Sexual Harassment 2.0
50 Pages Posted: 21 Oct 2009 Last revised: 17 Mar 2016
Date Written: October 21, 2009
Sexual harassment is a complex and evolving practice. The emergence of sexually discriminatory behavior in cyberspace is only one of the most recent and most striking examples of the phenomenon’s increasing complexity. Sexual harassment law, however, has not kept pace with this evolution. Discrimination law has not been adequately “updated” to address new and amplified practices of sex discrimination. Its principal limitation is that it assumes sexual harassment to be a “single-setting” phenomenon, i.e. that the harassing activity and its resulting harms occur in the same protected setting. By contrast, this Article proposes a “multiple-setting” conception of sexual harassment that recognizes how harassing activity can take place in one setting – for instance, an online message board – and have effects in another setting – for instance, in a victim’s place of employment. In order to address multiple-setting harassment, a third-party liability regime similar to that of traditional sexual harassment law should be introduced into other contexts. In the context of online abuse, liability for sexual harassment should attach to website operators. This will create an incentive for website operators to adopt preemptive, self-regulatory measures against online sexual harassment, much as employers and school administrators have done in the offline setting.
Keywords: sexual harassment, Title VII, Title IX, free speech, discrimination, cyberspace, online harassment, cyber harassment, Internet harassment
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