73 Fla. L. Rev. 95 (2021)
View the article via pdf

Categories

Abstract

In Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme
Court recognized same-sex sexual harassment as a cognizable claim of
sex discrimination under Title VII of the Civil Rights Act of 1964. At the
time, many scholars found this recognition to be significant and
important, but some also argued that the Court provided an incomplete
analysis regarding the meaning of discrimination “because of sex.”
Specifically, some scholars argue that the Court’s opinion reinforces the
sexual desire paradigm in the analysis of sexual harassment cases.
Building upon this critique, this Article focuses specifically on the
harassment of men who generally are perceived as gender-conforming.
In doing so, it uses masculinities theorization to argue that some
workplace harassment against these men, which courts have been
inclined to treat as mere “horseplay,” is actually discrimination based on
sex. Examining same-sex harassment cases through this masculinities- modified lens, this Article concludes that this broader understanding of
sexual harassment is important because men who are perceived as
gender-conforming are entitled to more legal protection than they are
currently experiencing. Furthermore, it raises the question of whether the
masculinity competition that leads to harassment among gender-conforming men is actually the epicenter of all sexual harassment. If this
is the case, it seems that an important step toward stopping the harassment
of women (and men who are perceived as gender-nonconforming) is to
stop gender-conforming men from harassing gender-conforming men.