How Sexual Harassment Law Failed Its Feminist Roots

HOW SEXUAL HARASSMENT LAW FAILED ITS FEMINIST
ROOTS
L. CAMILLE HE
´BERT*
ABSTRACT
The dawn of sexual harassment law showed so much promise. But in spite of
the hopefulness with which the legal recognition of sexual harassment was
greeted, the intervening years have shown that the law of sexual harassment
has not lived up to its potential. Rather than creating a cause of action empow-
ering women to challenge degrading employment practices that have limited
their workplace opportunities, courts have instead recognized a number of ele-
ments of a cognizable claim of sexual harassment that have effectively sanc-
tioned the continuance of the conduct while blaming women for its occurrence.
The judicial imposition of the elements of a sexual harassment claim and the ju-
dicial gloss placed on those elements have turned the cause of action for sexual
harassment into something far different than the feminists who worked for its
recognition envisioned. The courts have turned that promise into a cause of
action that seeks to protect the workplace from women who would make claims
of sexual harassment, rather than a cause of action that seeks to protect women
from discriminatory workplaces. This article explores how some of that lost
promise might be recaptured, first through a reshaping of the law by the courts
and legislatures within the frame of the existing structure of the cause of action,
explaining how the courts could apply the existing elements of the cause of
action more consistently with the purpose of Title VII to assure women of the
right to workplace equality. The article then imagines a more fundamental
reshaping of the law of sexual harassment, by exploring what the law of sexual
harassment might look like if it were designed by a feminist, forged by an over-
riding concern about ensuring women’s workplace equality rather than protect-
ing existing workplace norms.
I. INTRODUCTION .......................................... 58
II. HOW SEXUAL HARASSMENT LAW LOST ITS WAY . . . . . . . . . . . . . . . . . 61
A. TURNING RESPONSIBILITY FOR SEXUAL HARASSMENT ON ITS HEAD:
THE “UNWELCOMENESS” REQUIREMENT .................... 61
B. THE SEARCH FOR ANY OTHER MOTIVATION: THE “BECAUSE OF . . .
SEX” REQUIREMENT .................................. 73
* Carter C. Kissell Professor of Law, Michael E. Moritz College of Law, The Ohio State University. I
would like to thank Amna Akbar, Martha Chamallas, Marc Spindelman, and Chris Walker for the
helpful comments that they provided on drafts of this article, as well as the participants in the faculty
workshop series at the Moritz College of Law, at which I presented this article in September 2020.
© 2021, L. Camille He
´bert.
57
C. THE RIGHT TO BE FREE FROM ONLY THE MOST HORRIFIC
HARASSMENT: THE “SEVERE OR PERVASIVE REQUIREMENT ...... 77
D. HARASSMENT WITHOUT RESPONSIBILITY: STANDARDS FOR
INDIVIDUAL AND EMPLOYER LIABILITY ..................... 87
III. HOW SEXUAL HARASSMENT LAW MIGHT REGAIN SOME OF ITS LOST
PROMISE .............................................. 101
A. ELIMINATION OF THE UNWELCOMENESS REQUIREMENTS AND PROPER
INTERPRETATION OF THE SUBJECTIVENESS REQUIREMENT . . . . . . . . . 102
B. CORRECT APPLICATION OF THE “BECAUSE OF SEX” REQUIREMENT . . 103
C. ELIMINATING OR TRANSFORMING THE “SEVERE OR PERVASIVE
REQUIREMENT ...................................... 106
D. REDEFINING THE STANDARDS FOR INDIVIDUAL AND EMPLOYER
LIABILITY ......................................... 108
IV. HOW A FEMINIST MIGHT STRUCTURE A CAUSE OF ACTION FOR SEXUAL
HARASSMENT........................................... 111
A. THE ROLE OF “SEXIN A SEXUAL HARASSMENT CLAIM . . . . . . . . . 112
B. ABANDONING THE ELEMENTS APPROACH TO SEXUAL HARASSMENT
CLAIMS........................................... 119
C. ASSIGNING RESPONSIBILITY FOR SEXUAL HARASSMENT .......... 121
V. CONCLUSION ........................................... 123
“[I]t may be too soon to know whether the law against sexual harass-
ment will be taken away from us or turn into nothing or turn ugly in
our hands.”
—Catharine MacKinnon
1
I. INTRODUCTION
The dawn of sexual harassment law showed so much promise. The develop-
ment of sexual harassment law in the United States can be tied directly to feminist
scholars,
2
particularly to the work of Professor Catharine MacKinnon, who dem-
onstrated that sexual harassment as practiced in the workplace was a form of sex
1. Catharine A. MacKinnon, Sexual Harassment: Its First Decade in Court, in FEMINISM
UNMODIFIED: DISCOURSES ON LIFE AND LAW 103, 105 (1987).
2. See Martha Chamallas, Writing About Sexual Harassment: A Guide to the Literature, 4 UCLA
WOMENS L.J. 37, 37–38 (1993) (“The legal claim for sexual harassment is notable for its distinctively
feminist origins. Born in the mid-1970s, the term was invented by feminist activists, given legal content
by feminist litigators and scholars, and sustained by a wide-ranging body of scholarship generated
largely by feminist academics.”). See also MacKinnon, supra note 1, at 103 (“Sexual harassment, the
legal claim—the idea that the law should see it the way its victims see it—is definitely a feminist
invention.”).
58 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXII:57
discrimination prohibited by Title VII of the Civil Rights Act of 1964.
3
More
than a decade after Congress made it an unlawful employment practice to dis-
criminate with respect to terms and conditions of employment “because of . . .
sex,” feminist scholars began to argue, and courts began to agree, that those few
words provided a statutory basis for making unlawful the prevalent and denigrat-
ing practices to which women long had been subjected in their workplaces.
4
The
role that feminist scholars and feminist legal theory played in the initial develop-
ment of sexual harassment law has been well documented.
5
The recognition of a
cause of action for sexual harassment by the United States Supreme Court in
1986 was viewed, at least by some, as a watershed moment in women’s fight for
equality.
6
But in spite of the hopefulness with which the legal recognition of sexual har-
assment was greeted, the intervening years have shown that the law of sexual har-
assment has not lived up to its potential. Rather than creating a cause of action
that empowers women to challenge employment practices that have subjected
them to degrading treatment while limiting their workplace opportunities, courts
have instead recognized a number of elements of a cognizable claim of sexual
harassment that have effectively sanctioned the continuance of such conduct,
while blaming women for its occurrence.
I do not mean to suggest that all aspects of sexual harassment law have been a
failure for women or workers generally. The recognition of the cause of action
itself has led to some benefits for workers; the failure of courts to recognize the
cause of action would have been quite harmful to attempts to prevent sexual har-
assment. Additionally, employers have become more aware of the harms of sex-
ual harassment and have sometimes taken active steps to prevent or lessen the
existence of sexual harassment in the workplace. This article, however, focuses
on the failures of sexual harassment law.
3. See generally CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE
OF SEX DISCRIMINATION (Yale Univ. Press 1979). In her book, Professor MacKinnon demonstrates that
sexual harassment meets the definition of sexual discrimination under an inequality approach, as a
practice that reinforces the social inequality of women, and under a differences approach, as singling out
women for particular treatment. Id. at 174–206.
4. See Nadine Taub, Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment
Discrimination, 21 B.C. L. REV. 345, 361–77 (1980) (explaining why sexual harassment is a form of
sexual stereotyping and therefore a form of sex discrimination).
5. A history of the development of the law of sexual harassment, and the role that Black women as
litigants played in the development of the law, is discussed in Catharine A. MacKinnon, The Logic of
Experience: Reflections on the Development of Sexual Harassment Law, 90 GEO. L.J. 813 (2002). A
discussion of the role of feminist legal theory in the development and recognition of sexual harassment
law is contained in Katherine M. Franke, What’s Wrong with Sexual Harassment?, 40 STAN. L. REV.
691, 698–729 (1997).
6. See Stuart Taylor, Jr., Sexual Harassment on Job is Illegal, N.Y. TIMES, June 20, 1986, at A1
(quoting Ellie Smeal, President of the National Organization for Women, calling the decision “on
balance a victory for working or employed women”); Al Kamen, Court Rules Firms May Be Liable for
Sexual Harassment, WASH. POST, June 20, 1986 (noting that the Meritor decision has been “hailed by
women’s groups as a major victory”).
2021] HOW SEXUAL HARASSMENT LAW FAILED ITS FEMINIST ROOTS 59

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT