Liberating Sexual Harassment Law

Abstract

Sexual harassment law and the proposed solutions to that paradigm’s deficiencies teach a disheartening and peculiar lesson to women and gender performance minorities: “You may be disadvantaged at work because of your gender or your gender performance nonconformity. Discrimination against you is okay.” This albatross has inexplicably burdened sexual harassment law for the more than thirty-five years since it emerged as a redressable form of unlawful discrimination under Title VII of the Civil Rights Act of 1964. This Article coherently explains the reason for it. It makes a simple claim: Sexual harassment law has failed to eradicate workplace gender discrimination, not because that goal is beyond its capacity, as is frequently claimed, but because it is beyond its scope. Sexual harassment law might have changed workplace relations (for the better), but it has not made sexual harassment an anomaly because it was not meant to do so. To accomplish its task, the Article reframes the intractability of problems within the sexual harassment paradigm by viewing the law as an educative process structured by a clear curriculum. Drawing together educational literature and sexual harassment discourse, it (1) maps how sexual harassment law conforms to the essential elements of the dominant curriculum model; (2) shows how existing critiques function within that model; and (3) proposes an alternative critique of sexual harassment law that pinpoints the main deficiency of sexual harassment in its conformity to a educational model that serves to maintain the status quo and inhibit, rather than promote, liberatory social change. On this foundation, the Article argues that the challenge is to create a “dialogical” method for law in which the beneficiaries of sexual harassment law are empowered to determine what behaviors serve to entrench their marginalization and, thereby, define their world and the change they want to see in it. Through its reframing of sexual harassment law, this Article liberates sexual harassment law from its reified limitations, creating space for a legal revolution that will liberate workers.