1. ‘There are differences between males and females that the Constitution necessarily recognises’: Michael M v Sonoma Country (1981) 450 US 464 at 478 per Stewart J. In US v Virginia (1996) 135 L Ed 2d 735 at 752: Gender differences do exist: that is, men as a group differ from women as a group not only on the basis of biological ‘sex’ differences, but on the basis of social ‘gender’ differences. JC Williams ‘Deconstruting Gender’ (1989) 87 Michigan LR 797, 800.

2. A marriage is void if the parties are not respectively male and female: Matrimonial Causes Act 1971, s 11.

3. Cf the ‘special tenderness… afforded to wives by the courts’ in cases of undue influence. Barclays Bank plc v O'Brien [1994] 1 AC 180 at 190, per Lord Browne-Wilkinson.

4. Women may also perceive men in that way, but because they normally lack power, their perceptions are not seen as threatening.

5. AM Superson ‘A Feminist Definition of Sexual Harassment’ reprinted in L Green and GE Panichas Sex, Morality and the Law (London: Routledge, 1997) p 359.

6. Above n 5, p 359.

7. European Commission Recommendation on the Protection of the Dignity of Men and Women at Work (1992) OJ C27/4.

8. BA Gutek ‘Understanding Sexual Harassment at Work’ [19921 6 Notre Dame J Law Ethics & Public Policy 335, 352; I Jensen and BA Gutek ‘Attribution and Assignment of Responsibility in Sexual Harassment’ (1982) 38 J Social Issues 121, 130–132; M Koss ‘Changed Lives: The Psychological Impact of Sexual Harassment’ in M Paludi (ed) Ivory Power: Sexual Harassment on Campus (New York SUNY Press, 1990) p 72; sexual harassment also causes physical consequences: eg stomach aches, nightmares, facial tics, cardiac ailments: A Bernstein ‘Treating Sexual Harassment with Respect’ (1997) 111 Harv LR 441, 461.

9. L Farley Sexual Shakedown: The Sexual Harassment of Women on the Job (London: McGraw Hill, 1978) p 181; C MacKinnon Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979) p 7.

10. M Rubenstein The Dignity of Women at Work (Office for Official Publications of the European Communities, 1988) para 3.7.

11. S Estrich ‘Sex at Work’ (1991) 43 Stanford LR 813, 821–822.

12. 40 to 80% of working women have experienced sexual harassment. DK Weisberg (ed) Applications of Feminist Legal Theory to Women's Issues (Philadelphia: Temple University Press, 1996) p 725; M Rubenstein above n 10, ch 2 (reporting studies from several EC member states).

13. J B Korn ‘The Fungible Woman and Other Myths of Sexual Harassment’ (1993) 67 Tul LR 1363 n 11. Similar figures were obtained in the UK by the Industrial Society's survey (Independent, 29 October 1998).

14. Eg the insults in Harris v Forklifi Systems Inc (1993) 126 L Ed 2d 295 at 300: ‘You're a woman, what do you know?’ V Schultz ‘Reconceptualising Sexual Harassment’ (1998) 107 Yale LJ 1683: reviewing an extensive number of decisions, she concluded that the goal of such harassment can be either: (i) to drive women away from the job; (ii) to reconcile the presence of women on the job by marking them as inferior; or (iii) to punish a woman who transgressed gender boundaries. And that this may extend to men harassing other men who they find effeminate and unsuited to a ‘man's’ job (pp 1768–1769).

15. Eg indecent assault, indecent exposure, obscene telephone calls, harassment at school, on public transport. See SSM Edwards Sex and Gender in the Legal Process (London: Blackstone Press, 1996) pp 322–330; J Conaghan ‘Gendered Harms and the Law of Tort’ (1996) OJLS 407,411.

16. LF Fitzgerald, K Fischer, S Swann ‘Why Didn't She Just Report Him?’ (1995) 51 J Social Issues 117.

17. Porcelli v Strathclyde Regional Council [1986] ICR 564. J Dine and B Watt ‘Sexual Harassment: Moving Away From Discrimination’ (1995) 58 MLR 343. Liability under the SDA is tort liability: s 66(1).

18. Burris v Azadani [1995] 1 WLR 1372.

19. R v Ireland [1997] 4 All ER 225; Telecommunications Act 1984, s 43(1).

20. Intentional harassment (Public Order Act 1986, s 4 A) and sending obscene letters or parcels (Malicious Communications Act 1988, s 1(1)).

21. Rookes v Barnard [1964] AC 1129 at 1221; W v Meah [1986] 1 All ER 935 at 942.

22. Burris v Azadani [1995] 1 WLR 1372.

23. [1897] 2 QB 57.

24. Prosecutions under other heads of liability were difficult because of the need to prove the defendant's intention hence that requirement was omitted from the PHA. See 287 HC Official Report (6th) col 783 (17 December 1996); The liability standard under the SDA is treated in De Souza v Automobile Association [1986] ICR 514. See C Bourn and J Whitmore Anti-discrimination Law in Britain (London: Sweet & Maxwell, 3rd edn, 1996) p 158.

25. On assault, see R F V Heuston and R A Buckley Salmond & Heuston on the Law of Torts (London: Sweet & Maxwell, 21st edn, 1996) pp 122–123; on harassment, Protection from Harassment Act 1997, s 1 (l)(b); on sexual harassment under the SDA, see De Souza v Automobile Association, [1986] ICR 514 Cf Wileman v Minilec Engineering [1988] ICR 318.

26. Re F [1990] 2 AC 1 at 73, per Lord Goff. This is analogous to the Roman law, where liability for injuria (which includes sexual harassment) lies if the act is contra bonos mores (Justinian's Digest 47.10.15.23).

27. N S Ehrenreich ‘Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law’ (1990) 99 Yale LJ 1177, 1192.

28. Law ‘not only reflects a society in which men rule women; it rules in a male way’: C MacKinnon ‘Feminism, Marxism, Methods, and the State: Toward Feminist Jurisprudence’ (1983) 8 Signs 635, 645.

29. T Lester ‘The Reasonable Woman Test in Sexual Harassment Law - Will It Really Make a Difference?’ (1993) 26 Indiana LR 227, 232–237, reviewing cases dealing with rape victims.

30. Q 703(a)(l) 42 USC § 2000e et seq: ‘It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin.’

31. R Martyn ‘A Feminist View of the Reasonable Man: An Alternative Approach to Liability in Negligence for Personal Injury’ (1994) 23 Anglo Am LR 334; J Conaghan ‘Tort Law and the Feminist Critique of Reason’ in A Bottomley (ed) Feminist Perspectives on the Foundational Subjects of Law (London: Cavendish, 1996); S Sheldon “‘A Responsible body of medical men skilled in that art…”: Rethinking the Bolam Test’ in S Sheldon and M Thomson (eds) Feminist Perspectives on Health Cure Law (London: Cavendish, 1998).

32. J Conaghan, above n 15, p 409.

33. Eg R S Adler and ER Pierce ‘The Legal, Ethical, and Social Implications of the “Reasonable Woman” Standard in Sexual Harassment Cases’ (1993) 61 Fordham LR 773,777–798.

34. Meritor Savings Bank v Vinson 477 US 57 (1986): quid pro quo harassment requires proof of a tangible job detriment, but this is unnecessary for hostile environment harassment.

35. 477 US 57 at 66–69.

36. Harris v Forklift Systems Inc (1993) 126 L Ed 2d 295 at 302.

37. 805 F 2d 611 at 620 (6th Cir 1986): extensively analysed in Ehrenreich, above n 27.

38. 805 F2d 611 at 622.

39. 805 F 2d 611 at 626 (emphasis added): relying on Note ‘Sexual Harassment Claims of Abusive Work Environment Under Title VII’ (1984) 97 Harv LR 1449.

40. 805 F2d 611 at 626–627.

41. Harris v Forklift (1993) 126 L Ed 2d 295 at 302, per O'Connor J.

42. § 102 Civil Rights Act 1991 42 USC § 1981 (1991 & Supp). The level of damages is ‘capped’ 42 USC 1981b(3). Prior to those amendments, plaintiffs were only entitled to ‘equitable’ remedies (eg reinstatement) because the aim of the Act is conciliation and the improvement of labour relations, but arguably many women would be reluctant to return to their workplace. Consequently, the potential of using traditional torts to gain damages was explored: K J Schoenheider ‘A Theory of Tort Liability for Sexual Harassnient in the Workplace’ 134 U Pa L Rev 1461 at 1474–1475 (1986).

43. Faragher v City of Boca Raton, Burlington Industries Inc v Ellerth 118 S Ct 2275 (1998).

44. Harris v Forklift (1993) 126 L Ed 2d 295 at 302 (emphasis added).

45. Oncale v Sundowner Offshore Services Inc 118 S Ct 998 (1998) (emphasis added) at 1003.

46. Gillming v Simmons Industries 91 F 3d 1168 (8th Cir 1996) abandoning the RW standard post-Harris is unduly coy, given that Harris has not expressly rejected the RW standard.

47. See Schoendeier, above n 42, suggesting that traditional torts will not work and recommending a new tort specifically designed to address sexual harassment.

48. ‘In my opinion in today's world and under the circumstances of this case sexual harassment should constitute a wrong or a tort’: Lajoie v Kelly (1997) 32 CCLT 115 at 122, per Smith J.

49. H Houghton-James Sexual Harassment (London: Cavendish, 1995) pp 127–136; J Conaghan ‘Feminist Perspectives on the Law of Tort’ in P Ireland and P Laleng (eds) The Critical Lawyers' Handbook 2 (London: Pluto Press, 1997).

50. Jones v Tower Boot Records [1997] IRLR 168.

51. Eg May LJ's reference to the ‘reasonable coloured secretary in like situation.’ in DeSouza v. Automobile Association, [1986] ICR 514 at 524.

52. Married Women's Property Act 1882, s 12 (granting wives rights to sue for the protection of their own property); Law Reform (Married Women and Tortfeasors) Act 1935, ss l(c) and 3 (granting wives a right to sue for all torts suffered as if they were a feme sole); Law Reform (Husband and Wife) Act 1962 (allowing wife to sue her husband).

53. M Chamallas with L K Kerber ‘Women, Mothers, and the Law of Fright: A History’ (1990) 88 Mich LR 814.

54. Lavallee [1990] 55 CCC 3d 97; State v Hundley 693 P 2d 475 at 479 (Kan 1985), describing battered women as: ‘terror-stricken people whose mental state is distorted and bears a marked resemblance to that of a hostage or prisoner of war. The homble beatings they are subjected to brainwash them into believing there is nothing they can do. They live in constant fear of another eruption of violence. They become disturbed persons from the torture.’ In State v Williams 787 SW 2d 308 (Mo App 1990) the test for self defence is modified to include an inquiry on ‘how the reasonable battered woman would have perceived and reacted in view of the prolonged history of physical abuse’ (pp 312–313). For critical comment, see A McColgan ‘In Defence of Battered Women Who Kill’ (1993) 13 OJLS 508.

55. R v Thornton (No 2) [1996] 2 All ER 1023. For criticism, see N Lacey and C Wells Reconstructing Criminal Law (London: Butterworths, 2nd edn, 1998) pp 591–597.

56. B Feldhusten ‘Discriminatory Damage Quantification in Civil Actions for Sexual Battery’ (1994) 44 U Toronto LR 133, 134; J Conaghan ‘Tort Litigation in the Context of Intra-Familial Abuse’ (1998) 61 MLR 132.

57. Several members of Parliament made reference to this during the Bill's Second Reading on 24 January 1997 (287 HC Official Report (6th series) col 781). For example, Peter Griffiths said that the Bill's ‘primary aim’ is to deal with ‘the dreadful cases of women being stalked’ (col 794) and Ms J Anderson (who had earlier in the year tabled a private member's anti-stalking Bill) noting the Bill dealt with a problem which the Police Federation acknowledged was predominantly faced by women, made the following remark: ‘It is unusual but welcome, that, in a Chamber so dominated by men, we should debate an issue of serious concern to women’ (col 813).

58. For discussion of ‘gendered harms’ see Conaghan, above n 15 pp 407–409, and Conaghan, above n 56 pp 134–135.

59. Burris v Azaduni [1995] 1 WLR 1372 1380, per Sir Thomas Bingham MR.

60. Eg actions for loss of consortium, harbouring a wife and criminal conversation. See F Pollock The Law of Torts (London: Stevens, 9th edn, 1912) pp 231–238.

61. An extensive summary of the law is in Butterworthv Butterworth [1920] P 126. This was a claim for damages in divorce under s 33 of the Matrimonial Causes Act 1857. It was held that damages should be awarded on the same principles and in the same manner as actions for criminal conversation which the Act had abolished. The statutory action was abolished by the Law Reform (Miscellaneous Provisions) Act 1970, s 4.

62. Butterworth v Butterworth [1920] p 126 at 137.

63. [1899] P 195 at 199.

64. Cf Atria v British Gas [1988] QB 304.

65. F Pollock, above n 60 p 231.

66. Thus, not only does tort law implicitly embody male standards, but is also expressly gender-specific. See also L M Finley ‘A Break in the Silence: Including Women's Issues in a Torts Course’ [1989] 1 Yale J Law & Feminism 41; J Conaghan, above n 56 pp 137–139.

67. Eg Easterling v State 267 P 2d 185 at 188 (OH Cr 1954): ‘There may be such a difference in the size of the parties involved or disparity in their ages or physical condition which would give the person assaulted by fists reasonable grounds to apprehend danger of great bodily harm and thus legally justified in repelling the assault by the use of a deadly weapon. It is conceivable that a man might be so brutal in striking a woman with his fists as to cause her death.’

68. ‘Female patients are disproportionately the targets of sexual exploitation’: Norberg v Wynrib (1992) 92 DLR (4th) 449 at 492, per McLachlin J, referring to a report by the Task Force on Sexual Abuse of Patients.

69. (1992) 92 DLR (4th) 449 at 457 (drawing here, inter alia, on contract doctrines of duress, unconscionability and undue influence).

70. (1992) 92 DLR (4th) 449 at 474 per Sopinka J.

71. J G Fleming The Law of Torrs (Sydney: Law Book Co Ltd, 8th edn, 1992) p 80, where he continues: ‘a girl who is silent to an amorous proposal cannot afterwards capriciously complain of an assault.’ (emphasis added.)

72. Martyn, above n 31; Conaghan, above n 31.

73. P Goodrich Oedipus Lex – Psychoanalysis, History, Law (Berkley: University of California Press, 1995) p 178.

74. Ibid at 178, 179.

75. DeSouza v Automobile Association [1986] ICR 514, IT Smith and GH Thomas Smith and Wood's Industrial Law (London: Butterworths, 6th edn, 1996) p 220.

76. T Lawson-Cruttenden and N Addison Blackstone's Guide to the Protection for Harassment Act 1997 (London: Blackstone Press, 1997) p 24.

77. Section 1(l)(b), establishing liability if defendant knows or ought to know that his acts amount to harassment; s 3(2), allowing damages for anxiety.

78. J Conaghan and W Mansell The Wrongs of Tort (London: Pluto, 2nd edn, 1998) ch 7; J Conaghan, above n 15.

79. 118 F 3d 1134 (7th Cir 1997).

80. 118 F 3d 1134, citing Baskerville v Culligan Intern Co 50 F 3d 428 at 43G1 (7th Ci 1994).

81. ‘An inevitable part of working life on the shop floor’: Wileman v Minilec Engineering Ltd [1988] ICR 318 at 325.

82. Rabidue v Osceola 805 F 2d 611 at 620–621 (6th Cir 1986), citing the District Court's decision at 584 F Supp 419 at 430 (ED Mich 1984).

83. Gross v Buggraf Construction Co 53 F3d 1531 at 1537 (10th Cir 1995) (emphasis added).

84. Rabidue v Osceola 805 F 2d 611 at 620.

85. Burns v McGregor Electronics Industries Inc 989 F2d 959 at 965 (8th Cir 1993).

86. Radtke v Everett 471 NW 2d 660 (Mich App 1991).

87. ‘A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a “great figure” or “nice legs.” The female subordinate, however, might find such comments offensive.’ Lipsett v University of Puerto Rico 864 F2d 881 at 898 (1st Cir 1988).

88. 895 F2d 1469 at 1486 (3rd Cir 1990). Although the court did not use a ‘RW’ standard, it restated the objective test in this way (at 1482): ‘a reasonable person of the same sex in that position.’

89. Bennett v Corroon & Black Corp 845 F2d 104 at 106 (5th Cir 1988) (cited with approval in Andrews v City of Philadelphia 895 F 2d 1469 (3rd Cir 1990).

90. 924 F2d 872 (9th Cir 1991).

91. 924 F 2d 872 at 878–879, citing K Abrams ‘Gender Discrimination and the Transformation of Workplace Norms’ (1989) 42 Vanderbilt LR 1183,1205.

92. 739 F2d 714 (5th Cir 1986).

93. T Lester above n 29 p 248, citing US Merit System Review and Studies.

94. But see Insitu Cleaning Co Ltd v Heads [1995] IRLR 4; Bracebridge Engineering Ltd v Darby [1990] IFUR 3; Barrett v Omaha Nat'l Bank 584 F Supp 22 (D Neb 1983); aff'd 726 F 2d 424 (8th Cir 1984).

95. Eg Scott v Sears, Roebuck & Co 798 F 2d 210 (7th Cir 1986); Weiss v Coca-Cola Bonling Co of Chicago 990 F 2d 333 (7th Cir 1993); DeAngelis v El Paso Municipal Police Officers Association 51 F 3d 591 (5th Cir 1995); Saxton v AT&T Co 10 F 3d 526 (7th Cir 1993). Yet in most of these cases, the victim was subjected to common law assaults.

96. Robinson v Jacksonville Shipyards 760 F Supp 1486 at 1525 (MD Fla 1991); Dey v Colt Construction and Development Co 28 F3d 1446 at 1456 (7th Cir 1994).

97. 895 F 2d 1469 (3rd Cir 1990).

98. Section 7(3) harassment ‘must involve conduct on at least two occasions’.

99. Scott v Shepherd (1773) 96 ER 525.

100. 21 F 3d 1572 (Fed Cir 1994).

101. Gleason v Meisrow Financial Inc 118 F 3d 1134 at 1144 (7th Cir 1997).

102. In Wileman v Minilec [1988] 1 CR 318 at 326 Popplewell J refused to allow evidence about a man's conduct to other women. Cf DeSouza v Automobile Association [1986] ICR 514 at 137 acts directed at others would be relevant if the actor could foresee that plaintiff would be affected by them.

103. It is beyond the scope of this paper to analyse the admissibility of this evidence. RL Weiner ‘Social Analytic Jurisprudence in Sexual Harassment Litigation: The Role of Social Framework and Social Fact’ (1995) 51 J Social Issues 167, 176–177 argues that the introduction of this social-scientific research is in conformity with the Supreme Court's opinion in Daubert v Merrell Dow Pharmaceuticals 125 LEd 2d 469 (1993). Roughly, two criteria have to be satisfied for expert opinion to be admitted: the opinion is considered necessary and the evidence is reliable.

104. Robinson v Jacksonville Shipyards 760 F Supp 1486 at 1503 (MD Fla 1991).

105. 760 F Supp 1486 at 1505.

106. [1994] IRLR 440 at 442: ‘she believed that photographs of this kind influenced the attitude and behaviour of men towards women by portraying women as playthings for men.’

107. J Conaghan, above n 31 p 49.

108. D Cornell The Imaginary Domain (London: Routledge, 1995) p 193.

109. Gleason v Meisrow L Financial Inc 118 F 3d 1134 1145–1146 (7th Cir 1997): ‘Novak's alleged sexual harassment was not troubling enough to Gleason that she bothered to report it to any of her supervisors, even though she was given ample opportunity to do so’; Cann v Unilift Ltd (1992, unreported) cited in R Collier Combating Sexual Harassment in the Workplace (Buckingham: Open University Press, 1995) p 55.

110. See Gross v Buggraf Const Co 53 F 3d 1531; Loftin-Boggs v City of Meridian 633 F Supp 1323 (SD Miss 1986); affd 824 F2d 971 (5th Cir 1987), where the courts said that if the woman finds this behaviour unwelcome she should say so.

111. 798 F 2d 210 (7th Cir 1986); see also Sauers v Salt Lake County 1 F3d 1122 (10th Cir 1993).

112. W Pollack ‘Sexual Harassment: Women's Experience vs. Legal Definitions’ (1990) 13 Harv Women's LJ 35, 72.

113. W Pollack, above n 112 at 55; Adler and Pierce, above n 33 p 803; for an example of retaliation, see Ross v Double Diamond inc 672 F Supp 261 (ND Tex 1987).

114. See the testimony of Ms Wagner in Robinson v Jackson Shipyards 760 F Supp 1486 at 1506–1507 (MDF1a 1991).

115. Fitzgerald, Fischer and Swann above n 16 pp 121–123.

116. For illuminating case studies, see: PA Morgan ‘Risking Relationships: Understanding the Litigation Choices of Sexually Harassed Women’ (1999) 33 Law & Society Rev 67.

117. 982 F Supp 586 (ND Ill 1997).

118. Victimisation is illegal under s 4 SDA (see Veebel v Leicesrer Federation of Tenants Associations (1989, unreported), cited in Collier above n 109 p 55).

119. This is where I disagree with Professor Cornell's view that the RW standard will inevitably reinstate the focus onto the woman rather than on the workplace and the behaviour itself (above n 108, pp 204–205). The focus is already on women. The RW standard corrects the focus by showing judges the reality of the woman's position thus preventing judges from imposing their (male) fantasies.

120. TL v Toys ‘R’ Us Inc 605 A2d 1125 at 1137 (NJ Super AD 1992); King v Hillen 21 F3d 1572 (Fed Cir 1994).

121. Dey v Colt Construction and Development Co 28 F 3d 1446 (7th Cir 1994).

122. Wileman v Minilec Engineering [1988] ICR 318 at 325 (and it was the evidence of three men which was relied on to find that the clothing was provocative!).

123. Meritor Savings Bank v Vinson 477 US 57 69 (1986).

124. Justinian's Digest 47.10.15.

125. 929 F 2d 484 (7th Cir 1991).

126. Cornell, above n 108, pp 191–192. See also Gross v Buggruf Construction Co 53 F 3d 1531; Loftin-Boggs v City of Meridian 633 F Supp 1323 (SD Miss 1986); aff'd 824 F2d 971 (5th Cir 1987).

127. Cornell, above n 108, p191 (emphasis added).

128. Wileman v Minilec Engineering [1988] ICR 318 at 322.

129. [1987] IRLR 397; see Rubenstein, above n 10 pp 85–86.

130. Morris v American Nat Can Corp 730 F Supp 1489 at 1495 (ED Mo 1989) where plaintiffs ‘use of profane language … could be part of plaintiff s efforts to fit into the environment at hand’.

131. Ukarish v Magnesium Elektron 31 Fair Empl Prac Cas (BNA) 13I5 (DNJ 1983), cited in Adler and Pierce, above n 33, p 788.

132. Robinson v Jacksonville Shipyards 760 F Supp 1486 (MD Fla 1991).

133. In Hollis v Fleetguard Inc 668 F Supp 631 (MD Tenn 1987) the court disregarded positive reports on the plaintiffs work performance ‘because of the natural and laudable human tendency to encourage improvement through praise’ but the disparaging remarks in the self-same forms were believed!

134. Gleason v Meisrow Financial Inc 118 F 3d 1134 at 1146 (7th Cir 1997).

135. Eg Rubenstein, above n 10.

136. Ehrenreich, above n 27, p 1217.

137. Estrich, above n 11; N R Cahn ‘The Looseness of Legal Language: The Reasonable Woman Standard in Theory and Practice’ (1991–92) 77 Comell LR 1398, 1401.

138. Eg Fuller v Oakland 47 F3d 1522 (9th Cir 1995).

139. Cahn, above n 137, p 1430.

140. Robinson v Jacksonville Shipyards 760 F Supp 1486 (MD Fla 1991).

141. See R L Wiener ‘Social Analytic Jurisprudence in Sexual Harassment Litigation: The Role of Social Framework and Social Fact’ (1995) 51J Social Issues 167; RL Weiner, L Hurt, B Russell, K Mannen, C Gasper ‘Perceptions of Sexual Harassment: the Effects of Gender, Legal Standard, and Ambivalent Sexism’ (1997) 21 Law and Human Behaviour 7I; D Tannen You Just Don't Understand – Women and Men in Conversation (London: Virago, 1992).

For a sceptical view, see BA Gutek and M O'Connor ‘The Empirical Basis for the Reasonable Woman Standard’ (1995) 51 J Social Issues 151.

142. Bernstein, above n 8 p 473.

143. Berstein, above n 8 p482.

144. Rubenstein, above n10, para 6.18.

145. ‘[A]bstraction is an ideology as much as a fact, and what matters is what gets abstracted and how’: N Lacey Unspeakable Subjects (Oxford: Hart, 1998) p 200, expressing reservations about the strategy reflected in this paper.

146. L Bender ‘From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care in Law’ (1990) 15 Vermont LR 1 (partly reprinted in H Barnett Sourcebook on Feminist Jurisprudence (London: Cavendish, 1997) pp 203 et seq, defending feminism against the essentialism critique by maintaining that the class of women is still a meaningful one for analysis.

147. L M Finley ‘Breaking Women's Silence in the Law: The Dilemma of the Gendered Nature of Legal Reasoning’ (1989) 64 Notre Dame LR 886.

148. 924 F 2d 872 at 879, reflecting Bender's views, above n 146.

149. Bernstein, above n 8 p 477; Cahn, above n 137 p 1419, concluding that ‘[t]he multiplicity of voices which emerges from the experiences of individual clients is the undoing of the reasonable woman.’

150. Bernstein, above n 8 p 478.

151. Berstein, above n 8 p 476.

152. K A Kenealy ‘Sexual Harassment and the Reasonable Woman Standard’ (1992) 8 Lab Law 203,208.

153. Ellison v Brady 924 F 2d 872 at 880.

154. A Altman ‘Making Sense of Sexual Harassment Law’ (1996) 25 Philosophy and Public Affairs 36, 64.

155. Adler and Pierce, above n 33 pp 814–5.

156. Ellison v Brady, above n 90 p 881.

157. J Finnis ‘Intention in Tort Law’ in D G Owen (ed) Philosophical Foundations of Tort Law (Oxford: Oxford University Press, 1997) pp 244–245.

158. P Cane & Anatomy of Tort Lav (Oxford Hart, 1997) pp 32–33. See Collins v Wilcock [1984] 1WLR 1172.

159. W V H Rogers Winfield & Jolowicz on Tort (London: Sweet & Maxwell, 15th edn, 1998) p 66, citing Wilson v Pringle [1987] QB 237 at 249.

160. Wells v Cooper [1958] 2 QB 265.

161. Hedley Byrne v Heller [1964] AC 465 at 486, per Lord Reid.

162. A risk noted by Conaghan and Mansell, above n 78 p 185.

163. Section l (2) stating that a person ought to know conduct is harassment ‘if a reasonable person in possession of the same information would think the course of conduct amounted to harassment’ must allow for consideration of the perception of women to be included, and not just the perception of the harasser.

164. Adler and Pierce, above n 33 pp 818–822.

165. Marc Rich & Cov Bishop Rock Marine Co (The Nicholas H) [19961 1 AC 211.

166. In Oncale v Sundowner Offshore Services Inc (see above n 45 at 1002).

167. ‘[A] judge imposing [an exclusion zone order] must be careful not to interfere with the defendant's rights more than is necessary in order to protect the plaintiffs’: Burris v Azadani [1995] 1 WLR 1372 at 1381, per Schiemann W.

168. ‘The court must maintain a balance between the right of the defendant to do what he likes with his own land and the right of the plaintiff not to be interfered with’: Baxter v Camden BC [1999] 1 All ER 237 at 242, per Tuckey LJ.

169. ‘The law of defamation has two basic purposes: to enable the individual to protect his reputation, and to preserve the right of free speech. These two purposes necessarily conflict. The law of defamation is sound if it preserves a proper balance between them’: Report of the Committee on Defamation Cmnd 5909 (1975) para 19.

170. R Dworkin Law's Empire (London: Fontana, 1986) p 255.

171. Cahn, above n 137 p 1432.

172. In this respect it follows C A MacKinnon Feminism Unmodified (Cambridge, Mass: Harvard, 1987).

173. T Lawson-Cruttenden and N Addison, above n 76 p 23, say that the Act ‘clearly contemplates a commonsense judgment’ when defining harassment. As noted, common sense perceptions need to be reshaped.

174. Two problems noted in Conaghan, above n 56 pp 145–150.

175. DL Rhode Justice and Gender (Cambridge, Mass: Harvard University Press, 1989) pp 236–237.

176. In a similar vein, Conaghan, above n 15 p 431: ‘Legal change is not the starting point nor the end result of the feminist project but, as an inevitable part of that project, it must be addressed.

177. Above n 108 p 195.