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3 Canadian Lab. & Emp. L.J. 1 (1994-1995)

handle is hein.journals/canlemj3 and id is 1 raw text is: THE EVOLVING CONCEPTUAL FRAMEWORK OF SEXUAL HARASSMENT Patricia Hughes* Professor Hughes analyses the development of sexual harassment as a legal concept over the past twenty years. She argues that the transformation of harassing behaviour from normal conduct to behaviour deserving legal sanction is a con- sequence of feminist influence in the law. Hughes suggests that the adoption of prohibitions against sexual harassment represents an acknowledgment that the workplace experience is very different for women than it is for men and that unaccept- able sexual treatment of women by men in the workplace is a reflection of systemic power relations in the public realm. The gatekeeping function of sexual harassment, the manner in which it operates to block access to the workplace and advancement within it for women are stressed as the most harmful consequences of harassment. Operating within this theoretical framework, Professor Hughes chronicles the evolu- tion of definitions of sexual harassment through both judicial and tribunal pronounce- ments on sexual harassment as a form of sex discrimination and the legislative adoption of specific human rights and labour code provisions prohibiting harassment. The development of both quid pro quo and hostile or poisoned environment harass- ment is discussed. The need for careful consideration of cultural difference in the development and application of sexual harassment doctrine is also discussed. Con- cerns about shortcomings in the application of the poisoned environment branch of harassment doctrine in recent cases in both Canada and the United States are raised. 1. SEXUAL HARASSMENT AS FEMINIST DOCTRINE The development of sexual harassment as a legally recognized harm is in many ways representative of the feminist influence on law. In the twenty years or so since the term sexual harassment entered legal discourse, the twists and turns it has taken have reflected the twists and turns of women's claims to have our diverse experiences * Patricia Hughes is the Mary Louise Lynch Chair in Women and Law, Faculty of Law, at the University of New Brunswick.