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Discrimination Law


In this #MeToo era, so much important work is being done (and so
many stories are being told and listened to), but very little of the work
focuses on retaliation. And none of the work focuses on situations where
the fear of retaliation is not necessarily job loss (although that certainly
happens) but rather, it is the fear of harming workplace relationships. This
Article will use a real-life story of harassment to demonstrate how much
workplace relationships matter—especially to women—and how the fear
of harming those relationships often affects an employee’s willingness to
report harassment. Thus, this Article argues for reforms surrounding
harassment and retaliation law that recognize this reality. Right now,
courts penalize victims of harassment for not reporting harassment soon
enough because they feared harming their workplace relationships; or,
when they do report, courts penalize them by holding that the
relationship-based harm they experienced after reporting was not a real
harm worthy of a remedy. These courts reason that reasonable employees
would not and should not be deterred from reporting harassment because
they fear relationship-based harms. And yet, most of the empirical
evidence shows that the opposite is true: reasonable employees
(sometimes men, but especially women) often do avoid reporting because
they fear harming their relationships in the workplace. The law should
reflect this reality.