Toward a Harm-Based Analysis
This chapter focuses on a feminist triumph in the last quarter of the twentieth century: the legal transformation of unwelcome sexual behavior foisted by relatively powerful men upon relatively less powerful girls and women, in workplaces, in schools, and in the military to a clear-cut deprivation of civil and constitutional rights. This transformation, however, and the speed with which it came about, did not come without costs. One of the costs may be that the sheer rapidity of that transformation has obscured the nature of the harm which unwanted sex visits upon the woman or girl who suffers it. If sexual harassment is a violation of civil rights because it is a form of discrimination, then it appears that the harm lies in the discrimination. Alternatively, if sexual harassment subordinates women, then the harm lies in the substantive inequality that results from it. Either analysis establishes a fit between the worldly phenomenon of harassment and the legal idea of discrimination, but neither rests on nor requires an elucidation of the actual harm.
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