Academic

Case on a Workplace Taboo on Sexual Relations

By Lawrence Solum

Mary Anne Case (University of Chicago Law School) has posted A Few Words in Favor of Cultivating an Incest Taboo in the Workplace (Vermont Law Review, Vol. 33, Forthcoming, FEMINIST AND QUEER LEGAL THEORY: INTIMATE ENCOUNTERS, UNCOMFORTABLE CONVERSATIONS, Martha Albertson Fineman, Jack E. Jackson and Adam P. Romero, (eds.), Forthcoming) on SSRN. Here is the abstract:

This brief essay endorses Margaret Mead?s suggestion that it might be useful to think of sexual relations in the workplace in terms of an incest taboo. Several features of incest taboos are relevant to Mead?s suggestion: First, such taboos, while often embodied in law, do not rely principally on legal enforcement, but on internalized social norms, for their power. Second, at the core of such taboos is usually sex between people one of whom is hierarchically in a superior position to the other - what is generally prohibited is ancestor-descendant sex, not all sexual relations between family members; third, one potentially valuable function of incest taboos is to create a safe space, free from sexual demand, threat or possibility.

The essay uses examples from the Clinton-Lewinsky scandal to the Aberdeen Proving Grounds; analogies to long-standing restrictions such as the Catholic monastic ban on particular friendships and the military ban on fraternization; and discussion of the EEOC?s Sexual Favoritism Guidance and Richard Wasserstrom?s utopian vision of perfect bisexuality to respond to concerns about undue restrictions of eroticism in the workplace such as those raised in work by Janet Halley and Vicki Schultz.

The essay forms a small part of the author?s broader project of a unified field theory of the treatment of liking and not liking in the law of employment discrimination, a theory accounting for both sexual and non-sexual forms of attraction and aversion between decisionmakers in the workplace and those they have the power to hire, fire or promote. At the core of the broader project is an insistence that decision makers be more attentive to the extent to which forbidden grounds play a part in an employer?s decision to prefer for employment those he or she ?likes.? Just as hiring one?s friends is ordinarily unproblematic under Title VII, but can lead to a violation if one can only make friends with other white Anglo-Saxon Protestant males, so making hiring decisions on the basis of sexual attraction is not necessarily, but can be potentially, a Title VII problem.

Full post as published by Legal Theory Blog on April 16, 2009 (boomark / email).