16. The Rights of Remedies: Collective Accountings for and Insuring Against the Harms of Sexual Harassment

Thus far, litigation about harassment has been modeled after common law tort processes in which individuals are found liable for imposing harm and are ordered to pay monetary damages. The Equal Employment Opportunity Commission (EEOC) and class action suits do sometimes seek injunctions, prohibiting future misbehavior; individuals may also obtain equitable orders for reinstatement or "front pay," money provided when reinstatement is not possible. But a substantial proportion of the litigation and the commentary about harassment focuses on whether individual plaintiffs can hold other persons (co-workers, employers, and/or supervisors) responsible and obtain compensation for sexual harassment. This essay explores the limits of the individualized model. I begin by reviewing the architecture of remedial options to show the challenges of their pursuit and to demonstrate current presumptions that the harms of harassment are, at base, injuries inflicted by individuals on each other. To the extent institutional remedies exist by way of employment policies on harassment (promoted by doctrine that permits employers to limit their own liability by having such policies), those policies typically provide for individual complaints and individualized processing of the problems raised. That conception misses both the social context that permits infliction of injury and how cultures of subordination harm participants beyond the individual(s) targeted. Further, I examine the new rules of dispute resolution that enforce agreements waiving rights of access to courts. As the mode of processing disputes about harassment shifts from the public venue of courts to privatized arbitral processes, the dispute is pressed even more into an individualized mold, to be mediated either by the disputants or through third party intervention rather than to be redressed as a social and political problem requiring structural reform of working conditions. Because I object to an understanding of the sources and harms of harassment as limited to individual (and ostensibly idiosyncratic) interpersonal exchanges, I urge consideration of new and different remedies for harassment to bring into better focus the institutional character of sexual harassment. The term "sexual harassment" ought to comprehend both an affront to individuals and a structural problem for workplaces. Thus I explore a range of legal rules that could help to develop an institutional and collective approach to harassment. First, to acknowledge that harms of harassment are pervasive, undermining the integrity of all workers, any worker within a harassing environment ought to be permitted to file harassment claims. The concept of a "bystander" - someone watching an accident - ought not to have a place in the law of workplace harassment. Second, worker collaboration about workplace structures that foster harassment should become a priority. Instead of First Amendment claims being deployed by defendants, seeking to counter anti-harassment measures, workers should consider how First Amendment and labor rights could protect their efforts to sponsor programs and collective protests. Similarly, rather than assume that contractual agreements to waive individual access to courts are only harmful, collective bargaining about such clauses could create remedies to supplement or to replace litigation with employer-wide programs that locate harassment as a potential part of all workplaces. Third, insurance ought to be a part of the repertoire of responses to harassment. I propose exploring the regulatory potential of various forms of insurance, both to introduce new institutional players into discussions about how to remediate harassment and to redistribute the costs of harassment to generate more incentives for its reduction. Liability insurance could be used to evaluate and price the risk of harassment. Unemployment insurance could recognize that workers should have income security when they leave hostile working conditions. Fourth, government agencies in addition to those chartered to deal with discrimination should be enlisted to think about harassment as a kind of workplace harm within their aegis. All of these collective undertakings could help buffer against current trends towards privatization. Many of these suggestions would require revisions of statutes, doctrine, and practices. Remedies reflect the shape of rights; my hope is that through remedial invention, harassment law could assess how discriminatory attitudes about gender, race, and age constitute aspects of workplaces and how all workplace participants could share in the work of reconstruction.