Not since the 1890 Harvard LAW Review article by Charles Warren and Louis Brandeis initiated the cause of action for violation of privacy has an author been as closely identified with a new cause of action as Catharine MacKinnon has been with sexual harassment.
MacKinnon, who now holds a J.D. and a Ph.D. degree in political science, was a student at Yale when sexual harassment cases first arose in the 1970s. To some feminist attorneys, it seemed self-evident that quid pro quo harassment constituted sex discrimination. Hostile environment harassment, too, struck many as an obvious method of excluding or driving away women, and thus a form of sex discrimination. But a number of federal district judges, perhaps in part because they were primarily men who took male privilege for granted, accepted men’s sexual overtures toward women as natural compliments, rather than as hostile discrimination. A supervisor’s retaliation was seen as an understandable, if somewhat cowardly, response to an embarrassing personal rebuff. To these judges, sexual harassment was merely a personal matter. And while it was not commendable, it also was not sex discrimination. The first cases reaching federal district courts were summarily dismissed.
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