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61 Mod. L. Rev. 236 (1998)
Racial Harassment, Sexual Harassment, and the Expressive Function of Law

handle is hein.journals/modlr61 and id is 252 raw text is: CASES
Racial Harassment, Sexual Harassment, and the
Expressive Function of Law
Richard Mullender*
Employers who permit their workers to be racially harassed by third parties who
are not fellow workers can be held liable for the detriment suffered by those who
have been abused. In order for liability to arise, it must be shown that an employer
(acting in accordance with good employment practice) could have exercised
sufficient control over the workplace to prevent such abuse. That failures to
exercise adequate control can ground liability was established by the Employment
Appeal Tribunal (EAT) in Burton and Rhule v De Vere Hotels.I On both the level
of moral principle and on a more pragmatic level, this decision has much to
recommend it. On the former level, it can be regarded as serving to promote
autonomy by providing those who wish to work with protection from racial abuse.2
On the latter level, the liability rule established by the EAT can (other things being
equal) be expected to be economically efficient. This is because, in the context of
the workplace, employers are, in a broad range of circumstances, in a position to
provide protection from such a detriment more cost-effectively than anyone else.3
One feature of the Burton case is, however, questionable. Liability was not
imposed on the individual whom the EAT identified as 'primarily responsible' for
the detriment suffered by the two women: ie, the person who abused them (on the
ground of sex as well as that of race).4 It will be argued below that, in imposing
liability on this third party, the message that discrimination on grounds of race and
sex is a wrong would have been conveyed more powerfully than by imposing
liability on the respondents. Also discussed below are two possible means by
which liability could be imposed on someone such as the abuser primarily
responsible for the detriment suffered in Burton: viz, tort law (in the form of the
rule in Wilkinson v Downton-) and criminal law (in the form of section 5 of the
Public Order Act 1986). Finally, each of the proposed bases upon which to proceed
against persons who engage in abuse such as that in Burton will be critically
appraised from a perspective that (on the analysis advanced below) informs the
EAT's decision. This is the victim perspective, which (on one account) is
*Law School, University of Newcastle-upon-Tyne.
I [19961 IRLR 596.
2 'Autonomy', as used in the text, refers to the substantial authorship of one's life. See J. Raz, The
Morality of Freedom (Oxford: Clarendon Press, 1986) 155.
3 R. Posner, 'An Economic Analysis of Sex Discrimination Laws' (1989) 56 U Chi LR 1311, 133 1-
1332.
4 Burton and Rhule v De Vere Hotels, n I above, 600 para 38 (on the primary responsibility of the
person who engaged in racist (and sexist) abuse). See also 597, para 4 and para 5 (where it is noted
that the appellants were the victims of both racist and sexist abuse).
5 [1897]2 QB 57.
(© The Modern Law Review Limited 1998 (MLR 61:2, March). Published by Blackwell Publishers,
236                     108 Cowley Road, Oxford OX4 lJF and 350 Main Streei, Maiden, MA 02148, USA,

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