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This article will appear in the Boston University Law Review in June 2007

Abstract

After overcoming the obstacles to advancement, women who reach managerial positions are still subject to harassment. At times, this harassment comes from subordinates. The incidence of those employees with “lesser” power harassing those with more power presents a dilemma for traditional thinking on sexual harassment and for the developing judicial doctrine of sexual harassment. It is well-established that Title VII protects employees from discrimination because of sex. Yet, it is unclear whether the statute reaches as far as contra-power harassment.

Traditionally, sexual harassment was considered an abuse of power in the workplace. If this is true, how can female supervisors be harassed? Or are they harassed but not within the meaning of employment discrimination law? Is such behavior simply the “price of success”? When women have organizational power, how can they be harassed and why should the law protect them if they do not protect themselves? The answers to these questions necessitate the consideration of differing conceptions of power and the expectations for the exercise of such power. Accepting contra-power harassment as an actionable claim requires courts to conceive of “power” in a different manner than a hierarchical/organizational power. I argue in this article that courts should conceive of power in a socio-cultural manner and accept contra-power harassment claims.

A contra-power harassment claim is limited to a hostile environment claim in that subordinates do not have the power to grant or deny tangible employment benefits. Two of the elements of a hostile environment claim require special consideration. First, a plaintiff must prove that the behavior at issue is severe or pervasive so as to affect a term, condition, or privilege of employment. An analysis of the case law shows that courts are downplaying the severity of behavior when the victim of the harassment is a supervisor. I argue that courts should not consider the organizational relationship of the target and the harasser when deciding if the workplace has been rendered hostile. In doing so, the courts are ignoring the importance of social-cultural power which allows lower status men to harass women at work. By exercising their societal power, men are able to harass their supervisors and to change the terms and conditions of women’s employment.

However, the organizational relationship is important for determining employer liability. The standard to hold the employer liable for harassment by its employees turns on the organizational status of the harasser and the employer’s response to the harassment. I argue that a negligence standard is the appropriate standard for contra-power harassment claims. In applying this standard, courts should not presume that women who have risen to the rank of supervisors are incapable of choosing to exercise their power simply by virtue of their status as women. However, courts should not require the supervisor-target to exercise discipline preemptively. In other cases of sexual harassment, a complaint of sexual harassment puts the employer on notice. There is no compelling reason to create a different rule here. Supervisors should be penalized for failing to exercise power only when the employer explicitly authorizes the exercise of such power.

Disciplines

Law and Gender

Date of this Version

October 2006

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