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Copyright (c) 2001 The College of William and Mary
William and Mary Journal of Women and the Law


Fall, 2001

8 Wm. & Mary J. of Women & L. 73


Catherine L. Fisk *


Humiliation has a significant impact on the working lives of many people. That humiliation should be the basis for making certain employment practices or incidents actionable we often take for granted. Yet, we lack an encompassing theory of when humiliation is, or should be, actionable. Courts and scholars have focused on particular forms of humiliation, notably those associated with racial and gender harassment, invasions of privacy, and a few "nearly bizarre" cases of wrongful termination. 1 However, no one has attempted systematically to define when workplace humiliation should be actionable.

The explicit premise of the various laws that address workplace humiliation is that work life is full of humiliating experiences and not all of them can or should be illegal. Therefore, no intentionally inflicted psychological harm is actionable unless the behavior is "outrageous" and the victim suffers distress. 2 Sex-, race-, or other status-based harassment is legal unless it is so pervasive or severe as to render the workplace "unreasonably" hostile. 3 All sorts of annoying or humiliating invasions of privacy are permissible unless a court finds both that the employer led employees to believe they could expect privacy and that the invasion was "highly offensive" 4 or "serious." 5 By condoning less than egregious forms of humiliation, the law systematically underestimates the corrosive effect of workplace humiliation. This largely ad hoc approach to workplace humiliation provides little predictability.

If courts better appreciated the debilitating nature of certain ...
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