Martha Nussbaum, “Carr, Before and After: Power and Sex in Carr v. Allison Gas Turbine Division, General Motors Corp,” 74 U Chi L Rev 1831 (2007)

Accessible here. The first two paragraphs are below:

“Sexual harassment doctrine owes its primary theoretical impetus to the work of Catharine MacKinnon, who convincingly argued that sexual harassment is a form of sex discrimination. MacKinnon offered two different paradigms (the”difference”and the”dominance”paradigms) under which this form of discrimination could be analyzed.1 Though she clearly preferred the latter framework, MacKinnon prudently argued that the former paradigm, too, provided sufficient re-sources to show that sexual harassment was a form of sex discrimination under Title VII. MacKinnon’s analysis had, and has, great power, but it did not answer absolutely every question that the law would ultimately need to resolve. This left room for judges to work out the doctrine creatively, extending the analysis to cases not entirely covered under the MacKinnon analysis.

“Judge Posner’s opinion in Carr v Allison Gas Turbine Division, General Motors Corp,2 I shall argue, is one of the most creative such extensions, establishing that harassment of a woman in the workplace can be”sexual harassment”even in the absence of any attempt to have sexual relations with the woman, or any meaningful reference to such relations, and establishing, further, that a difference of power in the workplace was part of the”facts”of such cases that any judge must recognize (an insight that lay deep in MacKinnon’s analysis, but one that previous courts had not recognized). In this Essay, I shall show the importance of Posner’s contribution in Carr. I shall argue, however, that the somewhat casual and undertheorized nature of his contribution made it unstable, even within the canon of his own opinions. Arriving at his analysis of Carr pragmatically and without explicit theoretical analysis, he lost sight of its insights in at least one subsequent case.” …

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