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Not Quite Rights: How the Unwelcomeness Element in Sexual Harassment Law Undermines Title VII's Transformative Potential
Ho, Grace
Ho, Grace
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Abstract
When particular social groups attempt to challenge social norms through legal reform, they generate transformative law. Transformative law, according to legal scholar Linda Hamilton Krieger, emerges when a reformist group seeks to harness the power of law to advance its program of normative and institutional change. If transformative laws are to impact social norms in a substantive way, however, the reformist influences underlying the laws must predominate throughout the process of implementation. If legal changes intended to displace pre-existing norms, social meanings, and institutional practices serve to subtly reassert these pre-existing norms in a formalized legal regime, their transformative potential is undermined. Krieger describes the resulting socio-legal capture of legal reforms as the antithesis of transformative law.