Not Quite Rights: How the Unwelcomeness Element in Sexual Harassment Law Undermines Title VII's Transformative Potential

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.