Perceiving Subtle Sexism: Mapping the Social-Psychological Forces and Legal Narratives that Obscure Gender Bias

45 Pages Posted: 23 Jul 2008  

Deborah L. Brake

University of Pittsburgh - School of Law

Date Written: 2007

Abstract

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chosen institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct from and superior to a search for discriminatory intent. The final section offers a brief analysis of what Davis could mean for discrimination law more broadly if courts seriously applied the insights embedded in the Davis case.

Keywords: Title IX, sexual harassment, peer sexual harassment, student harasser, discrimination, school liability, civil rights, gender equity, hostile environment

Suggested Citation

Brake, Deborah L., Perceiving Subtle Sexism: Mapping the Social-Psychological Forces and Legal Narratives that Obscure Gender Bias (2007). U. of Pittsburgh Legal Studies Research Paper; Columbia Journal of Gender and Law, Vol. 16, 2007. Available at SSRN: https://ssrn.com/abstract=1169582

Deborah L. Brake (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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