Unreasonable expectations: A phenomenological defense of taking a group-rights based perspective towards the adjudication of hostile environment sexual harassment claims.

摘要

There is currently a debate among legal scholars about what kind of reasonableness standard courts should adopt while adjudicating hostile environment sexual harassment claims. The alternatives generally fall into two categories: traditional individual-rights based standards and group-rights based standards. Using the former types of standards entails a commitment to several traditional liberal principles--social consensus as mediator, tolerance of diversity, assumption of risk, and interchangeability--while using the latter types of standards entails either the modification or abandonment of them. The purpose of this dissertation is to demonstrate how the explicit or implicit positing of different theories of the self ultimately underlies these disagreements.; First, I will argue that a commitment to one crucial aspect of social atomism, i.e., the view that a rational individual can choose not to be seriously psychologically affected by the views that others take towards her or him, underlies claims that courts should appeal to these traditional liberal principles and adopt some variation of a reasonable person standard. I will then argue that all previous attempts to criticize this type of theory of the self for being "excessively individualistic" have failed; these theories of the self--whether they are based on modern individualism, communitarianism, or cultural feminism--still either explicitly claim or strongly imply that a rational woman can reject and consequently be psychologically unaffected by having to work in misogynous, traditionally all male work environment.; Second, I will combine Jean-Paul Sartre's concept of "the look of the other" with several aspects of George Herbert Mead's theory of social development in order to construct a theory of the self that will better explain why a rational individual cannot help but be psychologically affected by the disparaging attitudes that others express about her or him under certain sociological circumstances. In turn, this theory of the self will then be used to defend the claim that courts should adopt a group-rights based reasonableness standard while adjudicating hostile environment claims.