Was Sexual Harassment Law a Mistake? The Stories We Tell
128 The Yale Law Journal Forum 152 (2018).
18 Pages Posted: 25 Jun 2018
Date Written: 2018
Abstract
It may seem heresy in this #MeToo moment to ask whether sexual harassment law was a mistake — it has provided thousands of plaintiffs over the past more than thirty years their day in court, a chance to tell their stories of harassment as discrimination in violation of Title VII of the federal Civil Rights Act. But sexual harassment law as it has developed negatively affects the larger project of reducing harassment and discrimination in work in a number of ways. In this Essay, I focus on one of those ways: harassment law today constrains the stories we tell about harassment and discrimination, to ourselves and to others, and it dampens considerably our calls for meaningful reform. Drawing from publicly available court filings in several well-known Supreme Court cases, I tell the stories that the plaintiffs might have told and, in at least some of the cases, tried to tell. And I show how the Supreme Court tamped down those stories and in doing so limited their power (and the power of many other harassment stories told in courtrooms across the country since) to trigger meaningful change. It turns out that we will need to change the law, not just public perception, if the #MeToo movement is to have a lasting effect on our work environments.
Keywords: sex discrimination, gender discrimination, #MeToo, sexual harassment, Title VII, employment law, United States Supreme Court
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