The Culture of Compliance: The Final Triumph of Form over Substance in Sexual Harassment Law

Abstract

Why does sexual harassment persist despite nearly three decades of attempts to eliminate it? While courts have developed a comprehensive set of legal rules governing workplace harassment, the incidence of harassment has not changed. That is true, in part, because the rules of employer liability for harassment are calculated to ensure that employers adopt basic policies and procedures with respect to workplace harassment, not, surprisingly, to ensure that they actually prevent it. In both legal and extralegal discourse little or no attempt has been made to connect the legal regime to the actual problem of harassment.

This Article remedies this inattention by reevaluating legal regime in light of an emerging body of social science literature addressing the causes of harassment, the effectiveness of various preventative measures, and the substantive and procedural adequacy of internal grievance procedures. The reevaluation demonstrates that the legal regime has overemphasized compliance with prophylactic rules at the expense of effecting real change in preventing the problem of sexual harassment in the workplace. Employers who play a significant role in maintaining a work environment that is either hostile or hospitable to sexual harassment are rewarded for paying lip service to the regime by enacting standard issue policies and procedures, regardless of whether those efforts actually reduce harassment or compensate victims. Thus, the triumph of form over substance in sexual harassment law occurs.

The Article is divided into three Parts. Part I briefly describes the continuing problem of sexual harassment and summarizes case law relating to employer liability for sexual harassment. It then describes the incentives the law creates for employers, victims, and harassers, and explains how each group responds to these incentives. Part II explores whether the preventative measures spurred by the legal regime serve Title VII's goal of deterring harassment and preventing harm. Part III explores whether corrective measures induced by the legal rules adequately serve Title VII's companion goal of compensating victims for acts of discrimination.

The Author concludes with some suggestions for reform, designed to refocus legal rules and workplace norms around successful prevention of harassment and compensation of victims as opposed to simple, blind rule compliance. Specifically, she recommends that the affirmative defense presently adopted by the courts be abolished by Congress, resulting in a standard of pure automatic liability. Short of that, she suggests that punitive damages should be available regardless of an employer's good-faith efforts to prevent harassment, if, in fact, egregious harassment occurs on its watch.

Keywords: Sexual Harassment Law, Workplace Harassment, Title VII, Employer Liability, Gender Discrimination, Sexual Abuse, Workplace, Sex Discrimination