Employee Rights and Employment Policy Journal

Pragmatism's Insult: The Growing Interdisciplinary Challenge to American Harassment Jurisprudence

By
Brady Coleman

Abstract

American harassment law, historically and conceptually rooted in a discrimination model, appears to be increasingly challenged by an alternative paradigm grounded in pragmatism. This article takes a broadly interdisciplinary view of the phenomenon of harassment - and then applies these new insights to consider implications for policy, and employment policy in particular.

After discussing some of the definitional challenges with harassment, the article provides an overview of current U.S. harassment law. Then, developments from a variety of fields are presented in an attempt to enrich our understanding of this ubiquitous if highly contextual form of human social aggression. The theoretical excesses of U.S. harassment law, and the unsurprising contradictions that have ensued, are overdue for a comprehensive response grounded in common sense, and enriched with empiricism rather than idealism. This article draws on feminist legal theory, evolutionary biology, law and economics, endocrinology, comparative law, primate biology, cultural anthropology, and other fields, to offer a more rich, global portrait of harassment for policymakers to ponder as inevitable transformations to this area of law are considered.