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Sex Discrimination

Sex Discrimination

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

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