Abstract
Sexual harassment is a complex and evolving practice. The rise of sexual discrimination in cyberspace is only one of the most recent and most striking examples of the phenomenon’s increasing complexity. Sexual harassment law, however, has not kept pace with this evolution. Discrimination law has not been adequately “updated” to address new and amplified practices of sex discrimination. Its two principal limitations are (1) it treats only sexual harassment that occurs in certain protected settings (e.g. the workplace or school) as actionable and (2) it assumes that both the activity and the resulting harm of sexual harassment occur in the same protected setting. Thus, it is unable to address any harassment that occurs completely or partially outside of traditionally protected settings. By Copyright © 2012 by Mary Anne Franks. * Associate Professor of Law, University of Miami School of Law. I am grateful to Daniel Abebe, Adam Badawi, Douglas Baird, Mary Anne Case, Danielle Citron, Jens Damman, Mark Egerman, Michael Froomkin, Aziz Huq, Brian Leiter, Saul Levmore, Catharine MacKinnon, Richard McAdams, Adam Muchmore, Martha Nussbaum, Paul Ohm, Eric Posner, Jeff Rachlinksi, Laura Rosenbury, Arden Rowell, Adam Samaha, Lior Strahilevitz, Madhavi Sunder, Robin West, participants in the Regulation of Family, Sex, and Gender Workshop at the University of Chicago Law School, and participants in the Cyber Civil Rights Symposium at the University of Denver Law School for helpful discussion and feedback on previous versions. I thank Natalie Prager for research assistance. 656 MARYLAND LAW REVIEW [Vol. 71:655 contrast, this Article proposes a “multiple-setting” conception of sexual harassment that both moves beyond traditionally protected settings and explicitly acknowledges that sexual harassment in one setting can produce harms in another. In order to address multiplesetting harassment, a third-party liability regime similar to that of traditional sexual harassment law should be introduced into nontraditional contexts. In the particular case of online harassment, liability should attach to website operators. This regime will create an incentive for website operators to adopt preemptive, self-regulatory measures against online sexual harassment, much as employers have done in the offline setting.