The Logic of Experience: Reflections on the Development of Sexual Harassment Law
![handle is hein.journals/glj90 and id is 835 raw text is: The Logic of Experience: Reflections on the
Development of Sexual Harassment Law
CATHARINE A. MACKINNON*
INTRODUCTION
Sexual harassment law has been judge-made law. Formally predicated on
statutory and constitutional text, the concept in substance was first recognized
by federal judges who shaped thin equality laws to thick facts of women's lives.
[T]hat it should fit the facts is what Oliver Wendell Holmes, speaking of the
common law, observed to be [tlhe first call of a theory of law.' In the early
sexual harassment cases, women told of being hounded for sex and fired when
they refused and of years of private hell of sexual assault and molestation by
their workplace superiors. In classic common law mode, judges hearing their
cases crafted law to fit these newly spoken facts-and the District of Colum-
bia's federal judges were the first to do it. Through the D.C. Circuit's trial and
appellate decisions, sexual harassment was first established as a cause of action
for sex-based discrimination for which employers could be held civilly respon-
sible. Beginning with Williams v. Saxbea and Barnes v. Costle,3 extending
through Bundy v. Jackson4 and Vinson v. Taylor,5 this line of cases first cognized
the harm of sexual harassment, authoritatively considered the rules of account-
ability for it, and judicially explored the parameters of the wider legal and social
ramifications that the recognition of this injury was to generate. As women's
pain broke through public silence, their resistance to sexual abuse became
articulated as a deprivation of their entitlement to equality, and social movement
became institutional change generating further social movement. Significant in
its own right, this history also raises questions of explanation and offers lessons
in the theory and strategy of promoting equality through law for historically
subordinated groups.
I.
Sexual harassment doctrine was initially predicated on Title VII of the Civil
* Elizabeth A. Long Professor of Law, University of Michigan Law School, and long-term Visiting
Professor of Law, University of Chicago Law School. This Essay is dedicated to the memory of my
father, George E. MacKinnon, Circuit Judge of the District of Columbia Circuit Court of Appeals,
1969-1995. The research assistance and perceptive comments of Lisa Cardyn are gratefully acknowl-
edged. Conversations with Kent Harvey were formative. The author has participated in most of the
cases discussed in this Essay. © Catharine A. MacKinnon, 2002.
1. OLIVER WENDELL HOLMES, THE COMMON LAW 167 (Mark DeWolfe Howe ed., Harvard Univ. Press
1963) (1881).
2. 413 F. Supp. 654 (D.D.C. 1976).
3. 561 F.2d 983 (D.C. Cir. 1977).
4. 641 F.2d 934 (D.C. Cir. 1981).
5. 753 F.2d 141 (D.C. Cir. 1985).](ViewImageLocal?handle=hein.journals/glj90&div=38&collection=&method=preview&ext=.png&size=3)
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The Logic of Experience: Reflections on the Development of Sexual Harassment Law
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