Sexual Harassment: The Promise & Limits of a Feminist Cause of Action

Abstract

This chapter explores the origins, development, and current status of workplace sexual harassment law. Sexual harassment law owes its genesis to a combination of grass roots feminist organizing and legal feminist theorizing. After initial losses in the courts, feminist lawyers and their clients scored significant victories in the court system. Employers and those accused of discrimination soon fought back, including by participating in the development of an extensive system of training and anti-sexual harassment policies that have not proven helpful to targets of sexual harassment. Feminist legal scholars have offered critiques of the courts’ decisions, taking a variety of approaches to increasing the law’s efficacy and extending its reach beyond women in the workplace to encompass the experiences of men, women of color, and sexual minorities. Yet, plaintiff’s using Title VII of the Civil Rights Act of 1964, the main federal anti-discrimination statute applicable to sex discrimination in employment, continue to find themselves thrust out of court due to formalistic rules developed in the court system. This has led other scholars to suggest different legal approaches to address this persistent and disturbing form of workplace discrimination. Whether current grass roots campaigns like the #MeToo movement will prove more effective than prior legal efforts remains to be seen.

Keywords: sexual harassment, feminism, feminist legal theory, Title VII, sex discrimination, gender discrimination, sexual orientation discrimination

JEL Classification: J71