Article by Jane Byeff Korn
This Article examines one of the difficulties women face in seeking legal redress for claims of sexual harassment outside of Title VII—the argument that workers' compensation is the exclusive remedy for sexual harassment. Remarkably, although many courts have decided that workers' compensation is the exclusive remedy for sexual harassment, no one has fully examined the policy issues underlying this determination. Several possibilities exist that would explain the failure to consider this problem. It could be the result of inertia or reliance on stare decisis. It also could be the result of courts forcing a claim into an ill-fitting category in order to avoid examining either the claim or the category. In this Article, I offer a different explanation-reluctance to come to grips with the gendered experience of sexual harassment. This reluctance is due to a multiplicity of factors including gender bias, on which I focus.
In Part II, I examine the legal definitions of sexual harassment. In Part III, I explore the various remedies for sexual harassment. In Part IV, I consider whether workers' compensation should be the exclusive remedy for sexual harassment. I conclude that workers' compensation statutes never were intended to cover injuries resulting from sexual harassment or sexual assault. Rather, they were enacted to provide benefits to employees who were injured by risks inherent in the workplace. Sexual harassment is not a risk inherent in the workplace. To limit compensation of sexual harassment victims to a workers' compensation scheme wrongly suggests that sexual harassment and sexual assault are risks of working which women must cope with, the way all workers have to put up with the risk of being injured by malfunctioning equipment or slipping on a wet floor. The court's assumption that sexual harassment and assault are comparable to malfunctioning equipment that causes injury or slipping on a wet floor is due, in large part, to their reliance on the male norm of our legal system and their resulting inability to understand the nature and causes of sexual harassment and sexual assault in the workplace.
About the Author
Jane Byeff Korn. Associate Professor of Law, University of Arizona. B.A., 1972, Rutgers, Newark; J.D., 1983, Colorado.
Citation
67 Tul. L. Rev. 1363 (1993)