Document Type

Article

Publication Date

2023

Abstract

In predominately male workplaces, sexualized “horseplay” is common. While this type of conduct can be a tool of gender subordination, it also is a tool for fostering camaraderie and collegiality among co-workers. In other words, some workers, including women, find that engaging in sexual horseplay is necessary in order to “fit in.” This Article critiques the failure of courts to appreciate the peer pressure to “fit in” when they analyze Title VII sexual harassment cases. This oversight is especially evident when courts try to determine whether a plaintiff found particular sexual conduct to be “unwelcome.” If a plaintiff voluntarily engages in instances of sexual conduct in order to fit into her workplace and in order to advance in her career, it is quite likely that a court will fail to determine that any other sexual conduct that she experienced was “unwelcome,” even with respect to conduct that targeted and demeaned her in ways that no one would actually welcome. This Article urges courts to apply a more nuanced approach, and it highlights the types of evidence that courts need to be examining with more scrutiny in order to determine whether conduct was “unwelcome” within the complicated dynamics that occur among genders in the workplace. The focus of this Article is female plaintiffs in male-dominated workplaces. But given the centrality of male-on-male horseplay within the systemic practice of workplace sexual harassment, the approach this Article advocates ultimately will benefit workers of all genders in all workspaces. In order for courts to engage in this more nuanced analysis, however, plaintiffs’ lawyers also need to be aware of the pressure to fit in as they engage in discovery and strategize about the best evidence and arguments to present in support of their clients’ claims.

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