last updated April 30, 2007
The prohibition of sexual harassment in the workplace is closely linked with theories relating to the subordination of women to men that were first introduced in the United States in the 1970s. These theories associated sexual harassment with violence against women, the perpetuation of gender stereotypes and the assertion of economic power over women, all phenomena which serve to subordinate women to men. In general, the role sexual harassment is believed to play in the subordination of women in society has led many countries, including the United States, the United Kingdom, Canada, Australia, Japan and South Africa, to recognize sexual harassment as an actionable form of sex discrimination.
Over time, however, the legal standards and remedies applied to cases of alleged sexual harassment have not always reflected the theories which gave rise to sexual harassment law. Martha Chamallas notes with respect to law in the United States that "[a]fter over two decades of enforcement of sexual harassment laws, the results are decidedly mixed. There can be little question that, for many people, particularly the targets of harassment, a change in consciousness has occurred. What was once quite universally regarded as private, petty conduct (for which the target herself was often deemed responsible) can now be argued to be a serious infringement of a worker's civil rights. On the other hand, the development of the law of sexual harassment has not escaped some of the stultifying influences of the law of rape. . . . Many opinions in this unusually active area of litigation embody traditional views of proper behavior for men and women and fail to see the connection between sexual harassment and women's subordination. The tendency to attribute causality to women's 'provocative' dress or behavior and to credit myths about the motivations and credibility of complainants can sometimes make sexual harassment litigation look like the civil version of a rape trial." From Martha Chamallas, Introduction to Feminist Legal Theory 238 (2003).
It should be noted that literature concerning sexual harassment now includes alternative theories of sexual harassment which focus on the dignity of men and women in the workplace. These theories have led to the development of more gender-neutral legal standards for evaluating sexual harassment claims. For example, the harassment legislation of many European countries and the definition of sexual harassment adopted by the EU make the violation of the dignity of a person in the workplace a central concern.
Adapted from Martha Chamallas, Introduction to Feminist Legal Theory 237-254 (2003); and Katharine T. Bartlett et. al, Gender and Law: Theory, Doctrine and Commentary 540-597(2002).
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