Sexual Harassment 2.0

Abstract

Sexual harassment is a complex and evolving practice. The rise of sexual discrimination in cyberspace is only one of the most recent and most striking examples of the phenomenon\u27s increasing complexity. Sexual harassment law, however, has not kept pace with this evolution. Discrimination law has not been adequately updated to address new and amplified practices of sex discrimination. Its two principal limitations are (1) it treats only sexual harassment that occurs in certain protected settings (e.g. the workplace or school) as actionable and (2) it assumes that both the activity and the resulting harm of sexual harassment occur in the same protected setting. Thus, it is unable to address any harassment that occurs completely or partially outside of traditionally protected settings. By contrast, this Article proposes a multiple-setting conception of sexual harassment that both moves beyond traditionally protected settings and explicitly acknowledges that sexual harassment in one setting can produce harms in another. In order to address multiple-setting harassment, a third-party liability regime similar to that of traditional sexual harassment law should be introduced into nontraditional contexts. In the particular case of online harassment, liability should attach to website operators. This regime will create an incentive for website operators to adopt preemptive, self-regulatory measures against online sexual harassment, much as employers have done in the offline setting