2005); see also Vicki Schultz, Reconceptualizing
Sex Harassment, 107 YALE L.J. 1683 (1998) (arguing for a broader understanding of sex
harassment to include harassing behavior that is nonsexual but nonetheless occurs due to
gender hostility in the workplace) [hereinafter Schultz, Reconceptualizing].

2477 U.S. 57 (1986).

3 Vicki Schultz, The Sanitized Workplace, 112 YALE L.J. 2061 (2003).

4 Schultz, Reconceptualizing, supra note 1.



Columbia Journal of Gender and Law

employment 5 to put forth an innovative argument with significant
implications in the areas of law, workplace culture, and organizational
theory. While I support her endeavor in its larger intent, I write this
response to examine her arguments and recommendations critically as well
as constructively in an effort to engage in the ongoing task of advancing
women's aspirations in the work organization and the labor market.

In The Sanitized Workplace, Schultz argues that the feminist
movement to address sex harassment in the workplace echoes the
ideological underpinnings of classical-management theory in that they both
advocate for an emotion-free workplace, without harmful distraction, to
maximize employee efficiency.6 She refers to a specific school of thought-
the "scientific method" promoted by Frederick Winslow Taylor-to assert
that the nascent organization was established as a rational space where
laborers focused on production with little or no personal interaction. 7 These
early laborers were male, and Schultz points to the later entry of women
into the workforce as introducing sexual elements into the workspace that
would disrupt the rationality of organizational life, presenting a dilemma for
managers who had sought to create an asexual work environment.8 As
Schultz sees it, feminist reformers in our modem era ended up resuscitating
the organizational practices of early bureaucratic leaders by similarly
pushing for a desexualized workplace. 9 In making this novel link between
classical-management theory and the anti-sex harassment movement,
Schultz is troubled by what she perceives to be unduly restrictive sex
harassment policies currently in place in many work settings that reflect
management's early inclination to suppress laborers' personal interactions
of all kinds.10 According to her, sexual behavior should be allowed to
openly flourish in the workplace, for she believes the freedom to express
oneself in sexual terms enhances one's social development at work and
improves one's productivity.' She therefore wants to counteract the recent

5 Vicki Schultz, Life's Work, 100 COLUM. L. REv. 1881 (2000) (arguing for the
right to paid work as the institutional core for equal citizenship, including gender equality)
[hereinafter Schultz, Life's Work].

6 Schultz, supra note 3, at 2064.

7 Id. at 2072-73.

8 Id. at 2074.

91d.

'0 Id. at 2164-66.

" Id. at 2166-67.

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push for a return to the nonsexual workplace that supposedly predominated
at the turn of the century.

In this work, I contest Schultz's argument that connects classical-
management theory to sex harassment law and policy. As I argue in Part I,
Schultz's characterization of the classical-management approach and its
dominance in the field is overstated, as is the seeming alliance between the
feminist movement and company management in shaping the workplace.
Moreover, contrary to her depiction of the nascent organization as asexual
due to its all-male labor force, I show that masculine sexuality thrives
whether or not women are present and is institutionally expressed through
sexually-oriented horseplay and customs. Understanding that sexuality is
never truly absent from the work institution, we can see that the entry of
women into the labor force and into the organization did not suddenly ignite
a sexual energy that was previously nonexistent. Instead, women merely
entered into the predetermined culture of the workplace and found
themselves harmed by the masculine style of sexuality that dominated their
work setting.

In Part II, I question Schultz's call for unrestricted sexual conduct
in the workplace-what I term a sexuality-privileged organizational
model-due to the probable harms that outweigh the possible benefits of
allowing sexuality to prosper in the work organization. In contrast to her
libertarian model, I defend the sexuality-constrained organizational
paradigm in light of concerns regarding the role of work, on-the-job
expectations, and larger workplace dynamics. Schultz is not uneasy about
open sexuality at work because she believes that it is organizational sex-
segregation that primarily gives rise to sex harassment. As a result, she
advocates for gender integration at all levels of the organization to address
sex harassment, recommending employer incentives in the form of
differentiated employer liability rules according to the existing proportion
of women in the organization. Gender integration is indeed a crucial
objective, but I further consider whether the courts are best suited to
implement her number-specific plan, as she suggests, by comparing the
strengths of judicial lawmaking versus both agency expertise and legislative
reform.

While Schultz's proposal for gender integration is important and
necessary, I assert in Part III that her structural prescription nonetheless
may be insufficient if we view the organization as an institution created and
fundamentally shaped by masculine norms. I challenge whether an increase
in the number of women alone will transform the work environment into an
egalitarian and a more welcoming space. A numerical balance in gender is
indisputably needed, but I hold that it is inadequate unless women, along

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with their male counterparts, also actively reconsider their organizational
cultures and traditions rather than continue, in their better positions of
influence, the disparate legacy that masculine notions of work culture have
imposed upon women (and gender-nonconforming men). To move toward
genuine organizational progress, I advance a framework for organizational
re-signaling and reformation by recommending certain steps that a
leadership committed to gender equality can take to revise institutional
norms and more vitally enhance the nature of women's work experiences.

I. SEXUALITY IN THE ORGANIZATION

In her latest work on sex harassment, Schultz describes the feminist
push to address sex harassment in the workplace as an anti-sexuality
campaign that she contends converges with early management's agenda to
cleanse the organization of personal elements that could distract workers
from their jobs. 12 Schultz asserts that along with the rise of the bureaucracy
at the turn of the century came the rise of professional managers who
espoused a rationality-dependent work ethic that separated emotions from
work to promote maximum efficiency and productivity.' 3 These managers
perceived the work organization as a place where rationality was to be
championed and human passions suppressed.14 Through the division of
work, they focused on applying their knowledge and expertise to map out
the goals of the organization, using workers to simply serve as the human
vehicles through which to implement them.' 5

Schultz argues by inference that classical-management theorists
must have also banned sexuality in the early bureaucracy since it would
disrupt the rationality of the organizational sphere and threaten the
organizational order.' 6 Understanding that sexuality is culturally
incompatible with the "passionless logic" of the organization, Schultz
concludes that early managers most likely tried to keep sexual elements
outside the company.

7

12 Id. at 2072-76.

'3 Id. at 2072-73.

14 Id. at 2072.

15 Id.

1
6 Id at 2073.

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The entrance of women into the labor force, however, created a
problem for managers who feared that women's presence in the workplace
would spark the sexual components they tried so hard to keep separate from
the organization. 8 Schultz argues that feminists, in advocating for women's
equality at work, adopted management's goal to rid the workplace of all
sexuality rather than push for a new conception of the workplace that would
embrace and celebrate sexuality.1 9 Thus, by pursuing the former strategy,
feminists sowed the seeds of the anti-sex harassment movement, which
sought to address and curb men's sexual behavior at work that hindered
women's opportunities for equal employment.20 This movement, led by
radical feminist lawyer and scholar Catharine MacKinnon, linked female
subordination at work with unwanted sexual advances and advocated for the
legal recognition of sex harassment as a form of sex discrimination.2z

Schultz's argument that feminists have aligned themselves with
management seems a bit odd because, even accepting her contention that
feminist reformers adopted an approach similar to the one embraced by
managers, their purposes for doing so clearly differ. Management sought to
improve overall employee productivity, whereas feminist reformers sought
to improve the working conditions of female employees. Viewed in this
way, Schultz actually sits on the same side as MacKinnon's camp, as both
are focused on worker rights in order to make the work environment a
better place where women and men have the same opportunities to flourish.
Recognizing then that Schultz and MacKinnon both share the same larger
aspiration, Schultz's suggestion that the goals of the feminist movement lie
on the managerial end of the workplace arena, far from aiming to protect
and enhance employees' well-being, seems peculiar. Instead, the difference
lies in their respective approaches to reaching the same employee-focused
objective, demonstrated by Schultz's proposal for a laissez-faire policy
regarding workplace relations in contrast to MacKinnon's more regulated
stance.

We should further recall that the larger feminist movement has
resisted and challenged the central force that rationality occupies in Western
thought and practice, which favors "masculine" reason over "feminine"

1Id. at 2074.

1 9 d. at 2074-75.

20 id.

21 Id. at 2079-80; see generally CATHARINE A. MACKINNON, SEXUAL HARASSMENT

OF WORKING WOMEN (1976).

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emotion. 22 As the oft-recited slogan indicates, the movement progressed
from the conviction that "the personal is political," and feminist organizers
and organization builders have encouraged group and organizational
cultures that draw out and re-channel expressions of emotion toward female
empowerment and socio-political change.

Schultz acknowledges that feminists are not usually characterized
as allies to company management, but suggests that their shared mission of
purifying the workplace of sexuality is not so strange in light of our
American work ethic that values the separation of work and sex.24 She
believes this work ethic stems from the organizational philosophy of early
management theorists who developed a new way of managing workers
during the emergence and rise of the bureaucracy at the turn of the
twentieth century. She highlights the management approach of Frederick
Winslow Taylor, the engineer who became well-known for his theory of
scientific management, as a prime example of this managerial method.26

Schultz makes particular reference to Taylor's method as representative of
classical-management theory and its related focus on rationality without
passion. Taylor's theory included the practice of "stopwatch time study," in
which work was disaggregated into simple steps, each of which was then
timed to determine the most efficient production rate.27 His approach also
included an "incentive wage" system, which paid different wage rates
according to the pace of production to motivate workers to produce output
within the time frame deemed efficient for the task.28 Schultz points to
Taylorism to assert that early organizational managers banned all things not
related to work, including all personal interactions that could slow down the
operations of the bureaucratic machine.

22 See, e.g., Verta Taylor, Bringing Emotions into the Study of Feminist
Organizations, in FEMINIST ORGANIZATIONS: HARVEST OF THE NEW WOMEN'S MOVEMENT

223, 227 (Myra Marx Ferree & Patricia Yancey Martin eds., 1995).

23 See id. at 228-32; see generally SARA EVANS, PERSONAL POLITICS: THE ROOTS OF

WOMEN'S LIBERATION IN THE CIVIL RIGHTS MOVEMENT & THE NEW LEFT (1980).

24 Schultz, supra note 3, at 2063.

25 Id. at 2064, 2072-73.

26 Id. at 2072-73.

27 DANIEL NELSON, FREDERICK W. TAYLOR AND THE RISE OF SCIENTIFIC

MANAGEMENT 39-41 (1980).

28 Id. at 42.

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A closer examination of Taylorism in actual practice, however,
reveals that Taylor did not in fact abandon all personal aspects in his
managerial style. Although exacting in form, he often demonstrated
sympathy when interacting with his workers, taking the time to listen to
their troubles. 29 As Taylor himself recognized, it was impracticable to
neglect laborers' human dimensions at work, undercutting Schultz's
emphasis on the entirely emotionless organization that Taylor supposedly
upheld and reinforced.

While Schultz is correct in that Taylor's shop-management
approach required its workers to function for the most part like robots at
work, Schultz's focus on Taylorism as the uncontested managerial
philosophy of its time is inaccurate. Although Taylor's scientific method
did become well-known and was replicated to varying extents by factory
managers, worker resistance remained an important obstacle to mass
implementation of his system, even causing Congress to investigate
Taylor's controversial practices.3 ° In short, Schultz overstates the impact of
Taylor and his approach, also overemphasizing contemporary
management's return to Taylor's "passionless" organizational ways and the
feminist movement's campaign to do the same.31

29 Id. at 39.

30 See THOMAS C. COCHRAN, AMERICAN BUSINESS IN THE TWENTIETH CENTURY 76

(1972); ROBERT KANIGEL, THE ONE BEST WAY: FREDERICK WINSLOW TAYLOR AND THE

ENIGMA OF EFFICIENCY 447-59 (1997). Further opposition to Taylor's method was
demonstrated by Congress' attention to his system when government arsenals and shipyards
began to seriously consider implementing the principles of scientific management. Id. at 448.
Government workers asked legislators to investigate the system of scientific management
which was alleged to harm "'the best interests of American workingmen."' Id. at 447-48.
Hearings were held by the House Labor Committee, during which the machinists' union
president declared that "'[t]he whole scheme of the [Taylor] system is to remove the head of
the workmen."' Id. at 448. Eventually, after a worker strike at a government arsenal, a
"Special Committee to Investigate the Taylor and Other Systems of Shop Management" was
authorized and created by Congress. Id. at 449-59. This Committee ultimately issued a report
criticizing Taylor's system for treating workers like machines but did not make any
legislative recommendations. Id. at 482-83.

31 Further, new schools of thought emerged in the decades after Taylorism,

including the study of industrial human relations, which expressly took into account human
behavior in organizational management and recognized that social factors are important and
unavoidable in all situations where people are engaged in a cooperative enterprise. See
generally, e.g., CHESTER I. BARNARD, THE FUNCTIONS OF THE EXECUTIVE (1948); RESEARCH

IN INDUSTRIAL HUMAN RELATIONS: A CRITICAL APPRAISAL (Conrad M. Arensberg et al. eds.,
1957); ELTON MAYO, THE HUMAN PROBLEMS OF AN INDUSTRIAL CIVILIZATION (1946); F. J.

ROETHLISBERGER & WILLIAM J. DICKSON, MANAGEMENT AND THE WORKER (1939); GORDON

S. WATKINS ET AL., THE MANAGEMENT OF PERSONNEL AND LABOR RELATIONS (1950).

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616 Columbia Journal of Gender and Law [Vol. 15:3

Schultz recognizes that human passions, including sexuality, cannot
be fully expelled from the organization, 32 thus weakening the notion that
sexuality was ever truly missing from the workplace, including in the early
all-male organization. Given that sexuality is a basic human force, as
Schultz also emphasizes, 33 sexual elements make their way into the
organizational space regardless of whether women are present or not. She
notes the presence of sexuality is not necessarily tied to the presence of
women, and yet seemingly accepts that the early organization was or could
have remained vacant of sexual features. 34 It is not surprising that instances
of sexuality can be found in all types of organizations, long before women
entered the workforce. Schultz, citing organizational theorists, suggests that
our culture believes men are able to curb their sexuality while women
unleash or exude it.35 All-male environments, however, certainly are not
devoid of sexuality simply because women are absent from them; on the
contrary, all-men settings commonly exhibit intra-gender, sexually
aggressive traditions. Consider, for instance, the masculine practice of
horseplay, within both work and other settings, much of which involves
highly sexualized behavior and language.36 Evidence of strong sexuality in
well-established, all-male institutions confirms that the presence of women
is not required to render an environment sexually charged.37 In the hostile
environment sex harassment context, women's entrance into the institution

32 Schultz, supra note 3, at 2068.

33 "In our culture, sexuality is seen as 'part of an animal nature-biologically or
psychodynamically driven, irrational, innate-that exists prior to (and is at war with)
civilization, society, and the forces that would repress or tame it."' Id. at 2073 (quoting
JAMES D. WOODS & JAY H. LUCAS, THE CORPORATE CLOSET: THE PROFESSIONAL LIVES OF

GAY MEN IN AMERICA 33 (1993)).

34 Id. at 2075, 2082 (referring to "the age-old Taylorist dream of a sexless
organization").

31 Id. at 2074.

36 See Joan Acker, Hierarchies, Jobs, Bodies: A Theory of Gendered

Organizations, in READER IN GENDER, WORK, AND ORGANIZATION 49, 56 (Ely et al. eds.,
2003) (highlighting the fact that all-male organizations have always involved homoerotic
behavior).

37 This Article focuses on the role of sexuality vis-A-vis women and men in the
hostile environment sex harassment context, but it is important to note that women's entry
into the organization did trigger a different type of harmful sexual activity--coerced sexual
relations in the form of quid pro quo sex harassment.



2006] The Organization as a Gendered Entity 617

altered the targeting of sexual expression, but their entry hardly introduced
it.

38

The organizational culture of the military is a case in point. Male
sexuality is widely infused into the combat culture in military units, as
soldiers have long participated in sexual joking and explicit conversation as
a way to forge personal closeness. 39 Even the Army leadership, believing
this kind of bonding enhances unit performance, has openly allowed and
endorsed sexually-oriented talk among its soldiers.40 During the 1970s, the
Army regularly featured in its official monthly magazine a picture of a pin-
up girl as part of this sexualized culture, 41 and male soldiers stationed
abroad could take part in officially sponsored trips to local red-light districts
as breaks from training.42 Training runs and marches provided further
opportunity for military commanders to reinforce images of aggressive,
masculine sexuality through the use of sexually graphic cadence calls.43

Sexuality, in essence, was deployed as a way to control the troops.44

Military schools, which are still heavily male-dominated, likewise
engage in and carry on traditions that are sexual in form. Despite being
legally forced to accept women in the early 1990s, the Citadel, a publicly
funded military academy, remains a nearly all-male institution, mainly
because female cadets have suffered at the hands of their male classmates.45

38 See KERRY SEGRAVE, THE SEXUAL HARASSMENT OF WOMEN IN THE WORKPLACE,

1600 TO 1993, at 63-64 (1994) (describing the sexual stories and jokes that male plant
workers shared during the Industrial Age in the early 1900s, as women entered these plants
in small numbers); see also BARBARA A. GUTEK, SEX AND THE WORKPLACE 167 (1985) ("A
work environment numerically dominated by men will be characterized by a sexual
ambience and the expression of male sexuality. . . . When a woman enters such an
environment, she becomes the target of much of the 'floating sexuality' already present.").

3 9 LINDA BIRD FRANCKE, GROUND ZERO: THE GENDER WARS IN THE MILITARY 156-
57(1997).

40 Fred L. Borch III, Military Law and the Treatment of Women Soldiers: Sexual

Harassment and Fraternization in the US Army, in A SOLDIER AND A WOMAN: SEXUAL

INTEGRATION IN THE MILITARY 337, 337 (Gerard J. DeGroot & Corinna Peniston-Bird eds.,
2000).

41 id

42 Id.

43 FRANCKE, supra note 39, at 161-63.

44 See MELISSA S. HERBERT, CAMOUFLAGE ISN'T ONLY FOR COMBAT: GENDER,

SEXUALITY, AND WOMEN IN THE MILITARY 64 (1998).

45 SUSAN FALUDI, STIFFED: THE BETRAYAL OF THE AMERICAN MAN 116-20 (1999).



Columbia Journal of Gender and Law

Many of the traditions at this school are sexualized, such as the daily
communal shower; "Senior Rip-Off Day," where senior cadets tear off one
another's clothing, throw the clothes into a bonfire, and tumble and
embrace on the ground; and the birthday tradition, which involves stripping
the birthday cadet, tying him to a chair, and coating him with shaving
cream. 46 Pictures of cadets casually participating in various forms of
intimate behavior with one another, including many instances of hugging
and kissing, abound in the school's yearbook.47 The Citadel serves as an
example of how sexuality figures significantly into the culture of an austere
and hierarchical male-occupied institution where order and discipline are
valued. Military customs are "driven by a group dynamic centered around
male perceptions and sensibilities, male psychology and power, male
anxieties and the affirmation of masculinity, ' '48 all of which contribute to an
open and explicit sexual culture among servicemen.

Other examples of all-male (or nearly all-male) sites with highly
sexualized cultures include fire departments, where sexual pin-ups in
lockers and sexual banter are regular sights and sounds,4 9 and prisons,
where rape and sexual aggression by male inmates as well as by male
correctional officers are rampant and routine.50 The sexually-oriented rituals
and conventions that blatantly exist in these institutions demonstrate the
ways in which sexual expressions frequently pervade men-only
environments, contradicting Schultz's claim that the emerging organization
was sexuality-free because it was entirely male-occupied. Men are sexual
beings whether or not women are in their company, and thus it is inaccurate
to suggest that women's entry into the work environment triggered a sexual
energy that was allegedly latent or nonexistent in male-only settings.
Instead, women's entrance into the workplace unleashed hostile behavior
against them that commonly was sexual in character and form. At the

461d. at 131.

47 Id.

48 FRANCKE, supra note 39, at 152 (discussing the masculine group culture of the

military and its role in creating a harassing atmosphere for women).

49 See CAROL CHETKOVICH, REAL HEAT: GENDER AND RACE IN THE URBAN FIRE

SERVICE 76-77 (1997).

50 See, e.g., James E. Robertson, A Clean Heart and An Empty Head: The Supreme

Court and Sexual Terrorism in Prison, 81 N.C. L. REV. 433 (2003) (describing the male-on-
male sexual aggressions that regularly take place in prison); J. C. Oleson, The Punitive
Coma, 90 CAL. L. REV. 829, 856-58 (2002) (citing studies reporting the frequency of coerced
sexual encounters in prisons by male inmates and correctional officers).

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The Organization as a Gendered Entity

Citadel, for example, female professors who joined the faculty endured
lewd phone calls and obscene pictures and notes from men on campus. 51

Women who joined male institutions stepped into a predetermined
workplace culture that was originally male-occupied and thus male-
identified. Consequently, women found themselves harmed by male sexual
demands that dominated their working space, harms that were eventually
recognized as the legal injury of sex harassment.52

Many hostile environment cases show that sex harassment can
result from sexual motives, 53 but sexual design is not a necessary
precondition to render a charge viable under Title VII. As the Supreme
Court held in Oncale v. Sundowner Offshore Services, Inc., 5 4 sex
harassment need not arise out of sexual desire; rather, it only must be
"because of sex." 55 In this vein, Schultz has brilliantly pointed out in an
earlier work that harassment is also used to conserve traditional spheres of
male labor by undermining women's confidence and equal footing on the
job and sabotaging their work performance.56 Sex harassment is perpetrated
along a range of gender-hostile discriminatory actions, including both
sexualized and nonsexualized harassment, to prevent women from thriving
and claiming a permanent place in male-dominated workplaces. Our
attention to nonsexual forms of harassment, however, should not eclipse our
awareness of sexual forms of harassment that have been and continue to be
inflicted on many female (and male) workers. Against this backdrop, I next
consider whether unrestrained sexuality at work is a beneficial policy.

51 Faludi, supra note 45, at 117.

52 See generally MACKNNON, supra note 2 1.

53 See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (describing how a
male superior propositioned a female employee for a sexual relationship); Harris v. Forklift
Sys., Inc., 510 U.S. 17 (1993) (involving a male company president who directed sexually-
oriented comments to a female employee); Faragher v. City of Boca Raton, 524 U.S. 775
(1998) (depicting a work environment in which male supervisors subjected female
subordinates to sexual touching and remarks); Burlington Indus., Inc. v. Ellerth, 524 U.S.
742 (1998) (depicting a male supervisor who suggested that a female subordinate's job
depended upon her acquiescence to his sexually-oriented behavior).

54 523 U.S. 75 (1998).

55 Id. at 80-81.

56 See generally Schultz, Reconceptualizing, supra note I (arguing that the
"sexual-desire paradigm" of sex harassment is under-inclusive and instead offering her
wider-ranging "competence-centered paradigm" to show that much harassment is targeted to
prevent women from effectively performing their jobs).

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II. MAPPING THE LINKS: SEXUALITY, SEX HARASSMENT,
AND SEX SEGREGATION

Schultz argues that the current sex harassment movement is
basically a movement to eradicate sexuality from the workplace that goes
beyond what is legally required to address sex harassment. 57 She contends
the legal focus on sexual conduct encourages organizations to shield
themselves from liability by being over-cautious and prohibiting all forms
of sexuality. 8 She finds the strict spotlight on sexual conduct problematic
because it narrowly views sex harassment as sexually-defined rather than
gender-grounded, when in fact she believes that harassment is largely
perpetrated through nonsexual ways that try to portray women as
incompetent on the job.59 In her view, Human Resources (HR) managers of
today are following in the footsteps of their managerial predecessors by
attempting to stamp out sexuality from the workplace, now equipped with
feminist arguments for such restrictive policies.6°

Schultz points to empirical evidence, which she concedes is not
entirely conclusive, to show that HR professionals define actions such as
"sexual jokes, remarks, and teasing" as types of harassment, although this
behavior on its own does not constitute harassment that is actionable under
the law.61 While isolated occurrences of this behavior may not amount to a
hostile work environment under the current legal standard, such behavior
likely would establish an actionable hostile environment if it frequently
recurred over time or was coupled with other gender-biased behavior. In a
hostile environment situation, it is important to look at the totality of
factors, as the Supreme Court recognized in Harris v. Forklift Systems,
Inc.,62 rather than only individual episodes of harassment, because it is the

57 Schultz, supra note 3, at 2087.

58 Id. at 2088-89.

" Id. at 2075-76, 2087.

'0 Id. at 2089.

61 Id. at 2094-96; see Soc'Y FOR HUMAN RES. MGMT., SEXUAL HARASSMENT

SURVEY 4, 7, 11 (1999) (conduct listed in survey was all sexual in nature).

62 510 U.S. 17 (1993). Currently, hostile environment sex harassment is actionable

under Title VII if: (1) the conduct is "severe or pervasive enough to create an objectively
hostile or abusive work environment-an environment that a reasonable person would find
hostile or abusive," and (2) the plaintiff "subjectively perceive[s] the environment to be
abusive," with no requirement that the plaintiff demonstrate psychological injury. Id. at 21-
23.

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working environment that must be abusive, and as such necessarily involves
a diffuse but ubiquitous harmful atmosphere in which many female workers
are forced to work. Hostile environment sex harassment is more prevalent
than quid pro quo harassment, 63 an unsurprising statistic considering the
latter is a palpable form of harassment that is easier to curb.

Schultz argues that personnel managers are overly restraining
employees' sexual conduct by implementing overbroad policies, but
policies that reach beyond what the law requires are not necessarily
unfavorable if we view the law as providing only the minimum level of
legal protection from harassment. Antidiscrimination laws, we should hope,
do not limit all that we seek to achieve in improving workplace relations,
and sex harassment law as currently understood should not prevent society
from achieving a higher degree of mutual respect in all work organizations.
Just as race discrimination law has helped bring about a greater awareness
of both the obvious and subtle harms of racial prejudice, sex discrimination
law-including sex harassment law-has brought about a greater
understanding of the apparent and not-so-apparent abuses in gender
relations. As a survey report put out by the U.S. Merit Systems Protection
Board (MSPB), the federal agency charged to examine the incidence of sex
harassment among federal employees, explains,

focusing exclusively on sexual harassment so extreme as to meet
a legal test was never the aim of the Government's information
and prevention programs. In confronting the issue of sexual
harassment, the Federal Government is interested not only in
avoiding situations in which a court would find a violation of
law, but also in preventing the creation of an unpleasant,
unproductive work atmosphere. 64

In line with this perspective, the legal standard simply lies on one particular
end on the scale of harassing behavior, and we should endeavor to foster a
more respectful work environment beyond what the law only requires.

63 See Ann Juliano & Steward J. Schwab, The Sweep of Sexual Harassment Cases,

86 CORNELL L. REv. 548, 565 (2001). Quid pro quo harassment involves a supervisor's
demand for sexual relations that has direct or indirect economic or employment
consequences. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-65 (1986). See also
MACKINNON, supra note 2 1, at 32-40.

64 U.S. MERIT SYS. PROT. BD., SEXUAL HARASSMENT IN THE FEDERAL WORKPLACE:
TRENDS, PROGRESS, CONTINUING CHALLENGES 3 (Oct. 1995), available at
http://www.mspb.gov/studies/sexhar.pdf [hereinafter SEXUAL HARASSMENT IN THE FEDERAL

WORKPLACE].

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A. Promoting Cultural Sensitivity at Work

A large part of the debate, however, perhaps centers more on
whether allowing open sexuality at work is a positive social objective,
rather than on whether sex harassment policies should extend further than
the law's narrow mandates. In addition to the sexual jokes and conversation
that are being curtailed, Schultz is concerned about the limits on consensual
romantic relationships that are being implemented through contemporary
HR policies.65 She points to the "zero-tolerance" approach adopted by some
HR consultants-an approach that strongly dissuades employers from
allowing their employees to engage in sexual or intimate behavior-and
also notes the "no-dating policy" between supervisors and subordinates that
may extend to relationships between coworkers as well. 66

Schultz also describes what she calls the "cultural sensitivity"
stance, which she maintains deviates from the zero-tolerance approach only
in grades.67 The sensitivity model recommends that supervisors and
employees self-monitor their behavior and be prepared to cease any
sexually-oriented conduct if they sense that their actions may have insulted
another party.68 This policy focuses on the effect of an individual's conduct
on another person, rather than on intent, in determining the welcomeness of
the behavior, and recommends that all employees take note of both verbal
and nonverbal signs in interpreting the impact of their conduct.69 While
advocates of this perspective do not necessarily urge all consensual and
intimate relationships in the workplace be prohibited, they warn that sexual
involvement between employees and their supervisors are ill-advised, if not
improper, and suggest that such relations between coworkers also can be
difficult.70

Although Schultz believes the zero-tolerance and cultural-
sensitivity approaches are more similar than different,7" the latter is
considerably less constraining as well as substantially more important in

65 Schultz, supra note 3, at 2092.

66 Id. at 2099-101.

671 Id. at 2101.

68 Id.

691 Id. at 2102.

70 Id. at 2103.

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promoting self-awareness at work by encouraging employees to think about
how others may be seriously affected by their indiscreet, even if
unintended, actions. The sensitivity approach, unlike the zero-tolerance
stance, does not automatically ban consensual coworker relationships, or
even supervisor-subordinate relationships, but highlights the concerns
employees should consider in deciding whether to enter such relations.

Admittedly, the zero-tolerance approach may be overly severe in
that an outright prohibition on all consensual relationships between
colleagues may not be needed, and may not even be practical. Accordingly,
as Schultz's own empirical research shows, HR experts recommend a less
strict approach when it comes to consensual coworker relationships. 72 The
cultural-sensitivity perspective, on the other hand, is preferable to a no-
sensitivity policy because the former recognizes that sexual conduct in the
workplace can be harmful due to the still uneven gender relations that
operate between women and men at work and in larger society. This
approach emphasizes the importance of evaluating and calibrating our
conduct in empathetic response to how an individual who is vulnerably
situated might be injured by our actions. Further, this approach does not
forbid all forms and degrees of sexual behavior at work, but provides
reasons to keep such behavior in check because of the likely abuses that it
can inflict on others. Some may be quick to dismiss the cultural-sensitivity
model as simply a politically correct approach, but rejecting certain ideas or
conduct by labeling it as "PC" only amounts to a hasty response that resists
looking more deeply at the problem by stepping out of one's comfortable
position to consider the less comfortable situation of another. Each
individual should strive to understand the perspective of another, taking into
account how her perspective is shaped by her identity and experience in a
world that still remains largely unequal. The cultural-sensitivity approach
seeks to promote this type of positive interpersonal understanding with the
potential to reduce harassment and other forms of discriminatory behavior.

Schultz makes an eloquent appeal for viewing work as a site of
important personal and social development for many people, emphasizing
that such development is beneficial and hence should be encouraged.73 I do
not disagree with this worthy sentiment, but argue that the sexuality-
constrained model does not take away from social engagement at work.

72 Id. at 2101-03. Moreover, workplace resource manuals put out by consultants do

not necessarily advocate implementing a ban on all sexual behavior or relationships at work.
See, e.g., ANNE C. LEVY & MICHELE A. PALUDI, WORKPLACE SEXUAL HARASSMENT 91-101
(2d ed. 2002).

73 Schultz, supra note 3, at 2164-65.

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Columbia Journal of Gender and Law

Allowing sexual energy to reign freely in the workplace is problematic
because of the consequential harms that sexually-laden conduct currently
has on many women in particular and on employees in general within the
work setting. Granted, sexuality at work is not per se harmful, and sexuality
can very well grow as a valuable dynamic between individuals at work
under certain circumstances. At the same time, Schultz's laissez-faire
recommendation is premature at best because we do not yet live in a fully
egalitarian society where most women have been able to significantly
remake their organizational cultures. Until we get closer to that point, I
argue that unregulated sexuality at work is still too dangerous and risky a
proposition. But rather than adopt an all-sexuality or no-sexuality stance, a
practical middle ground will strive to take into account the good and bad
reality of allowing sexuality to prosper in the workplace. Toward this end,
the cultural-sensitivity approach aims to address these concerns, and should
be accompanied by organization-wide sensitivity training to promote a
better understanding of interpersonal workplace dynamics and encourage
positive dialogue and reflection.

Schultz posits that viewing unconstrained sexual behavior as
sexually offensive can lead to sex harassment claims against minority
groups stereotypically labeled as hypersexual, including nonwhite and gay
employees.74 For example, sexual teasing that white employees might be
willing to entertain from their also white colleagues may be unwelcome
when it comes from minority coworkers.75 To illustrate, she refers to a
study in which white, female waiters remarked that they did not mind when
their fellow white, male waiters joked with them in a sexual way, unlike
when the kitchen cooks and busing staff, comprised of Mexican men, tried
to engage in similar sexual gestures; the female waiters construed the
behavior of the latter as sexually harassing.76 Thus, Schultz concludes the
racial identity and occupational position of the minority staff may have
principally contributed to the white, female waiters' labeling of this
behavior as sex harassment.77

Similarly, she notes sexual conduct on the part of openly gay
coworkers also may be seen as sex harassment by heterosexual colleagues. 78

74 Id. at 2158-63.

71 See id. at 2159-60.

76 id.

77 Id. at 2160.

78/d.

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Straight men and women who might otherwise engage in sexual banter with
other straight, same-sex coworkers may be offended when the same sexual
teasing comes from homosexual, same-sex coworkers due to the
exaggerated notion of gays and lesbians as being hypersexed.' 9 Simply
allowing sexuality at work, however, will not eradicate retaliation against
minority and openly gay employees because the discriminatory attitudes of
some unfortunately will persist regardless of the larger sexual culture. Even
under Schultz's sexuality-privileged model, people of color and sexual
minorities will not necessarily be able to engage equally in sexually-open
conduct without risk of harassment complaints being lodged against them.
Thus, the sexuality-privileged model would likely serve to privilege the
behavior of heterosexual employees, as we can imagine that those who hold
prejudicial views will continue to find sexual overtures from minority or
gay coworkers offensive or unwanted. It would be more productive in these
cases for HR administrators to squarely address the possibility of uneven
accusations of sex harassment being leveled against people of color and
against sexual minorities. A reflective workplace culture that takes into
account people's varied and nondiscriminatory tastes with respect to sexual
humor at work is a better calibrated approach than an all-or-nothing
perspective.

B. Preserving Security and Stability on the Job

Perceptions of unfairness or conflicts of interest in the workplace
should be carefully considered when contemplating consensual
relationships at work, even if such relations are permitted. Consensual
supervisor-subordinate relations pose a special kind of difficulty that stems
from the difference in power, which affects the subordinate involved as well
as other colleagues.80 These relationships are especially tricky because other
employees not involved in the relationship can be nonetheless affected by it
if they believe the amorous subordinate is receiving preferential job
treatment.81 The perception of special treatment can spur a harassment
complaint against the supervisor if a neglected bystander-employee feels
that she was denied opportunities at work because she was not romantically

'9 See id. at 2160-61.

80 See Gary M. Kramer, Limited License to Fish Off the Company Pier: Toward

Express Employer Policies on Supervisor-Subordinate Fraternization, 22 W. NEW ENG. L.
REv. 77, 81-84 (2000).

81 Schultz, supra note 3, at 2121; see also Timothy S. Bland, Romance in the

Workplace, FED. LAW., July 2001, at 38.

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626 Columbia Journal of Gender and Law [Vol. 15:3

involved with the decision-maker.82 Aside from the dissatisfied coworker,
problems can and frequently do flare up if the supervisor-subordinate
relationship comes to an end, as the supervisor can be accused of
harassment if the subordinate consented to the relationship for work-related
perks, or if the supervisor tries to reignite the relationship or decides to
reassign the subordinate.83 All of these reasons may counsel against
permitting this type of cross-power relationships.

Since perceptions of favoritism have both real and anticipated
effects on the attitudes and behaviors of others in the work setting, such
perceptions should be neither easily ignored nor dismissed. 4 Both the
organizational setting and the chain of command are exactly what create the
difference in power between the would-be lovers, and adding sexual
intimacy against this predetermined, hierarchical backdrop is complicated.
Additionally, women continue to be relatively less powerful in
contemporary organizations, where men by and large still occupy top
positions of power and authority, and women are judged more harshly than
their male paramours.85 The intersection of power dynamics with respect to
work status as well as gender renders supervisor-subordinate relationships a
matter of concern.

82 Schultz, supra note 3, at 2121; see also Miller v. Dep't of Corr., 30 Cal. Rptr. 3d

797, 814-16 (Cal. 2005) (holding that, under California's Fair Employment and Housing
Act, widespread favoritism in the workplace based on consensual supervisor-subordinate
sexual affairs can constitute a hostile work environment, and a plaintiff employee may bring
a sex harassment claim on this basis regardless of whether any harassing behavior was
directed at her). The plaintiffs in this case were two female prison employees who alleged
that the favoritism resulting from the prison warden's widely-known consensual
relationships with several female subordinates created a hostile environment. Id. at 801. In
explaining its ruling, the court found support in the EEOC's policy guidance on the issue of
sexual favoritism under Title VII. Id. at 811-13. Rejecting the employer's argument that
private, consensual relationships should be left unregulated, the court stated that the law
addresses "not the relationship, but its effect on the workplace" where sexual favoritism
occurs frequently. Id. at 818.

83 Schultz, supra note 3, at 2122; see also Kramer, supra note 80, at 87-91.

84 Schultz notes that employee favoritism also can result from nonsexual

fraternization between supervisors and supervisees and among coworkers, where women are
often excluded from male-oriented social activities and hence lose out on this important
aspect of informal job networking. Schultz, supra note 3, at 2189. To address this type of
social bonding and favoritism, whether conscious or unconscious, the best remedy is likely
to be what Schultz recommends: integrating women fully at all levels of the work
organization to allow for different socializing opportunities at work.

85 See Kramer, supra note 80, at 83 ("[A]n apparent double standard often views

women participants in [power-differentiated] relationships more negatively than the men.").



The Organization as a Gendered Entity

In some cases, relationships across ranks may prove to be worth
pursuing for the individuals involved, even after weighing such
considerations. For instance, Professor Robin West argues that welcome
sexual relations between individuals of different rank should be understood
differently from unwanted sexual conduct that is at the core of sex
harassment if we consider the different type of harms that each may bring
about. 6 She maintains that unwanted and unwelcome sexual relationships
are harmful in that they damage women's dignity and self-understanding as
persons with their own preferences for what they experience as sexually
desirable and as physically painful.8 7 On the other hand, West asserts that
wanted and welcome sexual relationships between unequal parties do not
create the same particular harm described above because, in these
situations, the woman is actually indulging in her own pleasures and
desires, rather than catering to that of another without regard to, or at the
expense of, her own.88 She does not suggest that no harm flows from such
relationships, and fully recognizes that these relationships can be quite
injurious-but injurious for reasons outside of what should be viewed as

89sex harassment, which is essentially about unwelcome sexual advances.
Although the harm stemming from a welcome relationship between

differently positioned individuals may be uncertain and less obvious,
talking about such relationships in the context of work presents a particular
set of issues as the workplace is an important site of economic
dependency. 90 In addition to the possible exploitation of those involved in
the relationship, others in the work environment may experience negative
effects because their sense of fairness on the job is undermined and their
sense of security destabilized. 9 1 Employees' ambitions and future plans with
respect to the specific employer (as well as other employers) may also be

86 Robin West, Unwelcome Sex: Toward A Harm-Based Analysis, in DIRECTIONS

IN SEXUAL HARASSMENT LAW 138-52 (Catharine A. MacKinnon & Reva B. Siegel eds.,
2003).

87 1d. at 144.

88 ld. at 145.
89 Id. at 145-51.

90 See Mark Berger, Unjust Dismissal and the Contingent Worker: Restructuring
Doctrine for the Restructured Employee, 16 YALE L. & POL'Y REV. 1, 22 (1997) (noting the
importance of employment security and economic dependency of employees on their jobs).

91 See Margarita Bauza, Cupid and the Cubicle: Office Romances Increase,

CONTRA COSTA TIMES (Walnut Creek, CA), Aug. 3, 2005, at F4.

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Columbia Journal of Gender and Law

negatively altered, and it should not be assumed that most people can easily
change jobs, or that the burden should automatically fall on them to do so. 92

The arguments against consensual supervisor-subordinate
relationships may not apply as strongly in the case of similarly positioned
colleagues who wish to willingly initiate a romantic relationship, and
accordingly HR personnel are not as strict about limiting the latter type of
liaisons.93 Although Schultz concedes that most organizations do not
completely proscribe all kinds of intimate relations at the workplace, she
remains uneasy about stifling sexuality at work.94 For one thing, she is
concerned that individuals will not be able to find sexual mates outside of
work, especially in our modern economy where people put in long hours at

95their jobs. But employees surely have a sense that mixing work with sex
or love can be difficult, regardless of the type of fraternization policy in
place.96 And many people may prefer to keep their romantic lives private
and separate from the workplace to avoid being the subject of gossip or to
avoid having attention to their work compromised. 97

Another drawback to coworker relations, albeit a less compelling
consideration, is reduced productivity. Unlike what Schultz maintains,
decreased focus at work can result from open sexual behavior in the
workplace: romantically-involved coworkers can become less focused at
work because they cannot leave their relationship highs and lows outside of
the work setting.98 Rather than try to mix all aspects of our lives with work
at the workplace, we as a society should instead aim to spend less time at
work so that we can share moments with our loved ones, engage in public
service, and pursue personal interests and other valuable endeavors outside
of work. In her earlier piece on the value of paid work in promoting equal

92 See Cindy M. Schaefer & Thomas R. Tudor, Managing Workplace Romances,

SAM ADVANCED MGMT. J., Summer 2001, at 4.

93 Schultz, supra note 3, at 2125; see also Schaefer & Tudor, supra note 92.

94 Schultz, supra note 3, at 2130-31.

95 Id. at 2165-66.

96 See, e.g., Risa Brim, Complexities of Corporate Couples: Office Dating,

Marriage Have Their Own Set of Issues, But It Does Work Out for Some Pairs, SAN DIEGO
UNION-TRIB., Feb. 25, 2002, at E9.

9' See id.

98 See Cynthia Billhartz, Office Romance: What's A Company To Do When Water-

Cooler Chats Turn into Pillow Talk?, ST. Louis POST-DISPATCH, Apr. 3, 2005, at El; see
also Schaefer & Tudor, supra note 92.

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citizenship, Schultz agrees that American workers currently log in too many
hours at their jobs and consequently advocates for legislative amendments
to decrease the standard workweek for full-time employees to facilitate a
new work-family-life balance for both women and men. 99 Even as Schultz
believes that people should not expend all of their energies at work, she
nevertheless insists that people should be encouraged to incorporate the full
range of human experiences at work, including expressions of sexuality, to
create a workplace that embraces both emotionality and sexuality.100 I share
her vision of a modified work model consisting of fewer hours and also
support policy changes to restructure today's work requirements and
expectations. While I do not seek to suppress all human attributes in the
work environment, I nonetheless do not believe we need or should seek to
satisfy all of our human impulses at work, particularly sexual impulses,
given the fragile dynamics that make up the workplace.

C. The Meaning of Work

Schultz's view of work is a substantively appealing one and is
worth considering more fully. As she has elaborated in her previous writing
on this subject, work has transformative effects on individuals who find
meaning and a sense of agency in their daily labors when they are allowed
to pursue paid work opportunities without hindrance.' 0' She stresses that
one's work acutely frames one's identity, noting that people frequently
describe who they are according to their particular work or vocation. 02

Work is fundamentally important on both a day-to-day and lifelong level,
Schultz explains, because people need projects to sustain and engage them
over the long-term that gives them a sense of leaving their mark on the
larger world. 0 3 In The Sanitized Workplace, she continues to expound upon
the value of work in people's lives, focusing on the interpersonal aspects of

99 See Schultz, Life's Work, supra note 5, at 1956-57 (positing that a reduced full-
time workweek will help redistribute paid jobs for everyone and in this way will promote
equal citizenship based on a foundation of paid work).

100 Id. at 1958-59; see also Schultz, supra note 3, at 2165-67.

101 Schultz, Life's Work, supra note 5, at 1891-92.

102 Id. at 1892.

103 Id. at 1928.

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630 Columbia Journal of Gender and Law [Vol. 15:3

working alongside others in pursuit of shared goals and forging meaningful
ties along the way.10 4 As she puts it,

[w]ork isn't just a way to make a living; it's a way to create
something of value, to struggle with our capacities and limits, to
make friends and form intimate relationships, to contribute to our
communities, to leave our imprint on the world, and to know
ourselves and others in the way that humans can only be known
through struggle and (sometimes) success. . . . Even for those
who aren't fortunate enough to hold jobs that can foster self-
realization, work remains vitally important to how they
understand life."'10 5

Schultz argues that work engenders an intensity and intimacy among fellow
colleagues that should be allowed to flourish whether or not this connection
is fueled by an erotic energy. 0 6 In light of the value she assigns to paid
work, Schultz envisions a workplace where people's human expressions
and interaction complement what they do at work, and affirmatively
includes sexuality to the mix of what can deepen the work experience.' 0 7

Work indeed figures prominently into people's daily lives and into
their individual aspirations, offering meaning and a sense of order that come
with work's routine and related expectations. People depend on work in
terms of availability, opportunity, pay, and advancement, and this is
precisely why working conditions should remain dispassionate, even if the
substance or purpose of the work is not. The dispassionate work structure is
what allows the passionate worker to fully pursue her projects without
worry that a free-for-all work environment will disrupt her community
relations and her steady and earned claim to her chosen work. Schultz's
vision of a sexuality-privileged workplace is, unsurprisingly, quite
seductive, but herein lies the danger: allowing sexual conduct to thrive with
few boundaries in the workplace can harm employees by disturbing their
working conditions and threatening their ability to flourish or even stay on
the job-paradoxically upsetting the continuous stability and purpose that
work was intended to provide and sustain.

104 Schultz, supra note 3, at 2164.

105 Id.

116 Id. at 2165-67.

107 id.



The Organization as a Gendered Entity

Further, individuals who find greater-than-average satisfaction in
their work should not have to worry about unchecked sexual tendencies or
unconsidered conflicts of interest in the workplace hampering their
ambitions or goals. Schultz believes that anti-harassment policies operate to
hinder even the formation of close, nonsexual associations.' ° But a
comprehensive survey of federal employees regarding their views on sex
harassment over sequential time periods indicates that women and men are
increasingly seeing eye-to-eye about the kinds of conduct that amount to
harassment.109 In light of the heightened awareness around sex harassment,
the most recent survey found that "[o]nly 18 percent of men and 6 percent
of women respondents agreed that fear of being accused of sexual
harassment had made their organizations uncomfortable places to work."' 10

According to the results of this study, the sexuality-constrained model
currently in place in federal worksites is not causing significantly awkward
or diluted workplace relations as Schultz fears. Where there is a common
understanding of what constitutes nondiscriminatory and appropriate
workplace behavior, women and men work well together. Any kind of
social awareness campaign can provoke resistance among some, but
backlash is not an uncommon response to a movement for social change. I1

The degree of backlash is indicative of how deeply entrenched some group
attitudes are, and how much additional effort will be needed to bring about
actual and long-lasting reformation. Unlike Schultz, I believe curbing
unwanted sexual behavior on the job can lead to more secure friendships
and social relations in the workplace. Implementation of carefully calibrated
workplace policies will foster egalitarian and comfortable interactions, in
terms of both peer and mentoring relationships, thereby creating a trusting
and relaxed environment for all workers.

Although work can be about more than earning a livelihood, many
people work for practical rather than romanticized reasons, particularly

' Id. at 2166-67.

109 SEXUAL HARASSMENT IN THE FEDERAL WORKPLACE, supra note 64, at 5.

"0 Id. at9.

111 See, e.g., Reva B. Siegel, She the People: The Nineteenth Amendment, Sex
Equality, Federalism, and the Family, 115 HARV. L. REV. 947, 1009 (2002) ("[A]s is often
the case, moments of major social reform precipitate diverse forms of containment and
backlash.").

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Columbia Journal of Gender and Law

where the job offers minimal intrinsic satisfaction. 12 Schultz rightfully
urges us to recognize that all types of work are valuable, including low-
status and low-pay work, and to respect all workers for their labors.1 13 But
even in accepting this positive outlook, I doubt the majority of people
would label what they do for wages or salary as a true calling or something
akin to it.1 14 In focusing primarily on compensated work, Schultz neglects
the importance that volunteer or unpaid work may hold for a number of
individuals. Some people may not value what they do at their official place
of work as contributing to their highest sense of self and community.115

They engage in paid work because they are expected to and need to earn a
living, and would likely point to something else-for instance productive
hobbies, community work, or family relationships-that more meaningfully
defines for them who they are and how they would like to be known by
others. 116 This is not to say people do not self-identify at all with the work
they perform for wages-they do, as Schultz accurately points out. But they
may not self-identify with their paid jobs in the all-encompassing fashion
that she asserts. Schultz distinguishes paid work from unpaid activities by
noting the greater clout and esteem conferred on the paid worker when
compared to her unpaid counterpart in our market-based society.1 7 It is true
that wage work is valued in large part for this reason and should be
available for everyone to claim, but this does not rule out the importance of

112 See generally KATHERINE S. NEWMAN, No SHAME IN MY GAME: THE WORKING

POOR IN THE INNER CITY (1999) (describing the job-related experiences and motivations of
fast-food workers in the inner city).

113 Schultz, Life's Work, supra note 5, at 1943-44. Schultz also highlights the
dignity, structure, and social interactions that benefit the working poor through their low-
wage work. Id.

114 See, e.g., Deborah L. Rhode, Balanced Lives, 102 COLUM. L. REV. 834, 836

(2002) (commenting that individuals may find their most fulfilling work outside of their paid
jobs, noting for example that Wallace Stevens and T.S. Eliot are both known for their poetry
rather than for what they did at their paid jobs) [hereinafter Rhode, Balanced Lives].

115 See id. ("Many women, and an increasing number of men, do not define

themselves exclusively or even primarily in terms of what they do for a living.").

116 See STEVEN M. GELBER, HOBBIES: LEISURE AND THE CULTURE OF WORK IN

AMERICA 11-12, 32 (1999) (discussing how productive or "worklike" hobbies that develop
expertise can be rewarding and provide a sense of personal accomplishment, similar to the
feeling of satisfaction that results from engaging in paid work); Rhode, Balanced Lives,
supra note 114, at 837-38 (noting the value of volunteer work and family in providing
fulfillment in people's lives).

117 Schultz, Life's Work, supra note 5, at 1945.

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non-wage work that can supplement an individual's larger sense of purpose
and fulfillment.

Schultz strongly believes that work and sexuality can exist
harmoniously in that people find satisfaction and value in both, and that all
workers, regardless of gender, race, class, or sexual orientation, can be
regarded simultaneously as serious workers and as sexual beings at work." 8

One can endorse the perspective that the workplace serves as a locus for
human flourishing and valuable community interaction, and yet it does not
follow that sexuality needs to be present in the workplace to make one's
work a fully satisfying experience. To the contrary, one study showed that
women who received sexual comments or compliments at work reported
lower levels of job satisfaction than women who did not receive such
comments, while men's job satisfaction level remained unaffected by
sexuality at work. 19 Further, more men reported that they would be
flattered by a woman's sexual advance in the workplace, whereas more
women said they would be insulted by a man's sexual advance. 20

Predictably, women targeted by men's sexual advances worked in
environments where sexuality was encouraged.' 2' Privileging sexuality at
work, therefore, is likely to add to or have no effect on men's experiences,
while seriously detracting from women's experiences. In light of this
uneven distribution of positive, neutral, and negative effects, the optional
preferences of some should not outweigh the injuries others will suffer.

The public world of work has historically been a male-dominated
domain organized around gendered norms involving sexual as well as
nonsexual content, all of which function to keep women less-than-fully
integrated. Men's competence or natural position at work is unquestioned
while women's foothold in the labor market is less securely rooted, an
imbalance that Schultz has argued comes about when men discriminate
against women to gamer work's advantages and rewards.' 22 Departing from

118 Schultz, supra note 3, at 2166-68.

119 Gutek, supra note 38, at 114-15 (based on a study of female and male workers

through telephone interviews in the Los Angeles area using a random sample).

120 See id. at 96-97 (reporting that "67 percent of the men in the Los Angeles

County survey said they would be flattered by a proposition made by a woman at work, but
only 17 percent of the women said they would be flattered by a proposition from a man.
Whereas most women said that sexual advances are insulting to them, only a minority of
men apparently feel this way .....

121 Id. at 122.

122 See generally Schultz, Reconceptualizing, supra note 1.

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this common ground, I argue that working men who engage in sexual
conduct will de facto be seen as workers first and as sexual subjects second,
whereas working women who openly engage in sexual behavior will be
viewed as sexual objects first and as workers second, and even then perhaps
not as competent or serious workers.' 23 Surely, women should be free to
take charge of their sexuality and act on their own sexual desires, but in
doing so they should carefully reflect upon current sexual practices and
desires in the workplace that have long been masculine in character before
routinely adopting them as their "own."

Women are more frequently sexually objectified than men in our
society and as a result are still disproportionately harmed and influenced by
masculine-defined sexuality. Although sexuality is a natural human force
that plays an important part in people's lives, this does not mean open
sexuality should be a part of everyone's work environment. The line
between welcome sexual conduct at work and unwanted sex harassment
remains blurry and differs according to different people's perspectives.
Advocating for a sexuality-constrained organizational model is not a view
that seeks to avoid "messy" sexual desire, but instead a perspective that
attempts to take into account the harmful toll that masculine-driven sexual
behavior has had and continues to have upon working women as well as on
gender-nonconforming men.

D. Schultz's New Liability Rules

Schultz argues that the purpose of Title VII is not to "police
sexuality" because she does not believe sexual behavior is what
significantly contributes to sex discrimination, 24 On the contrary, she
asserts that sex harassment is primarily linked to sex segregation on the
job. 125 She perceives the problem of sex harassment as a problem of
structural inequality: having men significantly outnumber women at the
worksite allows the former to preserve the environment as a male sphere

123 Gutek, supra note 38, at 100-01 (emphasizing that men, unlike women, are

automatically viewed as serious workers and hence do not need to be as concerned about
attention directed to their sexuality). Although sex harassment can center on a female
worker's supposed incompetence at work rather than on her sexuality, as Schultz has rightly
argued, I suspect that women employees who actively engage in sexual banter will, if they
are harassed, be harassed in a likewise sexualized way.

124 Schultz, supra note 3, at 2131.

'25 Id. at 2132.

[Vol. 15:3



The Organization as a Gendered Entity

where women do not belong. 126 Sex segregation allows sex harassment,
whether sexual or nonsexual in form, to thrive and harm, and the
harassment in turn maintains sex segregation by keeping nonconformists
away. 2 7 Thus, under Schultz's view, sex harassment is structurally rooted
in the absence of numerical parity. But she points out that if women were to
make up a greater proportion of the workforce so that the work environment
were truly egalitarian, then women would be in a position to mold the work
environment and culture to their own preferences.128 In such an
environment, Schultz posits, sexual conduct would not have the same
injurious effect that it otherwise has in a sex-segregated setting because
women would perceive the behavior differently if more of their own gender
were present in the work organization. 129

In emphasizing this link between sex segregation and sex
harassment, Schultz contends that employers should de-emphasize
sensitivity training 13 and instead be given incentives to integrate their
respective workforces. 3 ' Toward this end, she proposes differentiated
employer liability rules under Title VII depending on the proportion of
women in the particular work setting, modeled on the different burdens of
proof used in disparate impact and disparate treatment law.132 For
harassment suits involving highly segregated work environments, where
women make up less than fifteen percent of the relevant positions in the
workforce, her proposal follows the model of disparate impact law, which
requires an employer to hire a balanced workforce or show that despite an
imbalance, the employer used valid selection procedures or had a business
necessity.133 Under this model, plaintiffs would have an easier time proving
a hostile environment sex harassment claim. Such a claim would create a
rebuttable presumption that the harassment, either sexual or nonsexual in
form, was because of sex and thus actionable under Title VII. On the other

126 id.

127 id.

128 Id. at 2174.

129 Id.

130 Id. at 2071.

131 Id. at 2173.

132 Id. at 2174-76.

13 3 Id. at 2175.

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Columbia Journal of Gender and Law

end of the scale, for suits involving fully balanced work environments,
where women make up forty to fifty percent of the relevant positions,
Schultz recommends following the model of disparate treatment law, which
requires the plaintiff to demonstrate both discriminatory intent on the part
of the employer and a material change in the terms or conditions of
employment. 34 In these cases, plaintiffs would have a greater burden of
proof than is currently required for hostile environment sex harassment
claims.1 35 For suits involving all other work environments, where women
make up fifteen to thirty-nine percent of the relevant positions, the
employer would be subject to the current rules governing sex harassment. 136

She suggests that these rules would be easy to implement, as the Equal
Employment Opportunity Commission (EEOC) could recommend them
through its interpretive guidelines, and the courts could apply them as a
matter of statutory interpretation. 137

Schultz's proposal is important in that gender integration is
necessary to curtail harassment on the job. It is logical that sex harassment
is likely to thrive in an environment where few women are represented in
both employee and supervisory positions, because where women are few in
number, they lack the group and institutional power to resist the hostile
environment and are more easily targeted for behavior that insults their
sense of personhood as women and their sense of worth as workers.1 38 At
the same time, Schultz's proposal raises questions about the efficacy of a
plan that focuses only on numbers without a concurrent focus on modifying
the institutional norms of the work organization. Gender integration is an
imperative goal, but I challenge whether this alone will adequately counter
masculine forms of sexual expression within the workplace, an issue I take
up in the next section regarding the gendered model of the organization.

Apart from the evidentiary benefit of allowing a female plaintiff
working in a mostly male environment to more easily make a case for
hostile environment harassment, disparate impact claims neither entitle the

134 Id. at 2176, 2180.

"' See Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), discussed supra Part II
(providing the current legal standard for sex harassment claims).

136 Schultz, supra note 3, at 2176.

13 7 Id. at 2181.

138 See ROSABETH Moss KANTER, MEN AND WOMEN OF THE CORPORATION 208-09

(1977) (discussing the significance of the ratios of different group types and the proportions
needed for a group to be able to exert influence over the organizational culture).

636 [Vol. 15:3



The Organization as a Gendered Entity

plaintiff to a jury trial nor permit the plaintiff to recover compensatory and
punitive damages under the Civil Rights Act of 1991, which amended Title
VII to provide for jury trials and such damages only in intentional
discrimination cases. 139 The types of damages that would follow from
Schultz's recommendation appear to be incongruous: an employer with a
highly segregated workforce would be shielded from all liability for money
damages under a disparate impact claim, while the employer with a well-
integrated workforce would be exposed to both compensatory and punitive
damages under a disparate treatment claim. Further, the plaintiff bringing a
disparate impact suit would not have the advantage of having a jury make
the findings of fact-not a small detriment to the plaintiff if the judge
presiding over the case tends to dismiss the notion that mostly male
environments produce uneven discriminatory effects on women.140

Another implication of Schultz's proposal is the respective
institutional competence of the federal courts, the EEOC, and Congress to
formulate and implement new legal rules under Title VII. Sex harassment
law has been and most likely can continue to be court-made, but we should
inquire whether this is the proper and desirable function of the courts.
Although the federal courts have made important inroads in establishing sex
harassment law, it is not entirely clear that the federal judicial arena is
where this area of the law should continue to be developed. While the
federal courts may be better positioned to develop sex harassment law
through case-by-case analysis and adjudication, the EEOC, as the agency
charged with enforcing Title VII, may be technically superior to the federal
courts in examining and recommending Schultz's number-specific liability
standards. Further, there are strong arguments for bringing the issues of sex
harassment to the attention of Congress to promote equality for women
while enhancing women's political experience and power.

Accepting as a first step that Schultz's proposal is in large measure
a good one, how then should the new rules be implemented? Schultz

' See 42 U.S.C. §§ 1981 a(a)(l), (c) (2000); see generally Robert A. Kearney, The
Unintended Hostile Environment: Mapping the Limits of Sexual Harassment Law, 25
BERKELEY J. EMP. & LAB. L. 87 (2004) (exploring the advantages and difficulties in applying
the disparate impact model to hostile environment claims).

140 See, e.g., Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 343 n.6 (4th Cir.

2003) (en banc) (Williams, J., dissenting) (plainly stating that applying a protective standard
for women in the workplace is "paternalistic" and concluding that the female plaintiff was
not entitled to recover any damages for her sex harassment claim alleging a hostile
environment, notwithstanding the record which demonstrated that graphic sexual conduct
was carried out in the plaintiffs presence as well as directed toward her in her male-
dominated work setting).

2006] 637



Columbia Journal of Gender and Law

maintains that congressional action would not be needed to codify these
rules because the EEOC could simply recommend their implementation
through its interpretive guidelines, and the courts could apply them through
its case-by-case method.' 4' As a possible concern, Schultz admits an
important question might exist as to whether employers would be able to
lawfully institute voluntary affirmative action programs to recruit more
women employees. 142 But she believes her proposed evidentiary standards
could be adopted in conjunction with the relevant legal precedent, noting
the Supreme Court has held in United Steelworkers v. Weber 143 and Johnson
v. Transportation Agency 144 that employers could engage in voluntary race-
or sex-based affirmative action under Title VII if they could show the jobs
were sufficiently segregated.145 The Equal Protection Clause of the
Fourteenth Amendment, however, imposes a stricter standard on public
employers who wish to engage in remedial action, at least for race-based
remedial programs. 46 The Supreme Court has not directly spoken on the
issue of sex-based remedial action by public employers, and the federal
appellate courts disagree as to whether the applicable test is strict or
intermediate scrutiny. 147

Can and should the federal courts simply implement the proposed
liability rules as a matter of judicial interpretation under Title VII?
Schultz's proposal calls for preventative measures rather than simply
remedial action in addressing sex discrimination, and the Supreme Court

141 Schultz, supra note 3, at 2181.

142 Id. at 2193 n.470.

143 443 U.S. 193 (1979); see also discussion infra notes 149-164 and

accompanying text.

144 480 U.S. 616 (1987); see also discussion infra notes 165-176 and
accompanying text.

145 Schultz, supra note 3, at 2193 n.470.

146 Id.; see also City of Richmond v. Croson, 488 U.S. 469 (1989) (requiring the

state to show firm evidentiary basis for a determination that historical discrimination caused
the under-representation of minorities); Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
227 (1995) (applying strict scrutiny to "all racial classifications, imposed by whatever
federal, state, or local governmental actor").

147 Schultz, supra note 3, at 2193 n.470 (citing Brunet v. City of Columbus, I F.3d
390, 404 (6th Cir. 1993); Conlin v. Blanchard, 890 F.2d 811, 816 (6th Cir. 1989); Eng'g
Contractors Ass'n v. Metro. Dade County, 122 F.3d 895, 909 (11 th Cir. 1997); Ensley
Branch, NAACP v. Seibels, 31 F.3d 1548, 1579 (11 th Cir. 1994)).

[Vol. 15:3



The Organization as a Gendered Entity

has stated that Title VII is mainly meant to serve as a proactive enforcement
tool, not solely a mechanism for redress. 148 Thus far, the Court has
addressed the issue of voluntary affirmative action programs under Title VII
in only two cases, both of which may not actually bear directly on whether
the federal courts can impose affirmative action plans on employers
according to Schultz's differentiated liability rules.

In United Steelworkers ofAmerica v. Weber,149 a voluntary, private
employer affirmative action plan to recruit more black employees was
challenged as unlawful under Title VII's antidiscrimination provisions. 150

The employer entered into a collective bargaining contract with the union,
an agreement that provided for a plan to racially integrate the employer's
almost all-white craft-work division and to work toward hiring a percentage
of black craft-workers that matched the percentage of blacks represented in
the local workforce. 151 On-site training programs were created to enable
both black and white unskilled laborers to become craft-workers, with a
minimum of half of these training positions set aside for black workers until
the proportion of blacks in craft-work positions approached the proportion
of blacks in the local workforce.152 Pursuant to the plan, black employees
with less seniority were hired for these training openings over more senior
white employees. 

153

The respondent, a white employee, filed a class-action suit alleging
the plan was impermissible under §§ 703(a) and (d) of Title VII, as it
discriminated against him and similarly situated white employees.' 54 Justice
Brennan, writing for a 5-2 majority, pointed out that this plan was a
voluntary one implemented by a private employer, and hence the Court was
not determining what Title VII required. 15 5 The Court, rather than accepting

148 Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975).

149 443 U.S. 193 (1979).

150 Id. at 197.

151 id. at 198.

152 Id. at 198-99.

"' Id. at 199.

'14 Id. at 199-200.

1 Id.

2006] 639



640 Columbia Journal of Gender and Law [Vol. 15:3

the respondent's argument that the plain meaning of §§ 703(a) 156 and (d) 157

of Title VII makes it impermissible to discriminate because of race in
employment and in training programs, instead looked to the legislative
history and background context of the statute's enactment to ascertain the
spirit of the Act, which the Court found to be in accord with the employer's
plan to "eliminate traditional patterns of racial segregation." 158 The Court
also examined the language and legislative background of § 7030):1 59 "The
Section provides that nothing contained in Title VII 'shall be interpreted to
require any employer . . . to grant preferential treatment ... to any group
because of the race . . . of such ... group on account of' a de facto racial
imbalance in the employer's work force."' 160 Given that this provision uses
the word "require" and not "permit," the Court inferred that Congress only
wished to ban all forms of mandatory race-based affirmative efforts.' 61 The

156 § 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) (2000), in its entirety, states: "It

shall be an unlawful employment practice for an employer-(1) 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; or (2) to limit, segregate, or classify
his employees or applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely affect his status
as an employee, because of such individual's race, color, religion, sex, or national origin."

"' § 703(d) of Title VII, 42 U.S.C. § 2000e-2(d) (2000), in its entirety, states: "It
shall be an unlawful employment practice for any employer, labor organization, or joint
labor-management committee controlling apprenticeship or other training or retraining,
including on-the-job training programs to discriminate against any individual because of his
race, color, religion, sex, or national origin in admission to, or employment in, any program
established to provide apprenticeship or other training."

158 Id.

159 § 7030) of Title VII, 42 U.S.C. § 2000e-2G) (2000), in its entirety, states:
"Nothing contained in this title shall be interpreted to require any employer, employment
agency, labor organization, or joint labor-management committee subject to this title to grant
preferential treatment to any individual or to any group because of the race, color, religion,
sex, or national origin of such individual or group on account of an imbalance which may
exist with respect to the total number or percentage of persons of any race, color, religion,
sex, or national origin employed by any employer, referred or classified for employment by
any employment agency or labor organization, admitted to membership or classified by any
labor organization, or admitted to, or employed in, any apprenticeship or other training
program, in comparison with the total number or percentage of persons of such race, color,
religion, sex, or national origin in any community, State, section, or other area, or in the
available work force in any community, State, section, or other area."

160 United Steelworkers of Am. v. Weber, 443 U.S. 193, 205-06 (1979).

161 Id. at 206.



The Organization as a Gendered Entity

Court found that this reading of § 703(j) was in harmony with Congress'
intent to minimize federal regulation of private employers, as well as in
harmony with the Act's goals. 162

Although the Court did not provide a clear standard of what
constitutes a lawful affirmative action plan, the Court highlighted the
following three features of the plan at issue to show that the plan fell within
the permissible scope of Title VII: (1) the plan was structured to "break
down old patterns of racial segregation and hierarchy" by making available
job opportunities for blacks in areas that had been historically unavailable
to them; (2) the plan did not "unnecessarily trammel the interests of the
white employees," in that it did not call for the firing of current white
employees in order to replace them with black workers, nor did it "create an
absolute bar to the advancement of white employees," since the plan did not
prevent the upward job mobility of white employees; and (3) the plan was
"a temporary measure . . . not intended to maintain racial balance, but
simply to eliminate a manifest racial imbalance," assuring the Court that the
affirmative efforts would cease once the percentage of black workers in the
desired occupation reached the percentage of blacks in the local
workforce. 163  Accordingly, the Court upheld the voluntary, private
employer affirmative action plan as valid under Title VII. 164

Weber remains good law, as confirmed in Johnson v.
Transportation Agency, 165 which involved another affirmative action
program, this time implemented by a public employer.' 66 This plan allowed
the county agency to take into account, among other factors, the sex of a
qualified applicant when deciding promotions involving job categories in
which women had been historically underrepresented, but unlike in Weber,

162 Id. at 206-07.

163 Id. at 208.

164 Id. at 209. In his concurrence, Justice Blackmun advocated for a narrower

standard, asserting that the voluntary affirmative action plan should be examined according
to whether it is a "reasonable response to an 'arguable violation' of Title VII," as opposed to
the Court's more expansive holding that allows for affirmative efforts if the profession has
been a historically segregated occupation. Nonetheless, Justice Blackmun joined in the
Court's opinion and judgment because he viewed the Court's reasoning as a fair and
practicable extension of the "arguable violation" approach. Id. at 209-16 (Blackmun, J.,
concurring).

165 480 U.S. 616 (1987).

166 Id. at 619.

2006]



642 Columbia Journal of Gender and Law [Vol. 15:3

the plan did not reserve a specified number of positions to be filled by
women. 167

Johnson, a male employee, filed suit under Title VII, alleging
discrimination on the basis of sex, after a female colleague was given a
promotion for which he had applied. 168 Even though this case involved a
public employer, Johnson did not raise a constitutional claim but only
proceeded with his statutory claim.'169 The majority opinion, again authored
by Justice Brennan, held that the proper analysis of a voluntary affirmative
action program by a public employer under Title VII was not the same as it
would be under the Constitution.170

The Court then looked to Weber as the proper precedent in deciding
this case.17 1 The first question the Court examined was whether there was a
"'manifest imbalance"' in the representation of women in the particular job
category in question due to historical segregation. 72 Because the agency

167 Id. at 619-22.

168 Id. at 625.

169 Id. at 664 (Scalia, J., dissenting) (noting this fact).

170 Id. at 628 n.6. The Court disagreed with Justice Scalia who argued in his dissent

that the constitutional standard set forth in Wygant v. Jackson Board of Education, 476 U.S.
267 (1986), should be applied here. The Court differentiated the contexts of Title VI (the
statute at issue in Wygant) and Title VII, noting that the former involved the use of federal
power and federal money whereas the latter 'was enacted pursuant to the commerce power
to regulate purely private decisionmaking and was not intended to incorporate and
particularize the commands of the Fifth and Fourteenth Amendments. Title VII and Title VI,
therefore, cannot be read in pari materia' . . . . The fact that a public employer must also
satisfy the Constitution does not negate the fact that the statutory prohibition with which that
employer must contend was not intended to extend as far as that of the Constitution." Id.

"' Id. at 627-28. Interestingly, not a single party in this case briefed, argued, or
even raised the point that Weber should be overruled, either in the Supreme Court or in the
lower federal courts. Id. at 648 (O'Connor, J., concurring).

172 Id. at 631. In showing that this manifest imbalance warrants affirmative efforts,

the employer can make the appropriate comparison to the outside labor force depending on
the skill level of the job at issue: a comparison can be made to the local labor force or the
population at large if the job involves no special skills or is part of a training program meant
to impart skills, but if a job involves particular skills, then the appropriate comparison is with
workers in the labor market who are actually qualified for the job. Id. (citing Teamsters v.
United States, 431 U.S. 324 (1977) (finding that racial imbalance in truck driver jobs was
properly demonstrated by comparing the proportion of blacks employed with the proportion
of blacks in the general population); Hazelwood Sch. Dist. v. United States, 433 U.S. 299
(1977) (holding that to demonstrate the under-representation of black teachers in the
employer's workforce, the proper comparison is with the percentage of blacks in the local
labor force with the relevant teacher qualifications). The Court pointed out that this



2006] The Organization as a Gendered Entity 643

plan did not command "blind hiring" based on numbers, but authorized the
consideration of a variety of factors when hiring, including the gender of
the qualified applicants, the plan satisfied the first prong of Weber.173 The
Court also found that the plan met Weber's second requirement, as it did not
unnecessarily trammel the rights of male workers since no quotas were
encouraged, and the plan did not create an absolute bar to Johnson's
advancement since he had never been guaranteed to be hired for the job. 174

Lastly, the Court was assured that the agency plan was not meant to be
permanent, given the absence of set-aside numbers and the agency's
incremental approach to balancing its workforce, thus satisfying the third
element of the Weber analysis. 175 The Court again upheld the employer-
initiated affirmative action program, this time according to the program's
asserted goal of promoting qualified women employees, as lawful under
Title VII.

17 6

As in Weber, Johnson centered on the Court's interpretation of
Title VII and the judiciary's role in advancing antidiscrimination law. The
voluntary sex-conscious affirmative action plan was judicially approved

imbalance would not need to, although it could, constitute a prima facie case of
discrimination as required under the Constitution, reiterating that Title VII does not impose
identical obligations on the employer as dictated under the Constitution. Id at 632-33.

173 Id. at 637.

174 Id. at 637-38.

175 Id. at 639. The Court did not find it problematic that the plan had no end date,

"for the Agency's flexible, case-by-case approach was not expected to yield success in a
brief period of time. Express assurance that a program is only temporary may be necessary if
the program actually sets aside positions according to specific numbers." Id. at 639-40.

176 Id. at 641-42. Justice Stevens concurred in the Court's opinion due to his

adherence to the principle of stare decisis under the precedents of Regents of University of
California v. Bakke, 438 U.S. 265 (1978), and Weber, although he disagreed with the
Court's reading of Title VII as giving white employees a different level of protection against
discrimination. Johnson, 480 U.S. at 642-44 (Stevens, J., concurring). Justice O'Connor also
wrote a separate concurring opinion, respecting the precedent set by Weber but asserting that
the lawfulness of an affirmative action plan instituted by a public employer should be
examined under the Equal Protection Clause as articulated in Wygant. Id. at 649 (O'Connor,
J., concurring). In her view, public employers under Title VII should follow the same
obligations as mandated under the Constitution; specifically, they must have a firm basis for
believing that remedial action was required. An employer would have such a firm basis if it
can point to a statistical disparity sufficient to support a prima facie claim under Title VII by
the employee beneficiaries of the affirmative action plan of a pattern or practice
discrimination claim. Id. at 649. Because she found that the plan in Johnson satisfied these
requirements, she concurred in the Court's judgment. Id. at 657.



Columbia Journal of Gender and Law

under the statute, thus confirming the power of the federal courts to
establish and entrench the legality of such employer efforts. The Johnson
Court may have approved sex-conscious affirmative action plans
voluntarily initiated by private or public employers under Title VII, but
Schultz's proposal appears to go a step further by recommending that
federal courts try to compel employers to do so by imposing different
evidentiary standards according to the degree of gender integration within a
particular organizational level. We might then assume that employers would
have to implement sex-based affirmative action programs in order to recruit
and promote qualified women and to benefit from the relaxed evidentiary
standard that would apply to a gender-balanced workforce. Although
Schultz's proposal does not explicitly require that an employer implement a
plan to recruit more women, employers presumably would want to
minimize their risk of liability by instituting exactly such a plan. In fact,
plaintiff employees who felt harassed in a workplace where no sex-
conscious affirmative action plan existed might more readily bring a charge
of sex harassment against the employer under Schultz's proposal, especially
if the workforce was not well-integrated with respect to gender.

The scenario under Schultz's liability rules differs from the factual
scenarios in Weber and Johnson, in which the employers on their own
initiative implemented affirmative action plans without a clear threat of
legal consequences if they had chosen not to do so. Therefore, these cases
do not directly speak to whether Schultz's plan would also be judicially
upheld, since her proposal appears to compel the implementation of
affirmative action programs, rather than merely permit them, on the part of
employers. Moreover, if Schultz's plan were understood to mandate
employers to initiate such programs, then the holdings and reasoning of
Weber and Johnson would likely cut against her proposal, as the Court was
careful to only address what Title VII permits and not requires. Indeed, the
Court concluded from the plain language of § 7030) that Congress intended
to prohibit all mandatory affirmative action efforts. 177

On the other hand, Schultz's differentiated liability rules may be
understood as not necessarily requiring employers to implement affirmative
action programs because her proposal does not recommend full- or zero-
liability, but rather different degrees of liability depending on the proportion
of women in the work organization. In this way, her plan only encourages
employers to adopt such plans, but regardless of whether they do or not,
plaintiff employees would still have to meet some evidentiary burden in

177 See discussion supra notes 149-176 and accompanying text on Weber and
Johnson.

[Vol. 15:3



The Organization as a Gendered Entity

proving a charge of hostile environment sex harassment. In addition,
Schultz asserts that most employers would not actually need to implement
sex-conscious programs to desegregate their workforces, but could just take
steps to prevent intentional or unintentional discrimination based on sex. 78

Such measures might include "reducing the level of subjectivity in the
selection and evaluation processes, providing more and better-quality
information about members of discriminated-against groups who are hired,
and requiring supervisors to be accountable for the treatment and
performance of such employees."'' 79 More research needs to be conducted to
determine whether these measures would sufficiently achieve gender
desegregation in most workplaces, or whether sex-conscious affirmative
efforts would need to be expressly adopted. If the latter, then it still remains
an unsettled question as to whether Schultz's proposed employer liability
rules for sex harassment could be applied and codified by the courts, even
under the precedents set by Weber and Johnson.

In making the interpretive leap from upholding the plan in Johnson
to implementing Schultz's proposed liability rules, the federal courts could
engage in a form of judicial activism by advancing public values in
statutory construction, an approach advocated by Professor William
Eskridge to render judicial decisions justifiable. 180 In the area of
antidiscrimination law, he suggests that society's understanding of
discrimination has progressed over the years and that courts should be able,
and are expected, to take these recently shared public values into account to
avoid producing an outmoded decision. 181 He contends that statutory
interpretation evolves as our knowledge and perception of the problem

178 Schultz, supra note 3, at 2181 n.470.

171 Id. at 2179 n.465 (citing Barbara F. Reskin, The Proximate Causes of

Employment Discrimination, 29 CONTEMP. Soc. 319 (2000)).

180 William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA.

L. REV. 1007, 1067 (1989). But cf Daniel J. Meltzer, The Supreme Court's Judicial
Passivity, 2002 SuP. CT. REV. 343 (2002) (describing how the Court selectively decides
when to actively construe a federal regulatory scheme and when to leave that task up to
Congress).

181 Eskridge, supra note 180, at 1067-68. But see John F. Manning, The Absurdity

Doctrine, 116 HARV. L. REV. 2387, 2431 (2003) (arguing for legislative superiority when
construing statutes, asserting that the original legislative process in enacting statutes needs to
be respected and conserved, even if following the clear textual mandate would result in an
absurd policy).

2006] 645



Columbia Journal of Gender and Law

evolve and as new actors construe the issue in consideration of the
interpretations made before them.18 2 As Eskridge explains:

The purpose of a statute changes over time as the targeted
problem changes, often negating the assumptions critical to the
original formulations of that purpose. Statutory purpose also
changes as new interpreters approach the issue, often reacting to
problems they perceive in prior interpretations. And Congress
itself provides feedback, signals that approve or disapprove of the
way the agency or the Court is developing the statutory policy or
purpose. 1

83

Eskridge believes the Court in Weber correctly infused contemporary public
values into its interpretation on the question of affirmative action, thereby
arguably lending support to a likewise move by the federal courts to infuse
public values in addressing sex harassment by encouraging gender
desegregation according to Schultz's rules.

Taking into account contemporary social values in judicial
interpretation does not necessarily upset the balance of power between the
judiciary and legislature if the relationship between the branches is
perceived as a check on the process of lawmaking, rather than a clear
separation of powers.' 84 In this way, the whole process of lawmaking,
whether legislature-enacted or judge-made, operates in a dynamic fashion
as Eskridge suggests.

Both Weber and Johnson support the proposition that Title VII
permits preventative rather than purely remedial affirmative action because
the employers in these cases were attempting to ameliorate the under-
representation of blacks and women in their workforces, and not

182 WILLIAM N. ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION 31 (1994).

1831Id. at 30-31.

184 But see John F. Manning, Textualism and the Equity of the Statute, 101 COLUM.

L. REv. 1, 56-102 (2001) (asserting that our nation's history supports the view that federal
judges should act as the "faithful agents" of Congress in our constitutional system founded
on a principle of separation of powers). See also William N. Eskridge, All About Words:
Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101
COLUM. L. REv. 990, 1030-87 (2001) (challenging Manning's historical defense of the
modem faithful-agent theory by offering his own historical account of the Founders'
approach to statutory interpretation and their focus on a system of checks and balances rather
than a strict separation of functions, thereby upholding the view of federal judges as
"partners" in the lawmaking process).

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The Organization as a Gendered Entity

specifically to address past discrimination by the employer per se. 18 5 In
neither case did the Court require evidence of the employer's past pattern or
practice of discrimination to find the affirmative action plans lawful. In
cases of pattern and practice discrimination, the Court requires the plaintiff
to make a prima facie case of discrimination by showing that the employer
discriminated by under-hiring the protected class of employees as compared
to their percentage in the relevant labor market.' 86

To show a manifest imbalance, however, the Johnson Court stated
that the plaintiff need not make a prima facie case of discrimination., 87

Thus, where the employer is implementing a voluntary affirmative action
plan to avoid rather than remedy sex discrimination, the employer might
only have to show a numerical disparity in the workforce, without the
necessary comparison to the percentage of women in the relevant job
pool. 188 As Schultz argues, the presence of only a few women in the work
environment renders them especially vulnerable targets for discrimination
because they are in a position of structural weakness-either isolated from
other women or not in a position to exert control or influence over their
work settings. 189 To make this point, Schultz relies on social scientist
Rosabeth Moss Kanter's pioneering study on women and men in the
corporation. 19 Kanter's study finds that employees who make up less than
fifteen percent of the relevant positions in the workforce are members of a
"skewed" group because, within this range, they are subject to the practices
of the numerically "dominant" group. 19 Consequently, at this level, Schultz
advocates for the judicial application of the less employer-friendly rules for
highly segregated workplaces. On the other hand, employees who make up
forty to fifty percent of the relevant positions are part of a gender-balanced

185 See discussion supra notes 149-176 and accompanying text on these cases; see

also Michael J. Yelnosky, The Prevention Justification for Affirmative Action, 64 OHIO ST.

L.J. 1385, 1408-09 (2003).

186 Johnson v. Transp. Agency, 480 U.S. 616, 632-33 (1987).

187 id.

188 See Yelnosky, supra note 185, at 1418.

189 Schultz, supra note 3, at 2171-72.

'90 Id. at 2180 (citing ROSABETH Moss KANTER, MEN AND WOMEN OF THE

CORPORATION (1977)).

191 Id.

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group, 192 and in such situations the employer would benefit from a stronger
burden of proof required of the plaintiff under Schultz's rules. Employees
who comprised fifteen to thirty-nine percent are part a "tilted" group, 193 and
in this case the employer would be subject to the current rules governing
hostile environment sex harassment. Schultz adopts Kanter's figures to
demarcate the percentage targets that courts should use in deciding the level
of sex harassment liability to be imposed on the employer.' 94

The Court has held that an employer affirmative action plan, while
lawful in its aspiration for a balanced workforce based on race or sex,
becomes unlawful if it becomes a permanent plan.195 The Court determined
that the affirmative action plans in Weber and Johnson were meant to
achieve a more representative workforce but not to retain the balanced
representation, and thus did not trammel the rights of the nonprotected
majority group. As one scholar critically observes, because employers can
attain but not maintain a balanced workforce through affirmative efforts,
Title VII does not fully allow for a sustained and "integrative model of
affirmative action. 196

Under Schultz's proposed rules, employers could institute policies
or programs to encourage and work toward gender integration at all levels,
but would have to discontinue their affirmative efforts once they achieved a
fully gender-balanced workforce. It remains debatable, however, whether
the statutory precedents set by Weber and Johnson indicate that Schultz's
proposed liability rules can be implemented by the courts.

E. Comparative Institutional Competence

The federal courts may not even be the best institution to
implement Schultz's proposal, which involves numerical line-drawing for
employer liability. Drawing such lines cannot be mathematically precise,
and this type of standard-before being implemented-perhaps should be
studied in a setting that allows for a thorough analysis of the available data,
including careful consideration of the arguments for and against such a

192 id.

193 Id.

194id.

195 Johnson v. Transp. Agency, 480 U.S. 616, 639-40 (1987).

196 Elizabeth S. Anderson, Integration, Affirmative Action, and Strict Scrutiny, 77

N.Y.U. L. REv. 1195, 1215 (2002).

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The Organization as a Gendered Entity

proposal. Particularly because this number-specific proposal is intended for
general application, the EEOC may be better suited than the federal courts
to amass and examine large-scale data that could inform the adoption of
Schultz's recommendation. The EEOC is more technically competent vis-A-
vis the courts to consider this proposal since the agency can draw upon its
broader experience in addressing sex discrimination and sex harassment.

Furthermore, the agency has shown that it is not averse to urging
numerical guidelines when it adopted the "four-fifths rule" in
recommending the level of disparity that would be sufficient to show a
disparate impact. 197 The Supreme Court, on the other hand, has opted to
simply survey the numbers in determining whether the impact is
disparate. 198 Whereas courts might shy away from adopting Schultz's
number-specific guidelines, the EEOC has the interest and expertise that
lends itself well to evaluating and adopting Schultz's recommendation.
Disparate impact discrimination has been firmly established as a cause of
action under Title VII in both federal common law and statutory law, and
the EEOC has played a role in supporting this development. Considering
that it would be unacceptable for the agency to abandon or retreat from this
position in the face of clear legislative directives and judicial precedents,
the EEOC could study the connection between sex segregation and sex
harassment and then build upon its approach to both disparate impact
discrimination and sex harassment to advocate for gender integration along
the lines advocated by Schultz.' 99

197 The EEOC's Uniform Guidelines on Employee Selection Procedures, 29 C.F.R.
§ 1607.4D (1993), provide that a sufficient amount of impact will be shown where the
"selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty
percent) of the rate for the group with the highest rate." This "four-fifths rule" means that
disparate impact could be shown where an employer hires more men than women, and the
hiring rate for women is less than eighty percent of the hiring rate for men.

198 See Griggs v. Duke Power, 401 U.S. 424 (1971) (first establishing systemic

disparate impact discrimination); Albemarle Paper Co. v. Moody, 422 U.S. 405, 424 (1975)
(building upon the holding in Griggs to establish a three-step burden-shifting approach for
disparate impact cases). Congress amended Title VII with the Civil Rights Act of 1991 to
add a new provision, § 703(k), specifically governing disparate impact, to codify the basic
three-step analysis from Griggs and Albemarle Paper. 42 U.S.C. § 2000(e)-12(a) (2000).
This amendment also modified the Supreme Court's refusal in Wards Cove Packing Co. v.
Antonio, 490 U.S. 642 (1989), to allow the use of bottom-line statistics to show disparate
impact by creating an exception that permits the plaintiff to use such statistics to make a
prima facie case of disparate impact discrimination. 42 U.S.C. § 2000(e)-12(a) (2000).

199 A possible concern is that the EEOC may be less committed to effective

enforcement in politically conservative administrations and hence less inclined to adopt these
rules where there is a lack of executive support, especially since EEOC members are
appointed by the President with the advice and consent of the Senate. See 42 U.S.C. § 2000e-

2006] 649



Columbia Journal of Gender and Law

Still yet, the national legislature rather than the federal courts may
be the proper institution to consider and implement Schultz's liability rules
due to the scarcity of statutory guidance on sex harassment and the
difficulty in fully addressing the complicated nature of this phenomenon.
Under the legislative-supremacy model, it is preferable to have the problem
of sex harassment examined by Congress through informed hearings and
debate, in order to foster a national dialogue on the issue and to promote
democratic deliberation. Particularly since sex harassment law and its
attendant policies are controversial and imprecise due to the diffuse and
wide-ranging nature of the problem, it may be desirable to ventilate these
subjects in congressional hearings that could lead to legislation and create
some form of public consensus and support around these issues. Congress,
with its resources and democratic accountability, may be in a better position
than the federal courts to carefully study the problem of sex harassment and
endorse new legal standards. If there is adequate political support for
Schultz's theory of sex harassment and her proposed liability rules, then
Congress will enact them into law, providing an explicit congressional
directive for the courts to implement uniformly when adjudicating sex
harassment cases.

Further, federal legislation would be appropriate to clarify sex
harassment law because Title VII is federal law. State legislatures could
then supplement federal legislation with extra-statutory provisions
governing sex harassment if they choose. This legislative approach to sex
harassment law might be more profitable than piecemeal adjudication
because the former would have political legitimacy, whereas the latter is
subject to the policy preferences of individual district court judges.200

Moreover, federal judges, many of whom are elite white males, may be less
empathetic toward Title VII plaintiffs who tend to be minority and female,
rendering the federal courts less likely to be favorably disposed toward
effectively upholding or strengthening sex harassment laws.20 While
lawmakers are also predominately male and white, they are nonetheless

4 (2000). The political climate and timing therefore may be important when enlisting the
help of the EEOC in considering these proposed rules.

200 See Theodore F. Claypoole, Comment, Inadequacies in Civil Rights Law: The

Need for Sexual Harassment Legislation, 48 OHIo ST. L.J. 1151 (1987).

201 See, e.g., Mary E. Becker, Needed in the Nineties: Improved Individual and

Structural Remedies for Racial and Sexual Disadvantages in Employment, 79 GEO. L.J.
1659, 1681 (1991) (arguing that judicial hostility toward Title VII plaintiffs may discourage
many would-be plaintiffs from bringing cases).

650 [Vol. 15:3



The Organization as a Gendered Entity

accountable to their constituents, including their many female constituents
who can apply political pressure. 20 2

Indeed, Professor Mary Becker argues that women, as a majority
group, should learn to increase their political influence and deploy it to
bring about real change in relations between the sexes.20 3 She further argues
that binding court decisions can obstruct and interrupt political movements,
especially when the Supreme Court hands down successful but
inefficacious rulings.20 4 As Becker sees it, if women had spent their time
and energy in recent decades on legislative improvements rather than on
judicial review in the area of sex equality, then women today could have
had "more political experience and power" and "ended up in different
places in important institutions. 20 5 In light of the evolving nature of sex
harassment law, federal legislation may be further advantageous compared
to court-created law because the former can initiate change and progression,
while the latter is bound by tradition and precedent. Additionally, legislative
mistakes-legislation that harms women-can be rectified more easily
through the legislative process, as compared to the extreme difficulty of
persuading the Supreme Court to reverse its judicial precedents.20 6

In support of judge-made law in the area of sex harassment,
Catharine MacKinnon argues that individual litigation and the common-law
approach are what have allowed sex harassment law to be created and
developed. 20 7 She believes that the case-by-case method proves itself to be
particularly beneficial for women because it allows for a careful, searching
examination of the harm of sex harassment in the everyday lives of
women. While recognizing that common law in general, and early sex
harassment common law in particular, were not always on women's side,
MacKinnon nonetheless asserts that once the cases came before forward-

202 See Mary E. Becker, Conservative Free Speech and the Uneasy Case for

Judicial Review, 64 U. COLO. L. REv. 975, 989 (1993) (advocating for legislative change
rather than judicial review in advancing women's equality).

203 Id. at 992-98.

204 Id. at 996-97.

205 Id. at 997.

201 Id. at 1010.

207 Catharine A. MacKinnon, The Logic of Experience: Reflections on the
Development of Sexual Harassment Law, 90 GEO. L.J. 813, 831-32 (2002).

208 Id. at 832.

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Columbia Journal of Gender and Law

looking and perceptive federal judges, sex harassment law was finally
established and developed.20 9

MacKinnon does not deny the importance of equality-promoting
legislation, but raises the sobering question of whether a "legislature would
pass a civil code provision giving women the scope of coverage of sexual
harassment in rule form that common law case developments have so far
given them by interpretation., 2 10 With respect to Schultz's recommendation,
it may be that members of Congress would not be willing to touch, much
less legislate on, the heated issue of sex harassment. Congress may much
rather continue to leave this issue to be decided by the courts, unless women
agitate for legislative attention to this issue as Becker argues they should.

Schultz's proposal that employers be given legal incentives to make
their work organizations structurally egalitarian for women is important if
sex harassment at work is to be eliminated. Her express recommendation
for different employer liability rules according to the percentage of women
employees in relevant positions within the organization is connected to her
implied recommendation for sex-based affirmative action policies at work.
It is arguable, however, whether the federal judiciary, the EEOC, or
Congress is best situated to implement these rules. These important
questions of institutional competence need to be further considered as we
chart the future of sex harassment law.

III. THE GENDERED MODEL OF THE ORGANIZATION

Women should be allowed to help determine their workplace
cultures by promoting their full integration in the organization. But I
challenge whether simply integrating women into the workforce will be
sufficient to address masculine forms of sexual expression because the
workplace is traditionally a male realm shaped by masculine norms of
conduct, much of which involves a sexual nature. 211 These sexualized

2
19 Id. at 819-26.

"' Id. at 831.

211 See Lee, supra note 1 (arguing that the problem of workplace sex harassment is

fundamentally linked to long-entrenched masculine normative behavior in the work setting,
regardless of whether the work environment is blue-collar or white-collar); see also Su
MADDOCK, CHALLENGING WOMEN: GENDER, CULTURE AND ORGANIZATION 91 (1999) (stating
that sexuality is an "important feature of the work culture" and that there exist "few public or
private organizations which are not dominated by male values ... and where male cultures
do not invade the attitudes of men and women in their judgments about women and their
approach to organizing within the workplace"); see also Kolb et al., Making Change: A
Framework for Promoting Gender Equity in Organizations, in READER IN GENDER, WORK,

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The Organization as a Gendered Entity

modes of expression will continue to harm women workers, even if the gap
between the number of women and men in the work organization were to
narrow, because these norms were established and persisted in the
organization for men by men.212 As Professor Katherine Franke has
theoretically advanced, sex harassment regulates gender norms by
identifying "women as feminine, (hetero)sexual objects, and men as
masculine, (hetero)sexual subjects," reinforcing the stereotypical image of

21the male as the sexual aggressor. 13 While improving women's power and
position within the organization along with numerical parity are relevant
and important to benefit women in the workplace, expansively advocating
for open sexuality will undercut the goals of eradicating on-the-job sex

214harassment. Rather, as women join the organization in greater numbers,
incidents of sex harassment will more likely decline if women, together
with their male colleagues, act to reform workplace culture meaningfully to
encourage an inclusive environment where all members can thrive.215 While
Schultz also wants to open the way for the creation of a variety of work
cultures that either encourage or limit sexuality according to an integrated
structural process, she nonetheless hopes the sexuality-privileged
organizational model will be more than just a viable option-she would like

AND ORGANIZATION, supra note 36, at 10, 13 (maintaining that organizations are "inherently
gendered" in that the values and practices of the organization mirror the values and practices
of men from a masculine viewpoint); see generally Ann C. McGinley, Masculinities At
Work, 83 OR. L. REV. 359 (2004) (advocating that courts look to masculinities theory and
research to better comprehend the gendered nature of work when adjudicating sex
discrimination claims under Title VII).

212 See Myrtle P. Bell & Mary E. McLaughlin, Sexual Harassment and Women's

Advancement: Issues, Challenges, and Directions, in ADVANCING WOMEN'S CAREERS:

RESEARCH AND PRACTICE 83, 89 (Ronald J. Burke & Debra L. Nelson eds., 2002) (noting a
study which found a correlation between a sexually-charged work environment and sex
harassment, adding that "[w]ork environments that are sexualized or unprofessional clearly
would appear to increase the opportunity for sexual harassment and other harmful behaviors,
regardless of the overall sex-ratio of the environment").

213 Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. L.

REV. 691, 693 (1997).

214 See Bell & McLaughlin, supra note 212, at 90 (stating that, based on empirical

data, women's advancement and sex harassment in particular are affected by the following
three features: "women's organizational power and status; sex-ratio; and professionalism or
sexualization of the work environment").

215 See Tristin K. Green, Work Culture and Discrimination, 93 CAL. L. REv. 623,

643-53 (2005) (explaining how work cultures centered around a white, male norm
disadvantage women and people of color in the workplace).

2006] 653



Columbia Journal of Gender and Law

it to be the preferred one. 216 To illustrate how this model can flourish in a
fully mixed-gender or all-female work environment, Schultz describes the
sexually-infused workplace norms among editors at two publications, both
of which regularly feature articles on sexual issues.2 17 These work settings,
however, are unique in that engaging in issues of sexuality is a key
component of the work the editors do-simply put, sexual talk for these
editors is an on-the-job requirement. 218 The sexuality-privileged model has
been adopted in these particular settings because sexuality is a substantial
part of the official work product. Even here, the editors qualified the
appropriateness of their workplace sexual norms: at the all-women staffed
magazine, some of the female editors admitted that their personal and
sexually-explicit exchanges did not feel like sex harassment because the
conversations took place among only women. Similarly, at the gender-
integrated magazine, although both the female and male editors engaged in
sexual dialogue relevant to their work, they strictly refrained from talking
about their personal lives.2 19 These workplace examples, unusual
considering their involvement with work-related sexual issues, still neither
exemplify nor aspire in full form to the sexuality-privileged model that
Schultz envisions.

The majority of workplaces do not involve sexuality as part of the
job, and hence the sexuality-privileged model should be considered in the
more common organizational context. Within most work environments,
encouraging women to promote sexuality on the job may be little more than
endorsing the adoption of conventional masculine practices as women's
"own," serving to validate and perpetuate male-coded characteristics of
workplace interaction. Whether many men genuinely prefer a sexualized
workplace culture or reflexively act as if they do is also worth further
discussion. The male workplace prototype reinforces stereotypical,
hypermasculine behavior among men that regulates their gender identities
as well and harms gender-nonconforming men in particular.2 20 By

216 See Schultz, supra note 3, at 2071, 2143-52.

217 Id. at 2145-49 (discussing the work atmospheres at the female-targeted,

feminist magazine "Womyn" and the male-targeted, pornographic magazine "Gentleman's
Sophisticate").

218 See id.

219 Id. at 2146-47.

220 See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 75 (1998)

(involving a male-on-male hostile environment suit where male coworkers employed in an

654 [Vol. 15:3



The Organization as a Gendered Entity

understanding sex harassment as a practice that disciplines gender
performance, as Professor Franke argues, we need not view traditional
masculinity as the inevitable presentation of maleness.22'

Even in a gender-integrated environment, we can imagine that
incidents of sex harassment would continue to take place as certain
individuals will persist in engaging in harassing behavior if they know they
can do so without likely repercussions. Schultz acknowledges that
harassment may not be eliminated from integrated environments, but
suggests that the harassment will not be quite as damaging because it will
be less threatening in a gender-mixed environment. Schultz argues that sex
segregation, and not the cultural insensitivities of men, leads to sex
harassment, 22

2 but a study that looked at every federal court decision on
workplace sex harassment during the decade following Meritor223 found
that hostile environment and quid pro quo claims more than occasionally
arose out of mixed-sex workplaces, where over half of these mixed-gender
cases involved hostile environment claims and where a sizeable percentage
also involved quid pro quo claims. 224 Hence, even better-integrated
environments still suffer from the problem of harassment. The problem
likely persists because harassment is viewed as less offensive or less
threatening only if the harassee knows there are avenues for redress open to
her and that her concerns will be taken seriously. Having women in
leadership positions may help, but targets of harassment will not feel any
more secure if they do not believe they can safely broach the issue or if they
do not know how to raise the grievance for effective redress. 225

oil rig allegedly violently and sexually harassed a nonconforming male crew member and
other crew members in this all-male setting).

221 See Franke, supra note 213, at 765.

222 Schultz, supra note 3, at 2134, 2144.

223 477 U.S. 57 (1986).

224 Juliano & Schwab, supra note 63, at 556, 565-66 (examining 502 district court

opinions and 164 appellate court opinions and finding that "[i]n the eighty-eight mostly-male
workplace cases, only 17% include a quid pro quo claim and 83% rely solely on hostile
environment claims. In the 145 mixed-workplace cases, by contrast, 34% include quid pro
quo claims and only 66% rely solely on hostile environment claims.").

225 See Bell & McLaughlin, supra note 212, at 90 (referring to a study which found

that women's lack of awareness about their organization's sex harassment policy was one of
the key predictors of sex harassment in the workplace).

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Columbia Journal of Gender and Law

Take, for instance, the climate at the Boalt Hall School of Law at
the University of California at Berkeley in 2002, when sex harassment
allegations were filed against Dean John Dwyer by a recent female law
school graduate.2 26 The alleged incident of harassment and assault occurred
while the woman was still in law school, after Dwyer offered to drive the
student home from the bar where they had been drinking.227 According to
the student, she fell fast asleep upon arriving home, only to wake up later in
the night to find Dwyer molesting her in her bed.228 In response to the
student's complaint filed two years later, Dwyer admitted to this single
episode but asserted that the relationship was consensual and stressed the
fact that no intercourse was alleged.22 9 Nonetheless he resigned from his
post as Dean and from the faculty, acknowledging that the behavior
reflected poorly on his judgment.230 Notably, the woman filed her formal
sex harassment complaint only after graduating from Boalt.2 3' Soon after
the incident had occurred, the student approached several faculty members
about what had happened, including sex discrimination specialist and Boalt
professor Linda Hamilton Krieger.232 While the student received support
and sympathy from Krieger, she failed to receive clear guidance on how
this matter should be handled because the school lacked adequate sex
harassment grievance procedures.233 In fact, the law school faculty had not
received any training in sex harassment issues. 234

226 See, e.g., Deborah L. Rhode, Professor of Desire, NAT'L LAW J., Jan. 27, 2003,

at A 17 [hereinafter Rhode, Professor of Desire]; Renee Deger, Boalt Law School Dean
Resigns After Claim of Sex Harassment, LAW.COM, Dec. 2, 2002, at http://www.law.com/
servlet/ContentServer?pagename=OpenMarket/Xcelerate/View&c=LawArticle&cid=103663
0510731 &t=LawArticle.

227 Rhode, Professor of Desire, supra note 226.

228 Id.

229 Deger, supra note 226; see also Press Release, John Dwyer, Dean of UC

Berkeley's School of Law, Resigns (Dec. 2, 2002), available at http://www.berkeley.edu/
news/media/releases/2002/1 2/02 dwyer.html.

230 See Press Release, supra note 229.

231 Id.

232 Maura Dolan et al., Woman Sought UC Berkeley's Help Before Accusing Dean,

L.A. TIMES, Dec. 3, 2002, at Metro 1, available at http://www.chesslaw.com/dwyer5.htm.

233 Id. See also Rhode, Professor of Desire, supra note 226.

234 Rhode, Professor of Desire, supra note 226.

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The Organization as a Gendered Entity

It may seem surprising that no sex harassment complaint procedure
was in place at a law school where the former long-term dean was Herma
Hill Kay, a scholar specializing in sex discrimination law. 235 Dwyer
succeeded Kay as Dean in July 2000,236 and the alleged incident took place
the following semester in December 2000.237 It is troubling that, up until the
time this incident occurred, the school did not have a clearly established
grievance process for sex harassment, including harassment of a student by
a professor. Even Krieger, an expert on women's rights, did not know the
in-house procedure to follow in addressing the student's situation.238 With
or without formal faculty training, professors should be held accountable
for engaging in sexual impropriety, and Dwyer himself immediately and
voluntarily resigned from his positions as both Dean and as a faculty
member at the school. 239 But faculty members, school administrators, and
students still need to be made aware of the institution's sex harassment
policy and procedure to know how these kinds of difficult situations will be
handled. Admittedly, even with such a protocol in place, there will continue
to be individual "bad seeds" who will act inappropriately. The expectations
of everyone in the institution, however, will improve if serious attention is
given publicly to this issue. Having a woman in an organizational
leadership position may indicate to members that sex harassment
complaints likely will be taken seriously, but the environment will not
change unless the organization's leaders make it a public priority to rid the
workplace of sex harassment and other forms of discrimination and
inequality. This institutional re-signaling is important and needs to be made

235 Harriet Chiang, Berkeley Law Dean Quits in Scandal: Sex Harassment Charges

by Student from 2 Years Ago, S.F. CHRON., Nov. 28, 2002. In the context of legal academia,
what effect does a female dean have on the law school in particular and on legal education as
a whole? Dean Kay poses this question herself in her research on women law school deans.
Henna Hill Kay, Women Law School Deans: A Different Breed, Or Just One of the Boys?,
14 YALE J.L. & FEMINISM 219 (2002). She raises the question that the difference in
management and efficacy might lie in whether the woman dean is considered "feminist" and
produces gender-conscious scholarship. Id. at 237-38. As she notes, the current sample size
of women law school deans unfortunately is too miniscule to determine at this juncture
whether there is indeed a correlation. Id. at 238.

236 Chiang, supra note 235.

237 Press Release, supra note 229.

238 Dolan et al., supra note 232.

239 Press Release, supra note 229.

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658 Columbia Journal of Gender and Law [Vol. 15:3

clear, 240 regardless of whether the message comes from female or male
leaders.

It may be expected that a female law school dean such as Herma
Hill Kay, who writes about gender equality, will make this a part of the
institutional agenda while in her decanal position, but the controversial
problem of sex harassment needs to be addressed specifically and
unequivocally by the leadership for complete equality in the workplace to
take hold. Particularly in the case of sex harassment, organizational re-
signaling is needed through formal sex harassment procedures that are well-
advertised and enforced.24' Predictably, lower incidence of sex harassment
complaints has been strongly correlated with having strict policies and
consequences in place.242 Such policies, to be most effective, need to be
supported and communicated by the organization's management and
incorporated into a progressive model of organizational norms and
values.243

Sex harassment will not subside without organizational re-signaling
and institutional reformation, and we cannot assume that these conventions
will change merely because more women are present in, or even lead, the
institution. Rather, a woman's particular stance will largely determine her
leadership style, organizational priorities, and goals.244 The limited body of

240 The importance of this "signaling effect" has arisen, for instance, in the recent

push at Harvard University for institutional attention to faculty diversity in light of the
decline in the number of tenure offers given to women. In a letter to the University's
administration by twenty-six professors regarding this issue, they "highlighted the 'signaling
effect' of leaders' expressed priorities." Tenure and Gender, HARVARD MAG., Jan-Feb.
2005, at 64-66. The letter further states: "'According to many studies on diversity issues,
statements from university leaders that regularly affirm a strong institutional commitment to
diversifying the faculty are central to mobilizing support and energy at the departmental
level .... .' Id. at 66. 1 assert the same argument can be made for affirming a solid
organizational commitment to addressing sex harassment, whether within an academic or
work organization.

241 See Bell & McLaughlin, supra note 212, at 90.

242 See id.

243 See Green, supra note 215, at 678-83 (proposing judicial or administrative

oversight as a way to push for similar employer reforms to address discriminatory work
cultures, highlighting the potential of connecting diversity management efforts to civil rights
issues).

244 See Daniel McGinn, In Good Company, NEWSWEEK, Oct. 24, 2005, at 68-69

(reporting that Xerox offers a more woman-friendly work culture under its female CEO, who
is particularly conscious about the need to support and promote women employees at the
company), available at http://www.msnbc.msn.com/id/9709961/site/newsweek/.



The Organization as a Gendered Entity

research examining the effect of gender on leadership suggests that women
currently do not lead very differently than men.245 Furthermore, many high-
ranking women in sectors such as law, business, and politics have not
publicly pressed for gender equality.246 Genuine changes in organizational
culture will not come about without active deliberation of the organization's
gendered values and practices that have long been embedded according to
traditional masculine preferences. The effect of gender on organizational
behavior, for example, can be seen in the model of feminist organizations,
which tend to embrace a collective and participatory structure that
emphasizes group process in decision-making, in contrast to the formal and
hierarchical structure of male-dominated institutions, although some
feminist groups have incorporated bureaucratic elements to promote
organizational accountability and efficacy.2 47 In rethinking whether the
conventional paradigm of the organization effectively encourages women's
participation, women in the feminist movement established an alternative
model of organizational activity that resisted adherence to male-established
institutional norms-norms which were not initially designed to take into
account women's satisfaction and advancement.

Women who enter long-established organizations, however, face a
greater yet seemingly less obvious challenge. Due to the entrenchment of
the pre-existing culture of an organization, female members may easily
contribute to or reenact the customs of the organization because such
conformity is rewarded. 48 Women are pressured to conform to the
traditional expectations of the organization by downplaying their female-
associated attributes, a cultural demand that Professor Kenji Yoshino calls
"covering. '249 As he insightfully explains, women who enter the work
sphere often receive the message that they need to underemphasize or cover
their female identities to be valued as workers because the standard by

245 Deborah L. Rhode, The Difference "Difference" Makes, in THE DIFFERENCE

"DIFFERENCE" MAKES: WOMEN AND LEADERSHIP 3, 20-21 (Deborah L. Rhode ed., 2003)
(noting that, on the question of whether women have different leadership priorities than men,
"some women [do] some of the time") [hereinafter Rhode, The Difference].

246 Id. at 22-23.

247 See Suzanne Staggenborg, Can Feminist Organizations Be Effective?, in
FEMINIST ORGANIZATIONS: HARVEST OF THE NEW WOMEN'S MOVEMENT 339, 342-43 (Myra

Marx Ferree & Patricia Yancey Martin eds., 1995).

248 See Rhode, The Difference, supra note 245, at 23.

249 See KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS

147-64 (2006) (describing sex-based covering).

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which they are measured is a male-modeled one.25° Yoshino also points out
that women are required to "reverse-cover" at work by retaining some
stereotypically feminine characteristics, leaving them in a double bind
regarding how to successfully negotiate their identities in the work
domain. 25' These covering and reverse-covering directives commonly
imposed by men prevent women from excelling in the organization on their
own terms. Instead, women who meet these demands will be rewarded by
the organization's higher-ups as they continue to abide by the
organization's male-centered conventions and assumptions, rendering it
difficult for other women to campaign for new ways of carrying out the
organization's functions. More than a few women have entered the upper
ranks or were promoted precisely due to their willingness to adjust to the
firm's standards. 2  Some may argue that covering is important, perhaps
even necessary, for a woman to get her foot in the door and demonstrate
that she "fits in" and can do the job as currently defined and expected,
before she can successfully suggest and implement reforms to the
organization's customs. 253 In other words, women may first need to rise to
influential positions within the organization through traditional means to be
able to exert influence and effect change from the inside.

But if women (and progressive men) do not push for change sooner
rather than later, then we should remain concerned that the path to success
is actually a path of inculcation, a route along which women may begin to
find the institution's powerful ways less damaging than they did upon
entry.254 There remains a tension between conforming to the expectations of

250 Id. at 147-49.

251 Id. at 145-64 (describing how women are required to cover and reverse-cover in
a number of ways, including with respect to their appearance, demeanor, and child-care
duties).

252 See Rhode, The Difference, supra note 245, at 23.

253 See Debra E. Meyerson & Maureen A. Scully, Tempered Radicalism: Changing

the Workplace from Within, in READER IN GENDER, WORK, AND ORGANIZATION, supra note
36, at 266 (describing "tempered radicalism" as a practical approach to changing the
organization's processes from the inside through an insider's influence).

254 For instance, in the law school context, one study used survey data to document

how female students during their 1 L year held a more negative view than their male peers of
the adversarial, Socratic, and individualistic mode of law school learning, but by their 3L
year had come to accept the legal academy's masculine-model of a "successful" aspiring
lawyer. See Lani Guinier et al., Becoming Gentlemen: Women's Experiences at One Ivy
League Law School, 143 U. PA. L. REv. 1 (1994).

660 [Vol. 15:3



The Organization as a Gendered Entity

the organization in order to excel within it and retaining one's outsider
perspective and motivation to want to change it.255 Women who rose to the
top "the hard way" may simply expect others to do the same, without seeing
a need to change the process or system at all, based on a belief that success
is attainable if one is willing to work for it without claiming that one's
female gender operates as a disadvantage.256 Thus, women in this camp may
laugh off sexually-oriented jokes or teasing at work and expect other
women to develop "a tough skin" to be seen as serious players within the
organization. Additionally, they may view hostile environment sex
harassment as a trivial workplace problem. All of this demonstrates that
women, with their male colleagues, need to be professionally invested in
issues of gender equity for organizational cultures to change and progress.
In addressing sex harassment, Schultz's prescription to have more women
along the organization's hierarchical ranks is an important step. But this
step must be accompanied by a commitment to reshape the gendered nature
of their organizational cultures to allow substantive as well as numerical
gender equality to become the new norm.

Therefore, an employer should have to show more than only a
gender-balanced workforce to benefit from a lenient evidentiary standard
for sex harassment liability if Schultz's recommendations are to be adopted.
In addition to numerical parity, employers must also demonstrate that they
are working toward accountable organizational evaluation and reformation
to eliminate sex harassment and promote gender equity. Schultz
recommends that "organizations abandon sensitivity training in favor of
incorporating their harassment policies into broader efforts to achieve
integration and equality throughout the firm. 25 7 Instead, such sensitivity
training and deliberative sessions need to be incorporated into integration
efforts to explore the gendered nature of organizational forces. To both
signal and act on this commitment, an employer might create an internal
gender task team or hire an external consultant to collect data regarding
existing sex harassment and other workplace policies that particularly affect
women employees and study how these policies function in practice. As
demonstrated in the recent situation at Boalt Hall, common problems that
organizational members encounter in raising incidents of sex harassment

255 See Rhode, The Difference, supra note 245, at 33; see also Anna Quindlen, The

Value of the Outsider, NEWSWEEK, Oct. 24, 2005, at 86, available at http://www.msnbc.msn.
com/id/9707660/site/newsweek/.

256 Rhode, The Difference, supra note 245, at 23.

257 Schultz, supra note 3, at 2071.

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Columbia Journal of Gender and Law

include lack of clarity in policy, limited access to information, and lack of
education on this issue. In addition to the specific organizational policies in
place, the general workplace climate for women should also be critically
examined for an overall understanding of the organizational culture. In
crafting both short-term and long-term recommendations to improve the
recruitment, promotion, and retention of qualified women, the gender task
team or consultant should confer with organizational leaders and employees
at all levels to determine how best to meaningfully advance the interests of
women employees within the organization. Consulting a cross-section of
the organization is key to the effort, because the various individuals who
make up the organizational entity need to feel invested in the project in
order for them to be motivated to implement the final recommendations
adopted by the organization's decision-makers. The new example of
organizational culture, to be successfully executed, must be modeled by
organizational leaders and reinforced from all directions and among all
ranks through informative workshops to foster communication and
understanding.

IV. CONCLUSION

Although Professor Schultz claims that the anti-sex harassment
movement to regulate sexuality in the workplace is reminiscent of classical
management's goal of keeping all things nonrational outside of the work
organization, she overemphasizes management's impulse to maintain a
work environment free of all passion or human elements, and likewise
overstresses the feminist movement's alignment with management. In order
to advocate for the rights of women employees, feminists pressed for the
recognition of sex harassment as a problem at work, undermining Schultz's
depiction of the feminist movement as allying its mission with
management's agenda. Further, contrary to the picture that Schultz
suggests, male-only organizations display sexualized cultures-
notwithstanding women's absence from these settings-because the
organization is a gendered space in which masculinity and male-oriented
sexuality have taken root and grown. Women's entry into the organization
may have changed the targeting of sexual expression, but women did not
introduce sexual behavior. An examination of all-male institutions
graphically illustrates the highly sexualized cultures of these organizations,
demonstrating that masculine-driven sexuality thrives whether or not
women are in their company.

Schultz's sexuality-privileged organizational model too easily
discounts the damaging legacy of masculine traditions of work culture, and
neglects to give appropriate weight to the real and anticipated harms that

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2006] The Organization as a Gendered Entity 663

stream from a laissez-faire workplace policy on sexual behavior and
relations. Although Schultz's recommendation for gender integration at
work is laudable as it seeks to remedy women's structural weakness that
contributes to sex harassment, it is uncertain whether her number-specific
guidelines can or should be implemented by the courts. Further, gender
integration within the organization as a lone prescription is inadequate in
light of our understanding of the organization as a gendered entity that has
been created and maintained by traditional masculine norms and
expectations. Gender equality in terms of numerical parity at work is
needed, but must be supplemented by organizational re-signaling and
reformation that is led and implemented by a committed leadership seeking
to substantially advance the interests of all its organizational members.