Law Commons^™

Relationships And Retaliation In The #Metoo Era, Nicole B. Porter

Faculty Publications

In this #MeToo era, so much important work is being done (and so many stories are being told and listened to), but very little of the work focuses on retaliation. And none of the work focuses on situations where the fear of retaliation is not necessarily job loss (although that certainly happens) but rather, it is the fear of harming workplace relationships. This Article will use a real-life story of harassment to demonstrate how much workplace relationships matter-especially to women-and how the fear of harming those relationships often affects an employee's willingness to report harassment. Thus, this Article argues for …

Ending Harassment By Starting With Retaliation, Nicole B. Porter

Faculty Publications

This Essay posits that the fear of retaliation significantly contributes to the problem of harassment—we cannot hope to end harassment without starting by addressing the reality of retaliation. Although some scholars have argued that the fear of retaliation is one reason women don’t report harassment, and some scholars have discussed the inadequacies of anti-retaliation law, this Essay breaks new ground by arguing that ending harassment must start with preventing retaliation. Part I backs up what seems to be a commonsense proposition: Many victims of harassment do not report it because they fear retaliation.5 Part II then describes the difficulty in …

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 …

From Queen Bees And Wannabes To Worker Bees: Why Gender Considerations Should Inform The Emerging Law Of Workplace Bullying, Kerri Lynn Stone

Faculty Publications

This Article submits that the documented phenomenon of workplace bullying operates to stymie the retention and advancement of women in the workplace Research documented in books like Queen Bees and Wannabes shows that as early as the schoolyard, males and females tend to socialize differently, engage in and resolve conflict with peers differently, and absorb bullying behavior differently. Girls often believe or are taught to believe that direct conflict or confrontation is unpalatable and tend to employ more passive aggressive means of engagement with foes. They often internalize and repress feelings that boys are more likely to express. Viewing the …

Consenting Adults? Why Women Who Submit To Supervisory Sexual Harassment Are Faring Better In Court Than Those Who Say No…And Why They Shouldn’T, Kerri Lynn Stone

Faculty Publications

Today, as a sexual harassment plaintiff who failed to report harassment before bringing suit, you likely will fare better under the law if you submitted to your harasser and engaged in relations with him, than you would if you had passively resisted until you were driven out of your employment. This Article examines the law’s illogical preference for plaintiffs who acquiesced to the propositions of their supervisors over those who resisted harassment but nonetheless failed to report it. It explores the roots of such a preference in society, as well as its consequences. Ultimately, this Article asks critical questions that …

License To Harass: Holding Defendants Accountable For Retaining Recidivist Harassers, Kerri Lynn Stone

Faculty Publications

Harassment victims who suffer a "tangible employment action," which the Supreme Court defines as a "significant change in employment status such as hiring, firing, failure to promote, reassignment, or a decision causing a significant change in benefits," enjoy unfettered recourse when they sue their employers. However, victims who do not endure what a court will deem a "tangible employment action" will have their prima facie case of harassment then rendered vulnerable to the interposition of an affirmative defense by a defendant-employer, who will escape liability if it can show "(a) that the employer exercised reasonable care to prevent and correct …

How To Succeed In Business Without Really Trying (Cases): Gender Stereotypes And Sexual Harassment Since The Passage Of Title Vii, Miriam A. Cherry

Faculty Publications

(Excerpt)

Last year I was invited to an undergraduate revival of the musical "How to Succeed in Business Without Really Trying," a comedy about the workplace, which I thought, as a teacher of employment law, I would enjoy. Written in the early 1960s and made into a 1967 movie, "How to Succeed" follows the adventures of J. Pierrepont Finch, a window washer who, with the aid of a sarcastic self-help book, schemes his way up the corporate ladder. Although ostensibly a humorous look at the corporate world of the late 1950s and early '60s, I found myself cringing throughout the …