Taking Discrimination Seriously: Oncale and the Fate of Exceptionalism in Sexual Harassment Law

In both the case law and the literature, sexual harassment is treated as an exceptional and unique form of discrimination. In this Article, Professor Willborn expands on the Supreme Court's recent decision in Oncale v. Sundowner Offshore Services, Inc. to argue that this exceptionalism should be rejected and that harassment law should return to its roots in the broader body of antidiscrimination law. Professor Willborn begins by articulating the contours of a discrimination-centered model of sexual harassment and explaining how it differs from currently accepted views. He then reviews the Supreme Court's recent cases on sexual harassment, concluding that they support a discrimination-centered model of harassment, but are inconsistent in important ways with standard current views.

Finally, Professor Willborn examines academic theories about sexual harassment law through the lens of the discrimination-centered model, and concludes that the model both applies more widely and is more broadly protective than the visions of harassment forwarded in the academic literature.