Susquehanna University Press



The Law Of sexual Harassment A Critique
Author: Mane Hajdin

This book examines the question of whether the law about sexual harassment is morally justified, and argues that it is not. While the author has approached that examination as a professional philosopher, the book does not presuppose that its readers belong to any particular academic discipline: it is intended to be of interest to scholars in philosophy, political science, and jurisprudence, but also accessible to other educated readers. No previous familiarity with the law of sexual harassment is assumed, other than the general knowledge that any casual reader of newspapers is bound to have. The book is devoted to arguments that are addressed to all open-minded readers who wish to think about the topic critically.

The first chapter disentangles the issue as to whether the law about sexual harassment is justified from other issues with which it is often confused. It shows, for example, that the law cannot be justified by the considerations of abuse of power or by the tenets of traditional sexual morality.

Chapters two and three are devoted to what the author calls "the demarcation problem": they show that the law about sexual harassment does not provide a workable criterion of demarcation between sexual harassment and other sexual interaction. The law, therefore, despite the appearances, amounts to a prohibition of all conduct of a sexual nature within employment and education.

The following chapter examines the roots of the demarcation problem: the fact that the law amalgamates deliberate insults of a sexual nature with the bona fide sexual advances that are, unbeknownst to those who are making them, unwanted by their recipients. An account is offered of what distinguishes bona fide advances that are worthwhile from those that are not.

The fifth chapter shows that the law about sexual harassment is an unavoidable conflict with the commitment to freedom of speech. It examines the legal cases in which the issue of the relationship between the sexual harassment law and the First Amendment has been raised, and shows that the court opinions in these cases do not come to grips with the core of the conflict.

Chapter six discusses the problems that are due to the fact that the law about sexual harassment enables the state to control individual conduct through intermediaries, such as employers. It shows that the involvement of the intermediaries creates a crude push toward restricting individual freedoms and that it makes it possible for the state to bypass the traditions that otherwise govern its relationship with its citizens.

Chapter seven is devoted to examining the idea (which plays the central role in the structure of the law) that sexual harassment is a form of discrimination on the basis of sex. It shows that the idea is untenable.

Once it is shown that the law is unjustified, one may wonder what would happen if the law did not exist. Chapter eight shows that there are alternative legal mechanisms that can control problematic sexual conduct within employment and education, while avoiding the problems from which the sexual harassment law suffers.