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