THAT’S WHAT HE SAID: The Office, (Homo)Sexual Harassment, and Falling Through the Cracks of Title VII

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Sasha Andersen

This article uses The Office as a platform to explore the history of Title VII and illustrate the puzzling rationale for why homosexuals fall through the cracks of Title VII and are not protected from workplace harassment. This article analyzes the way Title VII would apply to Oscar’s situation and shows how bringing a seemingly clear-cut case of sexual harassment would be unsuccessful despite common-sense perceptions of the law. In exposing the way Title VII law is inconsistent with common sense, this article has two objectives. First, it probes the history of Title VII jurisprudence and demonstrates that homosexuals have no recourse under Title VII—that is, unless they act “gay” enough or the harasser is actually homosexual. Understanding this reality exposes a more problematic logic in Title VII law: homosexual orientation is not protected, but others are always protected from homosexuals.

Second, the article examines the scholarship surrounding Title VII and other areas of the law to suggest that Title VII’s paradox is rooted in the historical anxiety about homosexuality. This article argues that the solution to this problem is not to pass another law, i.e., the Employment Non-Discrimination Act (as it has been languishing in Congress since 1994), but for courts to stop participating in the legal scheme to isolate prejudice about sexual orientation from prejudice about sex. Accomplishing this paradigm shift would easily allow Title VII to protect homosexuals from workplace harassment and at least one area of the law can regain coherence.

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