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21 Duke J. Gender L. & Pol'y 1 (2013-2014)

handle is hein.journals/djglp21 and id is 1 raw text is: Divorcing Sexual Harassment from Sex: Lessons from the French
One of the challenges in establishing the existence of actionable sexual
harassment under Title VII of the Civil Rights Act of 19641 has been to prove that
the harassing conduct, even when it is explicitly sexual, has occurred because
of... sex-a requirement for actionable sexual harassment. Because sexual
harassment in the context of the American workplace is prohibited as a form of
discrimination on the basis of sex, harassment that is not seen as fitting within
the framework of sex discrimination is not generally considered to be unlawful.2
Accordingly, the courts have insisted that the harassment to which targets are
subjected be shown to have been motivated by the sex or gender of that target,3
and not by other considerations, such as actual or perceived sexual orientation4
Copyright @ 2014 by L. Camille Hobert
* Carter C. Kissell Professor of Law, Michael E. Moritz College of Law at the Ohio State
University. I wish to acknowledge the support of the Center for Interdisciplinary Law and Policy
Studies at the Michael E. Moritz College of Law of The Ohio State University, which provided
research funding for this project, and particularly its director, Professor Katherine Federle. I also want
to thank Isabelle Daugareilh and Loc Lerouge of COMPTRASEC, the Centre de Droit Compare du
Travail et de la Sicurit6 Sociale (Centre for Comparative Labour and Social Security Law) at the
Universit6 Montesquieu-Bordeaux IV, France, for their hospitality during my research stay and their
helpfulness in facilitating my research of French law of moral and sexual harassment.
1. 42 U.S.C. § 2000e-2000e-17 (2006 & Supp. 2010).
2. It is true that the harassing conduct that is not considered to be based on sex might violate
other legal prohibitions, such as the tort restrictions on assault and battery or intentional infliction of
emotional distress, but harassing conduct that is not considered to be based on sex does not violate
Title VII's prohibition on sexual harassment.
3. In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the United States Supreme
Court stressed:
Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed
only at discriminat[ion] ... because of ... sex. We have never held that workplace
harassment, even harassment between men and women, is automatically discrimination
because of sex merely because the words used have sexual content or connotations. The
critical issue, Title VIIs text indicates, is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the other sex are
not exposed.
Id. at 80 (emphasis in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J.,
4. In the United States, discrimination on the basis of sexual orientation is generally not
prohibited as a matter of federal law, because it is not expressly prohibited, nor is it considered to be
a form of sex discrimination under Title VII, and is prohibited in only a minority, though a growing
number, of states. See L. CAMILLE HEBERT, EMPLOYEE PRIVACY LAW 9-4 - 9-434 (Thomson Reuters
2012) (reviewing the history and attempted justifications of discrimination on the basis of sexual
orientation, as well as case law and statutory authority related to such discrimination, including
challenges under Title VII of the Civil Rights Act of 1964, which have been rejected by most courts;


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