Abstract

In the more than twenty years since the Supreme Court created Title VII’s sexual harassment protections, judges and feminist legal scholars have struggled to create a clear conceptual account of the harm sexual harassment inflicts. Many courts and scholars were content to justify sexual harassment law by arguing that it vindicates women’s interest in workplace equality; however, several feminist legal scholars revealed the inadequacy of this account by the late 1990s, suggesting instead that harassment should be understood as inflicting dignitary harm. The failure to reach consensus about sexual harassment law’s purpose appeared without significant consequence until courts began developing sexual harassment law for non-workplace settings. Operating without clear conceptual mooring posts, courts have created narrow, cabined sexual harassment protections governing settings like prisons, often without principled justifications for doing so. To address this problem, this Article argues that we should return to the dignity-based account of sexual harassment law introduced by workplace sexual harassment scholars in the late 1990s. However, in order to use this dignity analysis for non-workplace settings, the analysis used must be expanded and particularized to account for the different dignity expectations a person may reasonably hold in different institutional contexts. To this end, this Article offers a nuanced, context-specific analysis that will allow courts to determine “what dignity demands” in each institutional setting. The Article demonstrates that this dignity framework will allow courts to identify the key considerations that should be weighed when creating sexual harassment doctrine for locations other than the workplace.

Disciplines

Law and Gender

Date of this Version

March 2009

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