Sexual Harassment Of Working Women Research Articles

Feminists & Contract Doctrine

gave with Professor Karen Engle to the Women’s Law Caucus of the University of Utah College of Law in the spring of 1994. The research for this paper was funded by grants from the Faculty Development Committee. I would like to thank Tawni Anderson for her research assistance. 1. See KATHARINE T. BARTLETT & ANGELA P. HARRIS, GENDER AND LAW: THEORY, DOCTRINE, COMMENTARY 750-51 (2d ed. 1998) 2. See, e.g., CATHERINE MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN (1979) (MacKinnon’s work substantially contributed to the recognition of sexual harassment as a violation of Title VII). 3. For example, we have seen increased responsiveness to domestic violence. See BARTLETT & HARRIS, supra note 1, at 566-70. 4. See Leslie Bender, A Lawyer’s Primer on Feminist Theory and Tort, 38 J. LEGAL EDUC. 3 (1988); Lucinda M. Finley, A Break in the Silence: Including Women’s Issues in a Torts Course, 1 YALE J.L. & FEMINISM 41 (1989); Carl Tobias, Gender Issues and the Prosser, Wade, and Schwartz Torts Casebook, 18 GOLDEN GATE U. L. REV. 495 (1988). 5. See Mary Irene Coombs, Crime in the Stacks, or a Tale of a Text: A Feminist Response to a Criminal Law Textbook, 38 J. LEGAL EDUC. 117 (1988); Nancy S. Erickson and Nadine Taub, Final Report: “Sex Bias in the Teaching of Criminal Law,” 42 RUTGERS L. REV. 309 (1990). 6. Mary Joe Frug, Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law, 140 U. PA. L. REV. 1029, 1030 (1992) [hereinafter Rescuing Impossibility Doctrine] (quoting letter from W. David Slawson, Professor of Law, University of Southern California, to Mary Joe Frug 2 (June 24, 1988)). See also Patricia Tidwell & Peter Linzer, The Flesh-Colored Band Aid—Contracts, Feminism, Dialogue and Norms, 28 HOUS. L. REV. 791, 800 n.48 (1991) (suggesting that the letter led to a “brouhaha of modest proportions”). 7. The number of scholars exploring the topic of feminism’s influence on contract doctrine is small but growing. Examples of writing on the subject include: Elizabeth S. Anderson, Women and Contracts: No New Deal, 88 MICH. L. REV. 1792 (1990) (reviewing CAROLE PATEMENT, THE SEXUAL CONTRACT (1988)); Jean Braucher, Contract v. Contractarianism: The Regulatory Role of Contract Law, 47 WASH. & LEE L. REV. 697 (1990); Clare Dalton, An Essay in the FEMINISTS & CONTRACT DOCTRINE

A Theory of Tort Liability for Sexual Harassment in the Workplace

t A.B. 1984, Bryn Mawr College; J.D. Candidate 1987, University of Pennsylvania. I See generally Goodman, Sexual Harassment: Some Observations on Distance Travelled and Distance Yet to Go, 10 CAP. U.L. REV. 445, 448-52 (1981) (discussing history of sexual harassment in United States). See also L. FARLEY, SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF WOMEN ON THE JOB 56-68 (1980) (history of sexual harassment from 1860's to beginning of modern labor movement). This Comment focuses on harassment of women by men because sexual harassment in employment context is generally viewed as a problem faced exclusively by women: [T]he common denominator is that perpetrators tend to be men, victims women. C. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 28 (1979). The analysis presented herein, however, could conceivably apply to sexual harassment of men by women, women by women, and men by men. 2 MacKinnon broadly defines sexual harassment as the unwanted imposition of sexual requirements in context of a relationship of unequal power. C. MACKINNON, supra note 1, at 1. Farley's definition refers specifically to workplace harassment: unsolicited nonreciprocal male behavior . . . that asserts a woman's sex role over her function as a worker. L. FARLEY, supra note 1, at 14. The Working Women's Institute provides a more precise definition: