From Volume 83, Number 1 (November 2009)
In the more than twenty years since the Supreme Court created Title VII’s workplace sexual harassment protections, judges and feminist legal scholars have struggled to create a clear, conceptual account of the harm sexual harassment inflicts. For years, many courts and scholars were content to justify sexual harassment law by arguing that harassment should be prohibited because it interferes with women’s interest in workplace gender equality; however, by the late 1990s, several feminist legal scholars had revealed the inadequacy of this account, suggesting instead that harassment law should be understood as protecting women from dignitary harm. The failure to reach a broad-based consensus about the injury sexual harassment inflicts, and relatedly about sexual harassment law’s purpose, appeared without significant consequence until federal courts began using understandings developed in the context of workplace sexual harassment law to develop new sexual harassment doctrine for nonworkplace settings. Operating without clear conceptual moorings, many federal courts created narrow, cabined sexual harassment protections governing nonworkplace settings, often without principled justifications for doing so. To demonstrate the serious nature of this problem, this Article explores the Eighth Amendment sexual harassment doctrine courts have created to govern prisoners’ sexual harassment claims against guards, demonstrating the myriad ways in which workplace sexual harassment doctrine has distorted the development of prisoners’ sexual harassment protections. Yet the prison cases discussed here are offered as an example of a potentially far broader phenomenon. To address the larger issue—the distorting effects workplace sexual harassment law has had on other areas of sexual harassment doctrine—this Article argues that we should return to the dignitary account of sexual harassment law that was introduced by feminist workplace sexual harassment scholars in the late 1990s. However, in order to use this dignity analysis for settings other than the workplace, the dignitary framework these scholars introduced must be expanded and particularized to account for the different dignity expectations a person may reasonably hold in different institutional contexts. To that end, this Article offers a nuanced, context-specific analysis that will allow federal courts to determine “what dignity demands” in each institutional setting. The Article demonstrates that this dignitary framework will allow federal courts to identify the key considerations that should be weighed when creating sexual harassment doctrine for locations other than the workplace.