Pragmatism, Feminist Theory, and the Reconceptualization of Sexual Harassment

Abstract

In this Article, Julianne Scott examines the judicial recognition of opposite and same-sex sexual harassment to discern how courts conceptualize the discriminatory harm of sexual harassment. Scott argues that the onset of same-sex harassment claims have revealed that courts adjudicate sexual harassment in unprincipled and contradictory ways and do not have a clear understanding of why sexual harassment constitutes sex discrimination. Scott discusses the historical development of sexual harassment law and the early feminist theory arguing that sexual harassment is sex discrimination to show the ways in which feminist theory influenced courts, and also how courts did not completely adopt the feminist notion of sexual harassment. Scott reviews the "new" feminist theories attempting to reconceptualize sexual harassment and argues they are theoretically too complex for courts to adjudicate in a principled manner. Finally, Scott argues that the legislature, courts, and scholars must acknowledge that sexual harassment fits uncomfortably in a system based on formal equality such as Title VII. Either Congress must pass a separate statute based on sexual harassment to give clear guidance to the courts, or the courts must adopt a more broad based, pragmatic approach to ensure that sexual harassment is adjudi- cated in a principled manner.