Law Commons^™

Using A “Bystander Bounty” To Encourage The Reporting Of Workplace Sexual Harassment, Jessica K. Fink

Faculty Scholarship

Sexual harassment has become a fact of the modern workplace – something that society laments and regrets, but that rarely shocks the conscience when it comes to light. In fact, both the least and most surprising aspect about workplace sexual harassment is the number of individuals who are aware of it occurring: For every Harvey Weinstein, Matt Lauer, and Louis CK, there have been countless observers who knew about their depravity and who did nothing to stop their behavior. In this way, one obvious approach for reducing harassment at work seems clearly to involve mobilizing these bystanders – encouraging those …

Sexual Harassment Is Not A Crime: Aligning The Uniform Code Of Military Justice With Title Vii, Laura T. Kessler, Sagen Gearhart

Utah Law Faculty Scholarship

Sexual harassment and sexual assault are ongoing problems in the military. The Department of Defense responded in 2019 with sweeping changes in how the military handles sexual misconduct, including a proposal to criminalize sexual harassment in the Uniform Code of Military Justice (UCMJ). This Article, co-authored by an expert on workplace sex discrimination and a former military officer, responds to this proposal. We argue that sexual harassment, however reprehensible, is not criminal conduct. Moreover, criminalization is likely to undermine the military’s efforts to prevent and punish sexual harassment by raising the stakes for the involved service members, thereby deterring reporting, …

On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah

Articles

This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.

Disgorging Harvey Weinstein's Salary, Jessica K. Fink

Faculty Scholarship

Harvey Weinstein dramatically altered the way that people view sexual harassment in the workplace. While workplace sexual harassment is far from a new phenomenon – with many perpetrators of such harassment (including Weinstein himself) having gotten away with this misbehavior for decades – the exposure of Weinstein’s misdeeds opened the floodgates, leading countless women from a variety of work environments to share their own experiences with sexual harassment at work. As the #MeToo movement has continued to occupy the headlines, workplace harassment has begun to seem as ubiquitous as it is distressing.

This intensified spotlight on sexual harassment has exposed …

Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Elisabeth Haub School of Law Faculty Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, …

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Inniss, Bridget J. Crawford, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, …

We Still Have Not Learned From Anita Hill's Testimony, Kimberlé W. Crenshaw

Faculty Scholarship

Twenty-seven years after Anita Hill testified in front of the Senate Judiciary Committee that Clarence Thomas sexually harassed her, and as Christine Blasey Ford prepares to testify that Brett Kavanaugh sexually assaulted her when they were teenagers, we still have not learned our mistakes from that mess in 1991.

Most people recognized that it looked bad, a black woman fending for herself in front of a group of white men. Yet we can’t acknowledge the central tragedy of 1991 – the false tension between feminist and antiracist movements.

We are still ignoring the unique vulnerability of black women.

#Metoo Movement: Solutions, Raquelle A. Walker-White Ms

Undergraduate Research

Sexual assault and sexual harassment is a prevalent issue that affects women at disproportionate rates on college campuses, in the workplace and in society in general. The #MeToo movement aims to bring discussion around these issues, hold sexual predators accountable for their actions, and provide a support system for survivors of sexual assault and harassment. #MeToo Movement: Solutions analyzes the scope of the problem in the United States, famous cases surrounding sexual assault, and the different solutions colleges, society in general, and legislation have put in place to combat this issue. The #MeToo Movement has made a lot of headway …

Sexual Harassment Prevention After #Metoo: Employers' Need To Reevaluate, Michael T. Zugelder, Darrell M. Crosgrove, Paul J. Champagne

Finance Faculty Publications

The complex problem of workplace sexual harassment has now been put in sharper focus by the publicity of high-profile cases and the advent of the #MeToo movement, both of which have educated victims and motivated them to assert their civil rights. Employers can anticipate an increase in reported incidents and will need to reevaluate the sufficiency of their current anti-harassment policies, reporting procedures and support training to prevent sexual harassment. Employers ' should not stop there but should include efforts to create a culture of respect to prevent incidences of sexual harassment in the first place.

Employment Discrimination And The Domino Effect, Laura T. Kessler

Utah Law Faculty Scholarship

Employment discrimination is a multidimensional problem. In many instances, some combination of employer bias, the organization of work, and employees’ responses to these conditions, leads to worker inequality. Title VII does not sufficiently account for these dynamics in two significant respects. First, Title VII’s major proof structures divide employment discrimination into discrete categories, for example, disparate treatment, disparate impact, and sexual harassment. This compartmentalization does not account for the fact that protected employees often concurrently experience more than one form of discriminatory exclusion. The various types of exclusion often add up to significant inequalities, even though seemingly insignificant when considered …

Preparing Law Students In The Wake Of #Metoo, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Faculty Publications

(Excerpt)

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural …

Title Vii And The #Metoo Movement, Rebecca White

Scholarly Works

The #MeToo movement has drawn unprecedented attention to sexual harassment in the workplace. But there is a disconnect between sexual harassment as popularly understood and sexual harassment as prohibited by Title VII. This Essay identifies those areas where the law and the public understanding of it most starkly diverge. These include the requirements of severity or pervasiveness, the issue of unwelcomeness, the availability of an affirmative defense for hostile work environment claims, and the time limits within which claims must be brought. Additionally, those making claims of sexual harassment fare poorly when they suffer retaliation for stepping forward. Internal complaints …

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural and …

Sex Harassment Training Must Change: The Case For Legal Incentives For Transformative Education And Prevention, Susan Bisom-Rapp

Faculty Scholarship

In the wake of the #MeToo moment, employers, legislators, and human resources professionals have defaulted to a familiar solution to what seems like an epidemic of workplace harassment: mandatory sex harassment training. The chosen antidote, however, begs an important question that this author posed over 15 years ago: Does sex harassment training actually prevent harassment? My review of the social science research in 2001 revealed no convincing evidence that sex harassment training curbs harassment. In fact, the scant research available indicated that training, as typically conducted in American workplaces, may backfire, triggering stereotypes about women and people of color, and …

Back To Basics: Excavating The Sex Discrimination Roots Of Campus Sexual Assault, Deborah Brake

Articles

This article, written for a symposium devoted to the legacy of celebrated Lady Vols coach, Pat Summit, connects the dots between Title IX’s regulation of campus sexual assault and the law’s overarching goal of expanding women’s access to leadership. Beginning with a discussion of how sexual objectification and harassment obstruct women’s paths to leadership, the article situates campus sexual assault as an important part of Title IX’s overarching agenda to promote equal educational opportunity. Although liberal feminism and dominance feminism are often discussed as competing theoretical frames for understanding and challenging gender inequality, they are best seen as complementary and …

Newsroom: Yelnosky On Franchisor Liability, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Professional Women Silenced By Men-Made Norms, Maritza I. Reyes

Journal Publications

The call of this symposium was for articles regarding women's rights and the movement toward equality. We are still wrestling with what equality should mean. In this Article, when I refer to equality I envision it as both a strategy and as the end goal. Equality as a strategy means assessing the inherent inequalities of particular situations and using the means necessary to remedy the inequalities and achieve equality as the end goal. The end goal is for women (with all our complexities and intersectionalities) to achieve the same rights and results as men (with all their complexities and intersectionalities) …

Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles

Faculty Scholarship

Recent scholarship and media attention has focused on the prevalence of sexually harassing behavior directed at working teenagers, and the emergence of sexual harassment lawsuits by these minors against their employers. Although many of the legal issues concerning workplace sexual harassment and adult workers (and the various state and federal jurisprudence prohibiting it) have been widely discussed, there is surprisingly little discourse, research, and precedent addressing the problem of workplace sexual harassment and teen workers.

Currently, most sexual harassment cases brought by adolescent workers are litigated using the doctrinal framework for adult workers. Only the Seventh Circuit has developed an …

Organizational Responsibility For Workplace Racial And Sexual Harassment: The Stories Of One Company's Workers, Cheryl L. Wade

Faculty Publications

(Excerpt)

I begin this Article with the testimony of an African-American man who, along with hundreds of African-American coworkers, brought a race discrimination suit against an industrial construction and fabrication limited liability company ("LLC") doing business in Texas and Louisiana. The company, Turner Industries ("Turner"), rigorously defended itself against the allegations, and rather than settle the case, Turner and ten of the plaintiffs went to trial in October 2012. A jury awarded two of the ten plaintiffs in the 2012 Bellwether trial $2 million each in damages, but the plaintiff whose testimony I include above lost at trial and was …

Beyond Equality? Against The Universal Turn In Workplace Protection, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of …

Regulating Cyberharassment: Some Thoughts On Sexual Harassment 2.0, Helen Norton

Publications

No abstract provided.

Sexy Dressing Revisited: Does Target Dress Play A Part In Sexual Harassment Cases?, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

Perceiving Subtle Sexism: Mapping The Social-Psychological Forces And Legal Narratives That Obscure Gender Bias, Deborah L. Brake

Articles

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chosen institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …

Overruling The Jury: Duncan V. Gmc And Appellate Treatment Of Hostile Work Environment Judgments, Dara Purvis

Journal Articles

In 2002, the Eighth Circuit reversed a one million dollar jury award to the plaintiff in a sexual harassment suit against General Motors Corporation. This reversal demonstrates the danger of appellate review of such verdicts, limiting sexual harassment verdicts to the lowest common denominator in that circuit.

Freeing Racial Harassment From The Sexual Harassment Model, Pat K. Chew

Articles

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 …

Unwrapping Racial Harassment Law, Pat K. Chew

Articles

This article is based on a pioneering empirical study of racial harassment in the workplace in which we statistically analyze federal court opinions from 1976 to 2002. Part I offers an overview of racial harassment law and research, noting its common origin with and its close dependence upon sexual harassment legal jurisprudence. In order to put the study's analysis in context, Part I describes the dispute resolution process from which racial harassment cases arise.

Parts II and III present a clear picture of how racial harassment law has played out in the courts - who are the plaintiffs and defendants, …

Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez

Faculty Scholarship

In this Article, I present a Critial Race Feminism (CRF) empirical sexual harassment project I recently conducted as a case study of how empirical research can be valuable to the future of CRF. Part I introduces the sexual harassment study and discusses the empirical questions it sought to explore. Part II then presents the empirical research design and the general trends that the data provided. Part III analyzes the key findings of the study and how it contributes to an understanding of how the application of sexual harassment law implicates race. The statistical analysis of survey responses from a group …

Litigation Narratives: Why Jensen V. Ellerth Didn't Change Sexual Harassment Law, But Still Has A Story Worth Telling, Melissa Hart

Publications

No abstract provided.

Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman

Scholarly Works

No abstract provided.