What's Reasonable Now? Sexual Harassment Law after the Norm Cascade

86 Pages Posted: 25 Jun 2019 Last revised: 3 Jul 2019

See all articles by Joan Williams

Joan Williams

University of California Hastings College of the Law

Jodi L. Short

University of California Hastings College of the Law

Margot Brooks

Center for WorkLife Law

Hilary Hardcastle

University of California, Hastings College of the Law

Tiffanie A. Ellis

University of California, Hastings College of the Law

Rayna Saron

affiliation not provided to SSRN

Date Written: February 26, 2019

Abstract

This Article asks whether Brooks v. San Mateo and four other appellate hostile-environment sexual harassment cases that have each been cited more than 500 times remain good precedent in the light of the norms cascade precipitated and represented by #MeToo. The analysis is designed to interrupt the “infinite regression of anachronism,” or the tendency of courts to rely on cases that reflect what was thought to be reasonable ten or twenty years ago, forgetting that what was reasonable then might be different from what a reasonable person or jury would likely think today. These anachronistic cases entrench outdated norms, foreclosing an assessment of what is reasonable now. To interrupt this infinite regression, this Article pays close attention to the facts of the cases-in-chief discussed below enabling the reader, and the courts, to reassess whether a reasonable person and a reasonable jury would be likely to find sexual harassment today.

Keywords: sexual harassment, Title VII, norm cascade

Suggested Citation

Williams, Joan and Short, Jodi L. and Brooks, Margot and Hardcastle, Hilary and Ellis, Tiffanie and Saron, Rayna, What's Reasonable Now? Sexual Harassment Law after the Norm Cascade (February 26, 2019). 2019 Mich. St. L. Rev. 139 (2019). Available at SSRN: https://ssrn.com/abstract=3342616

Joan Williams (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Jodi L. Short

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Margot Brooks

Center for WorkLife Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Hilary Hardcastle

University of California, Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Tiffanie Ellis

University of California, Hastings College of the Law ( email )

200 McAllister St
San Francisco, CA 94102
United States

Rayna Saron

affiliation not provided to SSRN

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