What's Wrong with Sexual Harassment?

Abstract

In this article, Professor Franke asks and answers a seemingly simple question: why is sexual harassment a form of sex discrimination under Title VII of the Civil Rights Act of 1964? She argues that the link between sexual harassment and sex discrimination has been undertheorized by the Supreme Court. In the absence of a principled theory of the wrong of sexual harassment, Professor Franke argues that lower courts have developed a body of sexual harassment law that trivializes the legal norm against sex discrimination. After illustrating how the Supreme Court has not provided an adequate theory of sexual harassment as sex discrimination, she traces the theoretical arguments advanced by feminist scholars on behalf of a cause of action for sexual harassment under Title VII: 1) it violates formal equality principles; 2) its sexism lies in the fact that the conduct is sexual; and 3) sexual harassment is an example of the subordination of women by men. Professor Franke provides a critique of each of these accounts of sexual harassment, in part, by showing how each is unable to provide an account of whether same-sex sexual harassment should be actionable under Title VII. She argues that flaws in both the theory and the doctrine are amplified in the marginal cases of same-sex harassment. Professor Franke then argues that the discriminatory wrong of sexual harassment, between parties of different or same sexes, should be understood as a technology of sexism. That is, the sexism in sexual harassment lies in its power as a regulatory practice that feminizes women and masculinizes men, renders women sexual objects and men sexual subjects.

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