![handle is hein.journals/flrf73 and id is 1 raw text is: EXPANDING THE FRAME: USING MASCULINITIES ANALYSES
TO CHALLENGE GENDER AND RACE HIERARCHY
Nancy E. Dowd
[C]ourts and juries [should] not mistake ordinary socializing in the
workplace such as male-on-male horseplay or intersexual flirtation
for discriminatory 'conditions of employment. '
Kimberly Bailey's fascinating article, Male Same-Sex Horseplay :
The Epicenter of Sexual Harassment?2 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.3 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.4 Sexual
harassment doctrine as constructed thus far excludes certain conduct as
not discriminatory.5 As Professor Bailey notes, the Court stated in Oncale
that it was not creating a general civility code.6 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.7 More broadly, Professor Bailey
suggests male on male harassment is central to all sexual harassment.'
Understanding and eliminating one would profoundly affect the other:
[I]f men no longer felt the need to maintain their spots in the masculine
hierarchy, they would have no reason to harass each other or women
to assert their masculinity. In other words, while the gendered
relationship among gender-conforming men is often a hidden
component of the systemic harassment of women and gender-
nonconforming men, it is time to consider whether this competition
among gender-conforming men is actually the epicenter of all sexual
harassment. If it is the epicenter, the response to the harassment of
women and men perceived as gender-nonconforming men must
* UF Distinguished Professor and David Levin Chair in Family Law, Emeritus. Eric
Petterson provided valuable research assistance for this Essay.
1. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
2. Kimberly D. Bailey, Male Same-Sex Horseplay: The Epicenter of Sexual
Harassment?, 73 FLA. L. REv. 95 (2021).
3. Id. at 95.
4. Id.
5. See id. at 97.
6. Id. at 107 (quoting Oncale, 523 U.S. at 80).
7. This Part argues that some of the harassment that is targeted at men who are perceived
as gender-conforming is not merely male 'horseplay' that does not merit legal recognition;
instead, it sometimes is discrimination based on sex. Bailey, supra note 2, at 119.
8. Id. at 99-100.
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