73 Fla. L. Rev. F. 1 (2023)
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Response to Professor Bailey, Male Same-Sex “Horseplay”: The Epicenter of Sexual Harassment?

Kimberly Bailey’s fascinating article, Male Same-Sex “Horseplay”: The Epicenter of Sexual Harassment?, seeks to expose and to further analyze harassment of women by paying attention to the patterns and meaning of male-male harassment between straight men. By the sophisticated use of masculinities theory and research, she seeks to expand not only the boundaries of male-male harassment but also the linkages between male-male and male-female harassment. Sexual harassment doctrine as constructed thus far excludes certain conduct as not discriminatory. As Professor Bailey notes, in Oncale v. Sundowner Offshore Services, Inc., the Court stated that it was not creating a “general civility code.” Professor Bailey seeks to carve out some male on male “horseplay” as discrimination that should be actionable under sexual harassment theory rather than tolerated or understood as non-discriminatory. More broadly, Professor Bailey suggests male on male harassment is central to all sexual harassment.

I applaud this wonderful work. In this essay, I advocate amplifying and expanding it further. I argue:
1. All horseplay is gendered and should be actionable discrimination.
2. Masculinities analysis is essential not only to harassment doctrine but workplace discrimination doctrine broadly. It should be used to break down structures and systems as well as workplace culture, by gender, race, and intersectionally.
3. Masculinities analysis exposes the pervasiveness of hierarchy, and thus leads to broader interlocking contexts of inequality beyond the workplace.

Professor Bailey’s article focuses on harassment by straight men of straight men, particularly by engaging in “horseplay,” conduct typically excluded from legal definitions of sexual harassment under Title VII. The focus on the most privileged male group and this category of conduct is a valuable lens from which to understand how masculinity functions more broadly.

Professor Bailey’s article opens the door to several additional implications. First, this perspective invites exploring and challenging of what has been excluded from conduct examined within the framework of harassment doctrine. Why is “horseplay” excluded? Is this “male play,” and if so, what excludes it from analysis? The origin of these terms and their cultural use point us toward some obvious, gendered norms and tolerances, as well as gendered assumptions of who is involved. How does changing the race or gender––or both––of who is involved in conduct labeled this way change the analysis? Second, this expanded perspective of sexual harassment invites a broader analysis of gendered work and gendered workplaces. The operation of masculinities is relevant not only to harassment but also to systems and structuring. These include sex segregation in work, the pay gap, and intersectional segregation that replicates intersectional hierarchies. They also include patterns within specific work, like the practice of law, that remain stubbornly “male.” Third, the expanded use of masculinities analysis, in harassment doctrine and more broadly in all workplace contexts, powerfully suggests masculinities analyses’ usefulness to uncover and expose patterns of inequality elsewhere. Masculinities insights are critical, for example, to confronting white supremacy, challenging the reassertion of power over women’s bodies post-Dobbs, and upholding multiracial democracy.
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