Sex Discrimination

2 Pages 386 Words

Sex Discrimination
The law has taken curious turns in reaching its present attitude towards sexual harassment. Judges are stretching Title VII to cover wrongs that are not within the original meaning of sex discrimination, in a way reminiscent of how in Blackstone's day legal fictions were used to wedge desirable policies into existing laws. Blackstone notes how the writ of Trespas was used to bring torts to the King's Bench, but the trespassing allegation was always then dropped, and the tort pursued.15 Just so, we now hang sexual harassment onto the writ of Title VII. Blackstone’s Gothic castle of the law has its advantages, but we would do well in the present day to develop a principled basis for sexual harassment law.
Sexual harassment law is, on its face, a way to fight sex discrimination, and in some cases sex discrimination indeed is involved. A clear example would be if an employer encouraged g male workers to engage in aggressive sexual banter and horseplay to drive female workers to quit. This was not the problem in Oncale, Ellerth, or Faragher, however. Rather, the connection with Title VII and sex discrimination in those cases is that a certain employee is subject to offensive behavior to which a member of the opposite sex would not have been subject. Under this logic, if a bisexual supervisor terrorized both male and female employees with demands for sex, the law should hold that behavior harmless.

I have tried in this article to give a view of sexual harassment law based on objectives and incentives. This view looks at results one might expect from different laws rather than at their stated intents. The current law cannot be justified as promoting equality between the sexes, protecting employees against employers, or protecting employers against supervisors, except to the extent that it allows employees redress against breach of contract by employers who provide worse working conditions than expected or employers a...