Beyond Equality? Against the Universal Turn in Workplace Protection

Authors

Jessica A. Clarke

Document Type

Article

Publication Title

Indiana Law Journal

Publication Date

2011

Page Number

1219

Keywords

sexual harassment, civil rights, anti-discrimination

Disciplines

Civil Rights and Discrimination | Law | Law and Gender | Law and Society

Abstract

Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of liberty or dignity. I refer to this trend as the universal turn in workplace protections.

This Article urges caution with respect to the universal turn. Drawing on feminist legal and political theory, it provides a set of questions to ask in evaluating proposals to universalize protections. It concludes that anti-bullying and work-life proposals are likely to dilute feminist workplace gains and mask inequality. If the universal rule swallows the anti-discrimination rule, the transformative potential of requiring employers and the public to scrutinize the workplace for gender discrimination is lost. Personality conflicts are seen as no worse than sexual harassment, and recreational pursuits are supported to the same extent as caretaking responsibilities. The benefits of sexual harassment law and leave policy are likely to be diluted.

I therefore oppose universal approaches to harassment and work-life conflicts that would simply expand civil rights protections to cover harms other than discrimination. Instead of the universal turn, this Article proposes a hybrid approach focused on inclusivity that would expand protections incrementally without abandoning equality.

Recommended Citation

Jessica A. Clarke, Beyond Equality? Against the Universal Turn in Workplace Protection, 86 Indiana Law Journal. 1219 (2011)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/945