Freeing Racial Harassment from the Sexual Harassment Model
forthcoming in 85 Oregon Law Review __ (2007).
Judges, academics, and lawyers alike base their legal analyses of workplace racial harassment on the sexual harassment model. Legal principles derived from sexual harassment jurisprudence are presumed to be equally appropriate for racial harassment cases. The implicit assumption is that the social harms and public policy goals of racial harassment and sexual harassment are sufficiently similar to justify analogous scrutiny and remedies. Parties to racial harassment cases cite the reasoning and elements of sexual harassment cases without hesitation, as if racial harassment and sexual harassment are behaviorally and legally indistinguishable.
This article, however, questions the assumption that there should be a monolithic model for discriminatory workplace harassment. In particular, it questions whether the currently dominant sexual harassment model should be used automatically as the paradigm in racial harassment disputes. Part I begins by acknowledging and explaining why the legal community analogizes racial harassment claims and jurisprudence to sexual harassment claims and jurisprudence. Part II posits that this analogy is problematic given the fundamental differences between racial harassment and sexual harassment. While empirical evidence of these differences is currently limited, Part II identifies and discusses two pioneering examples. The first example documents important dissimilarities between racial harassment litigation and sexual harassment litigation; the second example chronicles the differences between the dynamics and theoretical explanations for racial harassment and sexual harassment in the law firm context.
Given the dominance of the sexual harassment model and the presumption of its applicability to other harassment disputes, including racial harassment, it is not surprising that comparatively little research and study of racial harassment and other forms of harassment have been done. The discussion and analysis here contributes to the research on the topic. Finally, Part III explores the implications of freeing racial harassment from the sexual harassment model.