Response or Comment
Center for Gender & Sexuality Law
According to the Equal Employment Opportunity Commission, sexual harassment is the fastest-growing area of employment discrimination. In fact, the annual number of sexual harassment complaints filed with the EEOC has more than doubled in the last six years. No one, or at least no one who has given this problem her serious attention, can deny that workplace sexual harassment is a grave problem and that it significantly impedes women's entrance into many sectors of the wage labor market.
Notwithstanding these impressive numbers, sexual harassment legal doctrine remains remarkably undertheorized – particularly by the Supreme Court. For these and other reasons, Professor Abrams does a tremendous service by critiquing and, in many ways, refining the work that Anita Bernstein, Vicki Schultz, and I have done on the problem of sexual harassment. She seeks to signal the arrival of ajurisprudential moment characterized by reinvigorated theorizing about the appropriate legal response to sexual harassment. Professor Abrams is a particularly appropriate person to undertake such an exercise given that she has produced some of the most innovative recent scholarship on sexual harassment. Moreover, this is a particularly opportune time to make such an assessment of the law of sexual harassment, as the Supreme Court will have taken action in five sexual harassment cases this term. Finally, what better time to assess the state of sexual harassment doctrine than on the eve of the twentieth anniversary of the publication of Catharine MacKinnon's Sexual Harassment of Working Women.
In The New Jurisprudence of Sexual Harassment, Professor Abrams voices several concerns about my formulation of the wrong of sexual harassment as a gender-based harm. I have argued that "sexual harassment is sex discrimination precisely because its use and effect police hetero-patriarchal gender norms in the workplace." To the contrary, Abrams suggests that the wrong of sexual harassment lies in its power to "preserve male control and entrench masculine norms in the workplace." I suspect that only the overinitiated will regard the two of us to be formulating different theories of discrimination. To be perfectly honest, I read much of Abrams's article as an elaboration of, rather than a disagreement with, the theory I advanced in What's Wrong With Sexual Harassment? Surely this should come as no great surprise since it is upon Professor Abrams's work that I aimed to build my account of the discriminatory nature of sexual harassment. Thus, I regard my comments here not in Marshal McLuhan-terms from Annie Hall, but as one new iteration of an ongoing conversation the two of us have undertaken with respect to the "why," not the "what," of sexual harassment.
Katherine M. Franke,
Gender Sex Agency and Discrimination: A Reply to Professor Abrams,
Cornell L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/495