Document Type

Article

Publication Date

1999

Abstract

Part I of this article briefly examines some of the drawbacks and inconsistencies of Title VII sexual harassment jurisprudence and shows that Title VII does not provide an adequate framework for understanding many common forms of workplace harassment. Title VII is unquestionably a critical means of fighting against workplace discrimination; however, by emphasizing discrimination at the expense of dignity, the Title VII workplace harassment paradigm provides an incomplete understanding of the wrongs of workplace harassment.

Part II of this article asserts the importance of an approach to sexual harassment that distinguishes between the nature of the harm of workplace sexual harassment (a dignitary harm) and the context in which the harm occurs (a context of discrimination against women). A pluralistic understanding of workplace harassment permits the provision of legal remedies for workers of any sex or sexual orientation who suffer from abusive treatment (whether sexual or nonsexual in nature), while still recognizing that workplace harassment occurs in patterned ways and has historically operated to exclude women, in particular, from equal access to social, political, and economic power. While Title VII highlights the discriminatory--and often sexist--motives and patterns in many cases of workplace harassment, harassment is not a matter of concern only when "sexual." Further, the claim that workplace harassment is a "group harm" that only affects women is too simplistic. First, as Vicki Schultz has eloquently argued, not all discriminatory workplace harassment of women is "sexual" in nature. Second, men as well as women can be subjected to harassment and abusive treatment at work. A pluralistic understanding of workplace harassment must reflect these insights.

Part III of this article contends that common-law tort causes of action provide a promising way to address the dignitary harm element of "classic" cases of sexual harassment, those involving male harassers and female victims. Twenty years ago, feminist scholars such as MacKinnon considered--and rejected--this approach. Dismissing a tort approach in this manner, while understandable in 1979, now does a disservice to women and other harassment victims. Moving beyond "classic" cases of sexual harassment, Part III of this article also argues that common-law tort causes of action contain the germ of a more general right to be free of severe dignitary harm in the workplace and that the changing social meaning of work should be deemed to create special duties for employers in protecting all workers from workplace harassment, sexual and nonsexual.

Part IV defends this approach against several possible objections. These objections include the "group harm" objection, "the rigid courts" objection, the "liability and preemption" objection, and the "civility code" objection.

Finally, Part V demonstrates why a pluralistic understanding of workplace harassment would benefit all workers while strengthening feminist efforts to protect women from workplace discrimination. A pluralistic approach to workplace harassment--one that combines the use of Title VII, where appropriate, with tort causes of action--has three important benefits. First, such a pluralistic approach allows for legal remedies for the many workers who experience severe harassment on the job, but who would be hard-pressed to assert that their harassment was "because of sex," as required by even the most expansive reading of Title VII. Second, a pluralistic approach keeps the primary focus of Title VII where it should be: on addressing the problem of widespread workplace discrimination against members of less powerful groups, such as racial, ethnic, and religious minorities, and, of course, women. Third, grounding understanding of the sexual harassment of women in a notion of dignitary harm as well as in a discrimination paradigm makes a critical political and philosophical point: The workplace harassment of women is wrong not because women are women, but because women are human beings and share with all other human beings the right to be treated in the workplace with respect and concern.

Publication Citation

88 Geo. L.J. 1-64 (1999)

Download

Share

COinS