The Failures of Title VII: Inequality, Injustice, and Silence in Sexual Harassment Litigation
This paper examines the failures of sexual harassment litigation through the legal avenue of Title VII and evaluates the evolving legal theory and laws with regard to sexual harassment. Specifically, this essay will examine signpost cases in Title VII through analyzing the contributions of four feminist legal theorists, Catherine MacKinnon, Drucilla Cornell, Vicky Schultz, and Anita Bernstein. Finally, this essay will argue for legal actions and interventions regarding Title VII through legally redefining sexual harassment, specifying criteria to determine culpability of harassment, and streamlining the process of making a sexual harassment claim with the Equal Employment Opportunity Commission.
I would like to thank my professor Dr. Rosanne Kennedy for guidance, feedback, and support throughout this process. I would also like to thank the Gallatin School of Individualized Study and New York University for providing me with the educational resources and inspiration to conduct unique research in the field of feminist legal theory. In addition, I would like to thank my team at Hillary For America and Secretary Hillary Clinton for inspiring me to do all the good I can, for all the people I can, in all the ways I can, as long as I can, no matter the circumstances or political atmosphere. Last but not least, I would like to thank my parents, Phillip and Caroline Wurm, for endowing me with the opportunity to pursue my interests and dreams at New York University, and Jacob Simorka, for your utmost love and support throughout the past months.
In 1977, feminist legal scholar and activist Catherine MacKinnon published a radical text titled Sexual Harassment of Working Women, irrevocably changing the American justice system. In this benchmark work, MacKinnon successfully argued that the pervasive sexual harassment of women by men in the workplace directly falls under Title VII of the 1964 Civil Rights Act as a form of discrimination. MacKinnon, along with other feminist activists of her generation, created the legal recourse for sexual harassment as discrimination through Court precedent.
Following the prima facie case (a case in which MacKinnon was co-counsel), a series of harassment lawsuits created touchstone developments of sexual harassment litigation under Title VII. These cases first established a way to prosecute sexual harassment, seek compensation for damages, encourage the recognition of sexist environments, and bring to light unreported harassment.
However, Title VII was not an overnight success. Instead, sexual harassment litigation assumed and propagated a gender binary rooted in heteronormativity, focused on economic compensation and redress while failing to consider the true humiliation of the complainant evidenced in their experience. Further, it served to create paternalistic and sexually repressive legal norms, and adjudicated harassment cases using convoluted and detrimental criterion.
Title VII fails to accomplish its original purpose: to end discrimination in the workplace. As a matter of fact, Title VII and its corresponding litigation explicitly fail to protect the majority of Americans. Employment discrimination complainants are not winning their cases as much as other complainants by a large margin: “During the period 1979 through 2006, employment discrimination plaintiffs won approximately 15 percent of their cases litigated in the federal courts, whereas plaintiffs suing for other causes won 51 percent of their cases” (Gregory 282).
Unfortunately, several studies have shown that the annual EEOC charge filings severely underrepresent the actual number of sexual harassment cases in the workplace. For example, “One survey reported that 60 percent of women in management positions have experienced some form of sexual harassment during their work lives, but only 14 percent of these women have reported the harassment and less than 1 percent have filed a charge or commenced legal actions” (Gregory 132). Gregory posits, “If all of these women formally charged their employers with sexual harassment, the annual EEOC filings would number in the hundreds of thousands” (Gregory 132).
The 15 percent statistic that Gregory references accounts only for sexual harassment cases that were litigated. In actuality, it has been estimated that one in three women have been harassed at work (Vagianos). In 2015, only 6,822 complaints of sexual harassment at work made it to the Equal Employment Opportunity Commission, the government agency that was created to combat workplace discrimination (Equal Employment Opportunity Commission). Of the claims brought to the EEOC, the agency dismissed 3,770, which is over half, citing “no reasonable cause to believe that discrimination occurred” (Equal Employment Opportunity Commission). Of the remaining complaints, 1,690 cases gave up (Equal Employment Opportunity Commission). Only 2.1 percent of all cases had positive economic benefits after filing their formal complaint with the Equal Employment Opportunity Commission. Over 25 percent of cases filed and accepted by the Commission had their charges closed for administrative reasons, which include: “failure to locate charging party, charging party failed to respond to EEOC communications, charging party refused to accept full relief, closed due to the outcome of related litigation which establishes a precedent that makes further processing of the charge futile, charging party requests withdrawal of a charge without receiving benefits or having resolved the issue, no statutory jurisdiction” (Equal Employment Opportunity Commission). Most importantly, though, only twenty cases of the complaints went to trial through the Equal Employment Opportunity Commission. Thus, in 2015, the chance that a complaint filed through the Equal Employment Opportunity Commission would also be filed in the American legal system was 0.2 percent.
Current Title VII litigation does not protect the majority of American workers. Sexual harassment lawsuits are disproportionately lost; when they are won, the redress is merely economic. Therefore, we need to rethink the law itself and expand it to include a more comprehensive view of inequality in the workplace. Since MacKinnon, other feminist legal theorists have considered ways to reconstruct Title VII litigation. Drucilla Cornell, Vicky Schultz, and Anita Bernstein theorize different ways to reconfigure sexual harassment litigation, addressing the larger cultural issues that are premised in ongoing unequal relations. Drucilla Cornell argues that Title VII codifies heteronormative sexual identities and gender orientations. Further, she argues that due to the repressive environment in which women are raised and in which they work, the failure of the legal system to acknowledge self-respect is at heart a failure of civil rights, thereby demanding a cultural change. Anita Bernstein suggests replacing the “reasonableness person standard” with a “respectful person standard” in the adjudication of workplace harassment lawsuits. Legal scholar Vicky Schultz advocates for the de-emphasis of the harm caused by the sexual aspect of sexual harassment, attempting to broaden litigation to account for alltypes of harassment at the workplace.
In the “Theoretical Frameworks” section, I analyze and critique major theoretical works that contribute to modern sexual harassment litigation. These works include the Civil Rights Act of 1964, Catherine MacKinnon’s Sexual Harassment of Working Women, feminist legal theorist Drucilla Cornell’s The Imaginary Domain, feminist legal theorist Vicky Schultz’s “Reconceptualizing Sexual Harassment”, and feminist legal theorist Anita Bernstein’s “Treating Sexual Harassment with Respect”. In the ”Examination of Legal Cases Before the Supreme Court” section, I examine eight legal cases that act as signposts of Title VII litigation through the lenses of the feminist legal theorists.I thus examine the creation and trajectory of sexual harassment litigation in the American justice system. I further show how this legal trajectory silences complainants, represses and disavows sexuality, protects only a limited amount of people, and finally, prioritizes heterosexual normativity over true equality. In the “Conclusion” section, I explore how the trajectory of this litigation might change. I argue the law should streamline the formal process to register and litigate a complaint of sexual harassment as argued by Schultz; the definitions and guidelines of sexual harassment must be refined potentially through using Bernstein’s respectful person standard; and finally, the law needs to allow for sexual agency, as Cornell argues.
Sexual harassment litigation through Title VII cannot and should not endure as it is currently written. The specifics speak for themselves: to reiterate, one in threewomen have been harassed at work, yet in 2015, only 6,812 complaints were filed at the EEOC. Millions of incidents of harassment and discrimination therefore are never prosecuted—they are neglected by the American justice system. Of those complaints that are registered, only 0.2 percent are carried out in Court—these complainants, too, are mostly failed by the American justice system. The relative success of Title VII must be problematized. Americans are not truly protected from harassment by our legal system. Title VII’s failures must be addressed and redressed. The law itself must be redefined or harassment litigation should be redesigned. The trajectory of this litigation must change; if not, national inequality, in and outside of work, will proliferate.
1964 Civil Rights Act
Title VII begins with the 1964 Civil Rights Act. The Civil Rights Act of 1964 is a monumental piece of legislation signed into law under the Johnson administration, originally called for under the Kennedy administration. It prohibits discrimination on the basis of sex, gender, race, and national origin. Importantly, the Civil Rights Act specifically designated sex as a protected class.As Social Policyasserts, “While court cases and laws such as the Civil Rights Acts of 1957 and 1960 and the Equal Pay Act of 1963 offered some workplace rights and equal pay laws for minorities and women, President Lyndon Johnson's (1908–1973) project, the Civil Rights Act of 1964, was the first to provide strong legal protection against workplace discrimination” (Social Policy: Essential Primary Sources).Title VII of the Bill specifically states:
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; or to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. (Title VII)
Ignoring the blatant use of male pronouns and insinuation of patriarchal power, Title VII sought to protect employees against workplace discrimination in hopes of ending racial and gender prejudice in the working world. Working within the American capitalist structure, Title VII allowed victims to sue companies who “usually have deeper pockets” instead of individual harassers (Saguy 30). Title VII attempted to ensure legal action against discrimination of protected classes using the force of a government agency, the Equal Employment Opportunity Commission. By including the category of sex, Title VII added the specification of gender as a protected class (Dirksen). However, the term “sexual harassment” is noticeably omitted. Until approximately ten years later, Title VII was not directly used to legally fight workplace sexual harassment. To be clear, Title VII, at its inception, was not devised to prosecute workplace sexual harassment cases.
Sexual Harassment of Working Women, Catherine MacKinnon
MacKinnon’s goal in writing the Sexual Harassment of Working Women in 1977 was to radically change the American legal system by creating an avenue to protect women from sexual harassment. In the preface, MacKinnon says, “I hope to bring to the law something of the reality of women’s lives” (Mackinnon xii). The reality MacKinnon was alluding to, of course, was the systemic sexual harassment of working women. In the broadest sense, MacKinnon defines sexual harassment as “the unwanted imposition of sexual requirements in the context of a relationship of unequal power. Central to the concept is the use of power derived from one social sphere to lever benefits or impose deprivations in another” (MacKinnon 1). MacKinnon’s early definition is not based solely on sex/gender, focusing instead on the commodification of power through the act of harassment. However, she does not neglect the issue of gender entirely, writing, “American society legitimizes male sexual dominance of women and employer’s control of workers” (MacKinnon 1).
She goes on to clarify that this harassment of women is not biological or natural, but exists from a social context (MacKinnon 2). At the time of writing, the American legal system, ignored the confluence of harassment as a social issue, judging women workers in one of two ways: either based “in terms of their ‘humanity,’ which has meant characteristics women share with men, or in terms of their womanhood, which has meant their uniqueness” (MacKinnon 3). These two standards do not overlap; in the law, women are either considered “as human” or “as woman”, but not both (MacKinnon 3). The legal needs of women as both female and human, when separated, are ignored (MacKinnon 3). When women have been legally defined “as women”, they can suffer from “protective laws” that shield women from work stress, but exclude them from job benefits (MacKinnon 3). When women are legally defined “as humans,” such as in insurance plans, their female needs are not protected; in many cases decided by the Supreme Court, companies with insurance plans that cover every work disability, including disabilities unique to men such as erectile dysfunction, but did not cover pregnancy, are not considered legal discrimination (MacKinnon 3). As MacKinnon notes, women are subjugated to the patriarchal hegemony, and their needs are spliced between their dual status as “female” or “human”.
MacKinnon outlines two different concepts of discrimination: the “differences” approach and the “inequality” approach, which are logistical concerns that underlie discrimination cases (MacKinnon 4). MacKinnon describes the origins of this theory:
Applied, to sex, the two approaches flow from two underlying visions of the reality of sex in American society. The first approach envisions the sexes as socially as well as biologically differentfrom one another, but calls impermissible or “arbitrary” those distinctions or classifications that are found preconceived and/or inaccurate. The second approach understands the sexes to be not simply socially differentiated but socially unequal. In this broader view, all practices which subordinate women to men are prohibited. The differences approach, in its sensitivity to disparity and similarity, can be a useful corrective to sexism; both women and men can be damaged by sexism, although usually it is women who are. The inequality approach, by contrast, sees women’s situation as a structural problem of enforced inferiority that needs to be radically altered. (MacKinnon 4-5)
These different approaches are the foundation for her legal theory of sexual harassment as discrimination. The two approaches, the inequality approach and the differences approach, are examples of discrimination that are covered under Title VII as well as the Equal Protection Clause of the Fourteenth Amendment(MacKinnon 6). Under the inequality approach, sexual harassment disadvantages women because of their gender, to their detriment in the workplace (MacKinnon 6). Under the differences approach, sexual harassment becomes sex discrimination per se—the practice injures one group because of their gender in a neutral employment sphere (MacKinnon 6). MacKinnon posits Title VII as the best avenue to litigate against sexual harassment as both types of discrimination are explicitly explained and protected against.
MacKinnon launches her argument by describing the experience of women at work. She argues that because of tokenism, vertical segregation, and horizontal segregation, which are all forces that lead to women’s income and economic inequality, women as a whole are discriminated against and are not equal in the field of work. Due to the fact that women are unequal at work, the sexual harassment of women, who are already universally disadvantaged, serves to keep women in these unequal positions and reinforces women’s inferior status (MacKinnon 10).
Women are systemically disadvantaged at work, both through vertical and horizontal stratification. MacKinnon’s horizontal stratification theory evidences itself through the segregation of women into specific jobs, or occupational categories as a whole, that must be filled by women because of their gender(MacKinnon 10). Women are bound to these jobs that are typically at the bottom of the socioeconomic spectrum—primarily due to their sex and implicit sexuality (MacKinnon 10). MacKinnon’s vertical stratification theory evidences itself through the proliferation of male superordinates, with men in the position of “hiring, firing, supervising, and promoting of women” (MacKinnon 12). Simply put, women work as men’s workplace subordinates—either with inferior work, through horizontal stratification, or at inferior positions at the same work, through vertical stratification (MacKinnon 13). Sexual harassment in the workplace, where women are already socially inferior fortifies the social inequality of women by reinforcing their inferiority based on their sex.
MacKinnon then clarifies her legal theory, aiming to protect women as a protected class against sexual harassment, by describing the experience of sexual harassment. She states the experience centers around three main events of the sexual harassment: “the advance, the response, and the employment consequence”(MacKinnon 31). In terms of legal recourse, MacKinnon argues the advance distinguishes between a good lawsuit and a less good lawsuit; the response sets a “standard of proof”; and the employment consequence “draws a line between a legal claim and no claim at all” (MacKinnon 32).
Most significantly, MacKinnon divides sexual harassment into two different forms: quid pro quo and condition of work. MacKinnon defines quid pro quoas a category “by the more or less explicit exchange: the woman must comply sexually or forfeit an employee benefit” (MacKinnon 32). MacKinnon describes three possible scenarios of quid pro quo harassment:
In situation one, the injurious nexus is between the imposition of the sexual requirement and the employment retaliation following upon its rejection… Situation two… requires [inquiry] into the impact of compliance. Even less is known about women who comply than those who refuse. But there is little to suggest that women who meet sexual conditions receive job benefits… The “other side” of sexual harassment is commonly thought to be raised by situation three, in which women who comply with sexual conditions are advantaged in employment over men or over women who refuse. Despite the indications that few benefits redound to the woman who accedes, much folklore exists about the woman who “slept her way to the top” or the academic professional woman who “got her degree on her back” (MacKinnon 33-37).
The second claim, described by Raymond Gregory, a civil rights theorist, is the hostile work environment harassment, where the victim and employee work in an environment “that is replete with sexual innuendo, intimidation, or other form of harassing conduct that are sufficiently severe or persuasive to alter the terms and conditions of a woman’s employment” (Gregory 131). The “condition of work” type of harassment, as MacKinnon explains, is less clear but more pervasive (MacKinnon 41). This division and explicit definition, particularly of the hostile work environment, tend to muddle court legal theory. Even MacKinnon, the creator of this definition, admits that the definition is unclear.
MacKinnon also describes the acceptance or compliance of a woman who was sexually harassed. Originally and definitively, MacKinnon asserts “the victim’s active cooperation with, or submission to this [sexual harassment] behavior is relatively irrelevant to its occurrence” (MacKinnon 43). As exemplified in this section, concepts like compliance and consent are obfuscated. Through detailing a cocktail waitress’s experience of sexual harassment, MacKinnon calls attention to tolerance or “playing along” with sexual harassment as noncompliance, not consent (MacKinnon 44).Explicit rejection, while proving sexual advances are unwanted, can also be dangerous for the women victims, as rejection might call forth retaliation by the sexual harasser (MacKinnon 46).
MacKinnon then delves into legal cases to fully document and explore the implications of sexual harassment in American jurisprudence. Through describing and summarizing various cases, MacKinnon highlights the socially created, systemic character of gender status being significantly disadvantaged first in the working world, then second in the American legal field. In each of the cases, it becomes clear that court precedent penalizes women for their deviation from a male standard, as they are not properly protected in a “woman standard” nor in a “human standard” (MacKinnon 145).
The Supreme Court professes that it adjudicates on the premise of being sex- (and gender-) neutral (MacKinnon 145). However, sex cannot be adjudicated neutrally in the Court, as aforementioned, and as MacKinnon asserts, “the relationship of sexuality to gender is the critical link in the argument that sexual harassment is sexual discrimination” (MacKinnon 151). Both gender and sex are incredibly complex–MacKinnon distinguishes three dimensions of gender: “physical characteristics, gender identification, and sex role behavior” (MacKinnon 151). Cataloging and elaborating on different parts of gender highlight MacKinnon’s radical feminist view that gender is a social construct (MacKinnon 154). MacKinnon even concedes that “socially, as well as biologically, gender is not as rigidly dimorphic as it is commonly supposed to be in legal discussions of equality” (MacKinnon 155). Nevertheless, it is still the mainstream rigid gender dimorphic that further perpetrates the sexual harassment and social inequality of women (MacKinnon 156). Moreover, as MacKinnon argues, the law internalizes gender discrimination and conventional role expectations which thereby enforces traditional male/female norms, furthering social inequality (MacKinnon 158). At its core, before MacKinnon’s intervention, the law treated women as separate but equal.
Finally, MacKinnon returns to her two approaches: the “differences” approach and the “inequality” approach (MacKinnon 195). Through the inequality approach, it is clear that sexual harassment of working women is employment discrimination based on gender: women are harassed because they are women (MacKinnon 174). This is supported through the tradition of exchanging sex for survival, which assures women’s economic dependence and inferiority— through the expressed male role of sex pattern of coercive sex toward women, and through women being defined by their sexuality—and as such, the violations against women are abuses of women (MacKinnon 174). The differences approach, or how to tell sexual harassment happens because one is a woman rather than to a person who just happens to be a woman, evidences itself through the extreme disparate treatment of women: “Sexual harassment limits women in a way men are not limited. It deprives them of opportunities that are available to male employees without sexual conditions” (MacKinnon 193).
Harassment, including sexual harassment, is about maintaining one’s own power and subverting others’. While sexuality is not unique to women, MacKinnon aptly notes that when “one gender is victim to a practice as to which the treatment of sexes can be compared, the practice can be considered sex-based” (MacKinnon 193). Sexual harassment, which thwarts women’s economic and social power, is thus sex-based discrimination, which is protected under Title VII of the Civil Rights Act. MacKinnon argued there is a reason why sexual harassment episodes appear commonplace: it is due to the social and economic inequality of women (MacKinnon 219). Women’s subordination, social, economic, and otherwise are naturalized, even in the legal sphere (MacKinnon 220). This disparity is socially constructed and MacKinnon argues that discrimination law “exists to remedy such disparities” (MacKinnon 220). Protecting women from sexual harassment through the legal avenue of Title VII would thus “guarantee an equality that begins to comprehend womanhood as distinct and fully human,” suturing categories that were separate through previous legal precedent (MacKinnon 221).
The Imaginary Domain, Drucilla Cornell
Almost twenty years after Sexual Harassment of Working Women, in her book The Imaginary Domain,feminist legal scholar Drucilla Cornell argues women are not equal in the law, evidenced primarily through sexual harassment litigation, and there is therefore a need for legal intervention. Using a psychoanalytic framework, Cornell insists on a “minimum degree of individuation” that she deems are “necessary for the equivalent chance to transform… into individuated beings who can participate in a public and political life as equal citizens” (Cornell 4). She argues that to fully be an “individuated being,” one must have the possibility to evolve as a person, being free to explore and imagine all aspects of ourselves, including our sexuality. These minimum conditions are:
1) Bodily integrity,
2) Access to symbolic forms sufficient to achieve linguistic skills permitting the differentiation of oneself from others, and
3) The protection of the imaginary domain itself,
which allow everyone a chance of freedom and a freedom to transform oneself (Cornell 4, 5).
Cornell takes issue with MacKinnon and her framework. She contends with MacKinnon’s argument that “femininity is nothing but the production of woman as ‘fuckees,’” which led to this formal equality that she deems unacceptable (Cornell 21). Cornell contends MacKinnon’s framework presents sexual harassment as a universal truth for women, continuing the damaging cycle of subordination, and thus, “reinscribing the very gender identities [and encodes “the wounds of femininity”] she is seeking to contest” (Cornell 22, 24). Cornell states that MacKinnon’s position is that we are “women” because we “have sex in and through the structures of heterosexual domination”; she goes on to argue that MacKinnon does not allow for the “minimum conditions of individuation,” and thus, her theory prioritizes heterosexual normativity over true equality. (Cornell 23).
However, Cornell, like MacKinnon, describes the importance of sex in her theory of equality. Sex is basic to who we are (Cornell 6). Sex and sexuality are unique to each individual and their personality (Cornell 6). Cornell argues that humans are, by nature, “sexuate beings”, and as such, sexuate beings comprise both “lives of pleasure as well as reproduction” (Cornell 7). Finally, sex is an internalized identity, which includes the “assumption of personae imposed by the gender divide” (Cornell 7). As Cornell argues, to deny human beings their sexuality, which includes the critical aspects of sex—identifying all humans as sexuate beings, that humans have sexual relations, that sex is an internalized identity, “and the assumption of a personae imposed by the gender divide”—is to deny them “a part of their identity” (Cornell 7-8). Here, Cornell’s argument is not just centered on the female gender, unlike Catherine MacKinnon’s theories. Cornell’s argument protects and leaves open all possibilities of sex and sexuality, and the denial of sex, thus including the queer community in legal protection.
This legal protection, for Cornell, extends to sexual privacy, or what she has dubbed the “imaginary domain” (citation?). This domain is a psychic space in which sexuate beings are allowed a freedom that is tied to “who we are and who we wish to be as sexuate beings” (Cornell 8). Cornell’s theory of the imaginary domain is rooted in self-respect; primarily, it is where we have the ability to imagine, and thus, become fully human (Cornell 9). She is building on John Rawls’ theory of self-respect as a primary good, but also radically altering it by transposing his theory to her concept of the imaginary domain(Cornell 9). As a result of naturalized over-sexualized work environments, women have been “systemically denied” the Aristotelian principle, or the capability of living their best life, a eudemoniathat includes being a sexuate being (Cornell 187, 212). Cornell identifies a “fundamental abuse of power” with sexual relations imposed on women both immediately in the present, and historically, abuses of power by their male counterparts that follow women to the workplace (Cornell 226). Further, due to the repressive environment in which women are both raised and work, the ignoring of self-respect by the legal system is a failure of freedoms. Self-respect functions as an expectation that each one of us would, could, and will demand for ourselves to be treated as equal citizens (Cornell 9). To have self-respect would allow Americans of all sexes the expression of sexual imaginary (Cornell 9). Cornell argues when Americans are not allowed to express their sexuality, they are degraded; they are similarly degraded when they are defined by their sex, or when it is treated as “antithetical to equal personhood and citizenship” (Cornell 10).
The current framework of sexual harassment, in Cornell’s analysis, proliferates a formal division of the public character of women--a division that denotes bad girls from good girls. Basing sexual harassment claims on variations of “unwelcomeness” encourages both the public and the court to police the complainant’s behavior, whether it is provocative or virginal(Cornell 191). The bad girl (a mistress, whore, fantasy object, etc.) is abject in her desirability (Cornell 191). When “bad girls” claim sexual harassment, the court does not consider the advances unwelcome, the bad girl temptsis perceived as tempting men and inviting their sexuality. Good girls, on the other hand, are virginal and motherly—they are not desired in a sexual manner. When “good girls” claim sexual harassment, the court does not consider the advances as unwelcome, because it is perceived that the good girl would not be desired (Cornell 192). Title VII litigation, and the frameworks of harassment by MacKinnon, disallow credibility by disallowing sexual freedom (Cornell 193). As Cornell argues, MacKinnon’s theories do not allow for sexual agency of the complainant, by ignoring or explicitly disavowing women as sexual beings.
Cornell asks, “How do we both endorse sexual freedom and at the same time recognize the legitimacy of feminist claims for equal citizenship?” (Cornell 169). Instead of stifling sexual freedom in and outside of work, Cornell wanted to allow for the possibility for every person to be sexually free, even while at work, while still allowing for the possibility for self-respect. Primarily, Cornell accomplishes this task through redefining sexual harassment. She defines sexual harassment as a phenomenon that consists of:
a) Unilaterally imposed sexual requirements in the context of equal power, or
b) The creation and perpetuation of a work environment which enforces sexual shame by reducing individuals to projected stereotypes or objectified fantasies of their “sex” so as to undermine the primary good of their self-respect, or
c) Employment-related retaliation against a subordinate employee, or, in the case of a university, a student, for a consensually mutually desired sexual relationship (Cornell 170).
Her definition allows for the protection of the imaginary domain and consequently allows for the chance of sexual freedom. Part A revises the current legal definition of quid pro quo sexual harassment, a definition largely contrived by MacKinnon (Cornell 171). Part B replaces the standard for sexual harassment of a hostile and abusive work environment, another construct originally identified by McKinnon, by replacing a fault-based tort scheme with a more equality-driven analysis (Cornell 171). Denying self-respect, or the possibility of self-respect, sequesters sexual freedom (Cornell 185). Part C replaces per se rules to allow for more sexual freedom by focusing solely on “the wrong abuse of power” (Cornell 173).
“Reconceptualizing Sexual Harassment”, Vicky Schultz
Feminist legal scholar Vicky Schultz, similar to Drucilla Cornell, problematizes sexual harassment litigation in her article “Reconceptualizing Sexual Harassment”. Published by the Yale Law Journal, her article focuses on the “desire-dominance paradigm”, a paradigm that places male-female sexual advances at the center of harassment litigation, where “a male supervisor’s sexual advances on a less powerful, female subordinate represent the quintessential form of harassment” (Schultz 1686). This paradigm excludes other types of harassment that men and women suffer from at work, while privileging sexual conduct (Schultz 1686). Hyper-focusing on the sexual aspects of harassment is problematic, as Schultz notes, because harassment consists of actions that are performed to regulate and propagate differences. Schultz argues that the law, as it currently exists, omits gendered harassment while only focusing on harassment of a sexual nature (Schultz 1689). As such, Schultz argues for a more holistic view of harassment, expanding Title VII to protect more Americans legally.
Schultz maintains Title VII law focuses on harassment that is top-down and male-female (Schultz 1699). She is critical of MacKinnon, writing that McKinnon’s book and theories further “conflated sexual exploitation and gender inequality” (Schultz 1705). Schultz goes as far as to claim that MacKinnon considered gender and sexuality as coextensive, which leads to a failure of the courts: a failure of standards that stem from an “overly narrow, sexualized perspective” (Schultz 1705, 1711). Schultz identifies this failure of the courts as disaggregation, dividing sexual harassing conduct and non-sexual harassing conduct as separate claims, which denies comprehensiveness of the complainant’s experience (Schultz 1711). Disaggregation weakens the complainant’s case, and in turn, weakens Title VII as a protectionary legal avenue (Schultz 1720). Disaggregation allows nonsexual treatment, which the complainant may yet consider harassment, to evade legal liability.
Schultz asserts that the “unwelcome” aspect of Title VII creates sexual paternalism in the law. (citation?).Similar to Cornell’s theory of good versus bad girls, this tenet of “unwelcomeness” creates a division between good and bad victims (Schultz 1729). To be seen as a good victim, women have to “purify” themselves—emulating images of virginity and chastity (Schultz 1732). This requirement does two things: it forces victims to conform to sexist, classist, and racist ways, and it discourages victims that do not attain the virginal standard from coming forward.
Vicky Schultz’s solution to this paradigm is another paradigm: a competence-centered paradigm. As aforementioned, harassment is an action that reclaims “favored lines of work and work competence” that is threatened by difference (Schultz 1755). The competence-centered paradigm grants litigation to address harassment that denigrates one’s competence on the job, taking into account sex, gender, and other types of difference. A competence-centered account creates a more holistic understanding of all types of harassment. This paradigm includes sexual harassment, as it is often “designed to undermine a woman’s outward image of competence and sense of self-confidence as a worker” (Schultz 1766). Discrimination, in and out of the workplace, discredits competence. The current sexual desire-dominance paradigm proliferates discrimination, while a competence-centered approach encompasses all types of harassment, broadening Title VII litigation and thereby protecting more Americans.
In Schultz’s view, harassment law has moved away from its purpose, failing as it fails to protect workers from all types of workplace discrimination. In order to implement her solution of the competence-centered account of litigation, the justice system must accomplish several tasks. Courts should move away from the disaggregation of harassment along sexual lines, primarily for hostile work environment claims; instead, Courts should take into account all forms of harassment that create discriminatory work environments (Schultz 1798). As such, Schultz’s second recommendation is for Courts to explicitly consider all harassment challenges (Schultz 1799). Thirdly, Courts should streamline the “elements of a cause of action” (Schultz 1799). The numerous obstacles that complainants must withstand in order for a sexual harassment claim to move forward often serves to prevent those suffering from harassment from taking legal action. Streamlining and simplifying causes of action would encourage more victims to come forward. Further, the Court should deemphasize the focus on the sexual aspect of harassment, and instead inquire into whether the harassment at issue “embodies gender-based expectations for the workers of work involved” (Schultz 1800). Finally, Schultz avers that courts “should examine the record for structural indicia of gender inequality at work” (Schultz 1800). Explicitly discussing gender dynamics and the privilege of masculinity in the American justice system can help break down male-dominated spaces by raising awareness that these spaces exist. Feminists, legal scholars, and activists created Title VII litigation, and Schultz calls for these groups to take the lead once again (Schultz 1805).
“Treating Sexual Harassment with Respect”, Anita Bernstein
Feminist legal scholar Anita Bernstein examines the privileging of gender hierarchy, economic inefficiency, lack of free speech, and misplaced pluralism that exists in current Title VII litigation (Bernstein 447). Bernstein finds fault with the current standards that exist for sexual harassment lawsuits, particularly the term “hostile work environment” (citation?). Without clear and objective standards, Bernstein asserts that both juries and men and women in the workplace remain unguided (Bernstein 449). In the haphazard reality of Title VII protection, men and women, through sexual harassment, endure disrespect; both hostile work environment sexual harassment and quid pro quo sexual harassment are types of disrespect (Bernstein 450). As such, Bernstein argues that sexual harassment complaints should “refer to respect,” or create a “standard of a respectful person” instead of a standard of the reasonable person (Bernstein 450). Focusing on a respect standard, Bernstein claims, would give “shape to a problem whose outlines have been blurred and contested” (Bernstein 450).
The respectful person standard would replace the reasonable person standard. Similar to Cornell, Bernstein aims for people in a workplace to exist in such a way that recognizes another person’s inherent worth (Bernstein 452). Additionally, Bernstein, like Cornell, wants respect to have legal recognition, which would benefit Title VII doctrine. Reason has historically alienated categorical Others—those who have been deemed as lacking reason were denigrated; reason has also been historically understood in conflict with emotion and with sex. Ostensibly having or not having reason has created inequality both in American jurisprudence and daily life (Bernstein 460). Further, the reasonable person standard creates a genderless and emotionless victim (Bernstein 465). This standard explicitly avoids gender, racial, and class hierarchy. The original purpose of Title VII was to eliminate discrimination in the workplace; to this end, avoiding topics of gender, race, and class is directly detrimental to the cause. As such, and most importantly, the reasonable person standard eliminates political and historical postures and group identity (Bernstein 469).
Bernstein builds on philosopher Immanuel Kant’s theories of respect. Kant argued that human beings, due to the outgrowth of reason, “possess intrinsic value and are entitled to respect” (Bernstein 483). Kant’s association of reason with respect supports the respectful person as a legal standard; it does not oppose current legal doctrine. And much like Drucilla Cornell’s theory of the imaginary domain, Bernstein’s theory of respect, building on Stephen Darwall’s theory of “recognition respect,” is based on “the acknowledgement that another person is a free, separate, unique, and independent human being” (Bernstein 484). Bernstein’s respectful person standard falls into the recognition respect category (Bernstein 485).
Bernstein’s respectful person has certain duties he or she must fulfill. The respectful person, regarding sexual harassment specifically, must refrain from the following actions: exploiting others, humiliating others, or engaging in “conduct that rejects or denies the personhood and self-conception of another” (Bernstein 487). These are specific actions useful in assessing if a sexual harassment defendant has violated the respectful person standard. Recognizing respect as a legal standard forces Title VII law to truly attempt to end discrimination in the workplace, democratizing both the private and public sector by amplifying employer liability, weakening defendant’s justifications of disrespect, and fixing the law/fact divide, where Courts question and divide the “facts” of sexual harassment cases and the “law” of sexual harassment cases.
Examination of Legal Cases Before the Supreme Court
A. Corne and DeVane v. Bausch & Lomb
The 1975 case Corne and DeVane v. Bausch & Lombis the first reported lawsuit of a sexual harassment claim under Title VII.The plaintiffs Jane Corne and Geneva DeVane filed charges of employment discrimination with the E.E.O.C. against defendants on October 12, 1973 (Corne and DeVane v. Bausch & Lomb). The plaintiffs alleged that while working in a clerical capacity for defendant Bausch and Lomb, Inc., they were subjected repeatedly to verbal and physical sexual advances by Leon Price, a supervisory employee of the company.Since these actions were directed toward not only the two plaintiffs, but also other employees of the female sex, the actions of the defendant were explicitly illegal, violating Title VII. According to this case’s Brief for Appellants, the women faced “the choice of putting up with being manhandled, or being out of work” (Corne and DeVane v. Bausch & Lomb). The plaintiffs were forced into making that choice: the sexual harassment of Price was so intense that both plaintiffs had to resign from their jobs (Corne and DeVane v. Bausch & Lomb). Furthermore, at this company and while under the supervision of the defendant, women who were “sexually compliant received enhanced employment status” (MacKinnon 61). The defendant filed a motion to dismiss the complaint, reasoning the plaintiffs “failed to exhaust their state remedies” and the “complaint failed to state a claim for relief for violation of Title VII” (Schupp, Windham, and Draughn 240). The plaintiffs sought to hold the employer liable because its administrative personnel “knew or should have known of defendant Price's conduct toward female employees" (Corne and DeVane v. Bausch & Lomb).
Ultimately, District Court Judge Frey determined there was no right to relief under Title VII, since “nothing in the complaint alleges nor can it be construed that the conduct complained of was company directed policy which deprived women of employment opportunities,” there was no Title VII protection (Corne and DeVane v. Bausch & Lomb). Judge Frey even warned, “[a]n outgrowth of holding such activity to be actionable under Title VII would be a potential federal lawsuit every time any employee made amorous or sexually oriented advances toward another. The only sure way an employer could avoid such charges would be to have employees who were asexual” (Corne and DeVane v. Bausch & Lomb). This quotation exemplifies the sexually repressive nature of the American judicial system.
Judge Frey’s ruling at the Arizona District Court that Title Vll is not a suitable legal route of sexual harassment litigation highlights the importance of legal precedence. Because Judge Frey of the Arizona District Court ruled that Title VII is not a suitable legal route of sexual harassment litigation, this case, though lost, highlights the importance of legal precedence. The court held sexual advantages were of a “personal urge,” not an employment or discrimination issue. This case underlines the public’s awareness and understanding of sexual harassment in the work place—personal, but not illegal.
This case exemplifies Vicki Schultz’s theories of sexual harassment as a means of maintaining masculine competence and patriarchy. In this case, Judge Frey ruled that the “[sexual harassment] conduct had no relationship to the nature of the employment” (Corne and DeVane v. Bausch & Lomb). In actuality, the harassment suffered by Corne and DeVane was directlyrelated to the nature of their employment. The harassment “denigrated women’s performance or ability to master the job”, isolated them “from the social networks that confer a sense of belonging”, and engaged in “taunting…. Designed to remind women that they are different and out of place” (Schultz 1683). The harassment the plaintiffs suffered had everything to do with their difference. Even though this case was unsuccessful in setting sexual harassment litigation precedent, the legal focus of solely sexual aspects of harassment set a culturalprecedent of discrimination—mainly, that sexual discrimination should be the focus of litigation, and that the importance of masculine competence and authority should be left out.
B. Willaims v. Saxbe
In a lawsuit brought forward the next year, Williams v. Saxbe created legal precedence of sex discrimination. This discrimination, specifically, was defined as quid pro quo sexual harassment under Title VII. Diane Williams brought suit against the Justice Department on the matter of quid pro quo sexual advances. MacKinnon defines quid pro quo as a category “by the more or less explicit exchange: the woman must comply sexually or forfeit an employee benefit” (MacKinnon 32). MacKinnon describes three possible scenarios of quid pro quo harassment:
In situation one, the injurious nexus is between the imposition of the sexual requirement and the employment retaliation following upon its rejection… Situation two… requires inquire into the impact of compliance. Even less is known about women who comply than those who refuse. But there is little to suggest that women who meet sexual conditions receive job benefits… The “other side” of sexual harassment is commonly thought to be raised by situation three, in which women who comply with sexual conditions are advantaged in employment over men or over women who refuse. Despite the indications that few benefits redound to the woman who accedes, much folklore exists about the woman who “slept her way to the top” or the academic professional woman who “got her degree on her back” (MacKinnon 33-37).
According to MacKinnon, Williams brought suit of quid pro quo harassment which fell under the umbrella of the first scenario—Williams declined the sexual advance of her supervisor and was thus fired. The plaintiff alleged that she was humiliated and terminated for rejecting the sexual advances of her male supervisor, Harvey Brinson, with whom she had a good working relationship until the abnegation (McKinnon 63).
Williams first brought her case to an administrative tribunal, which decided there was no evidence of “causal relationship” between the rejection of “her supervisor’s sexual advances” and her termination (MacKinnon 63).The Court found that “at the agency level,” the government “made no attempt to show an absence of discrimination, but rather, the onus appeared to have been placed on the plaintiff to affirmatively prove sex discrimination” (Williams v. Saxbe). The Court remanded the case to the agency for more hearings. Upon the second hearing, the Hearing Examiner found the agency did not meet the burden of proof, nor did it establish the absence of sexual harassment.
Ultimately, Judge Charles R. Richey held the “retaliatory actions of the male supervisor was taken because the female employee declined his sexual advances,” which constituted sex discrimination under Title VII (Schupp, Windham, and Draughn 242). Judge Richey also ruled on the matter of the constitution of a protected class: “The conduct of the plaintiff’s supervisor created an artificial barrier to employment which was placed before one gender and not the other, despite the fact that both genders were similarly situated” (Williams v. Saxbe). Although the Hearing Examiner recommended that since Williams was wrongfully terminated, she should be reinstated with back pay, or payment for the work she could have done had she not been fired, the Judge did not grant back pay.
In the decision, it is stated the “Court can do no more than issue a declaration that the defendants violated 42 U.S.C. § 2000e-16(a), since the parties have not addressed what specific relief is appropriate and lawful under the circumstances. The Court will therefore issue an order disposing of the motions and requiring the parties to submit memoranda on the question of remedies” (Williams v. Saxbe).This case set a legal precedent for quid pro quo sexual harassment litigation under Title VII. The underlying problem of quid pro quo sexual harassment, however, is thus: at this point in time, if sexual harassment at the workplace was endured, but there was no exchange of goods positive or negative, the victim would have no legal repercussion. Thus, what is illegal is the economic exchange that stems from the harassment, not the harassment itself.
This landmark case set many legal precedents. However, as Anita Bernstein notes, the topic of humiliation is not explicitly addressed in those precedents. In the background section of the Court opinion, Diane Williams asserted that the defendant engaged in “a continuing pattern and practice of harassment and humiliation of her,” which included “unwarranted reprimands, refusal to inform her of matters for the performance of her responsibilities, refusal to consider her proposals and recommendations, and refusal to recognize her as a competent professional in her field” (Saxbe v. Williams). The topic of humiliation cannot be found in the court opinion. The Supreme Court has treated humiliation in sexual harassment lawsuits as an implicit consequence of harassment (Bernstein 489). Humiliating another person, either through sexual or nonsexual means, is harassment. According to Anita Bernstein’s respectful person standard, humiliation violates the first negative duty: the act of humiliation engenders “a feeling of indignity and self-rejection in the human object so treated” (Bernstein 489). Humiliation also denies another person dignity and personhood (Bernstein 490). Under Bernstein’s respectful person standard theory, humiliation is an aspect of harassment and therefore discrimination as stipulated by the Civil Rights Act. If Williams v. Saxbe had created a humiliation-as-discrimination precedent, the trajectory of Title VII litigation would may have been much different, perhaps even protecting more people against harassment instances.
C. Heelan v. Johns-Manville Corp.
Heelan v. Johns-Manville Corp. is the prima facie case, or the establishment case, of sexual harassment as sex discrimination. In 1978, Mary Heelan brought suit claiming that the denial of sexual advancements of her supervisor, Joseph Consigli, resulted in her employment termination (Heelan v. Johns-Manville). It is important to note that as stated in the case’s opinion memorandum, the case is based largely upon the court's view of the credibility of the witnesses, even though much of the testimony was conflicting(Heelan v. Johns-Manville). As a senior secretary to Cosigli, Heelan’s work was consistently excellent; she even rose as an acting facilities manager by a matter of months. Within a year, she was officially promoted to that job. Beginning in April 1972, Consigli made several sexual advances toward Heelan—all of which were denied. As the opinion states, “During the last few months of her employment Consigli's sexual advances became more frequent, occurring as often as once a week. The final demand came on April 23, 1974” (Heelan v. Johns-Manville). Heelan withstood two full years of sexual harassment before being terminated. During that time, Heelan sought advice and assistance from her coworker, which the court found as satisfactory evidence.
In order to litigate and recover a Title VII claim, an area of law of recent vintage, the complainant must allege and establish that submission to the sexual suggestion constituted a term or condition of employment. In Mary Heelan’s case, this clearly was so. This case determined the concept of employer policy. What was determined in this case that is different than in cases prior is the concept of employer policy. As of this 1978 Title VII litigation, it is no longer necessary to prove the sexual harassment directly violated a company-directed policy. Instead, “the employer is responsible for the discriminatory acts of its agents” (Heelan v. Johns-Manville). This case demonstrates the influence of an economic structure over Title Vll, rather than one built around civil equality. Again, as aforementioned, holding the employer responsible instead of an individual increases the amount of monetary compensation—they simply have more to give.
Heelan v. Johns-Manville also established the essential importance of the plaintiff’s (the woman’s) credibility, which the judge called “worthiness of belief”, and the importance of considering whether the harassment was welcome (Heelan v. Johns-Manville). The “worthiness of belief” and “welcomeness” factor in this primae facie case creates problematic court precedent. The “welcomeness” factor acts as a magnifying glass upon the sexuality of the complainant in these cases, which, in turn, exaggerates the sexual character of the complainant. This causal sequence creates a deeply conservative sexual paternalism in Title VII case law (Schultz 1729). Schultz’s concept of this conservative sexual paternalism proliferates Drucilla Cornell’s concept of the good versus bad girl. As found in this case, it is the “identification of the woman as evil that makes the mistress or the conceptual yes-sayer such a discredited figure in her claim of sexual harassment” (Cornell 226). Title VII uses paternalistic sexual policing of the complainants for surface-level equality, creating a subversive precedent that impedes true legal equality.
D. Meritor Savings Bank v. Vinson
Meritor Savings Bank v. Vinson(1986) set an integral precedent as to what the court can recognize as sexual harassment and therefore gender-based discrimination. Mechelle Vinson’s case against Meritor Savings Bank was brought to the Supreme Court of the United States of America in 1986, offering the Court its first opportunity to rule on issues involving corporate sexual harassment litigation under Title VII. Plaintiff Mechelle Vinson accused Sidney Taylor of sexual harassment while working at Meritor Savings Bank. As opposed to previous “quid pro quo” sexual harassment, Meritor Savings Bank v. Vinsonshed light upon another major component of sexual harassment litigation: the hostile environment.
Vinson worked at Meritor Savings bank for four years, as a teller and an assistant branch manager (Gregory 128). Vinson brought legal action against the bank and her supervisor, Sidney Taylor, claiming that “during her four years at the bank, Taylor had continuously subjected her to acts of sexual harassment” (128). Almost as soon as Vinson began working as a teller at the bank, Taylor made sexual advances (128). Vinson alleged the sexual demands made by Taylor persisted despite her denial, and were so frequent and so aggressive that refusal was simply not an option (128). The demands for sex were made “both during and after business hours” (129). These sexual encounters included fondling, exposing himself to her, and even rape (129).
The Supreme Court addressed three major questions in this case:
1) Is sexual harassment a form of sex discrimination barred by Title VII?;
2) Is an employer liable to a female worker for an offensive work environment created by her supervisor’s acts of misconduct?;
3) Does a Title VII violation occur when a sexual relationship between an employee and her supervisor is “voluntary? (129).
As an answer to question one, the Supreme Court quoted an opinion from the court of appeals: “Sexual harassment which creates a hostile or offensive environment of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or women run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets” (129). As established by Justice Rehnquist in his opinion, “For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim's] employment and create an abusive working environment’” (Meritor Savings Bank v. Vinson). Instead of economic loss being the sole actionable claim tied to sexual harassment, discrimination “severe or pervasive” enough to change one’s working conditions was understood as actionable, broadening the Supreme Court’s understanding of the scope of gender-based discrimination.
The Supreme Court also answered the second inquiry—the employer is liable to a female worker for an offensive work environment created by her supervisor’s acts of misconduct (Meritor Savings Bank v. Vinson). Since the company employs the supervisor and delegates the supervisor’s authority, the supervisor, in turn, acts as an agent of the company when exercising said authority (Gregory 130). The Supreme Court acknowledged there might be cases where a supervisor is not acting as an agent of its employer, and therefore, the court must determine in each case whether the “harassing supervisor actually acted as an agent of his employer, thus rendering it liable for his harassment” (Gregory 130).
In addressing the Supreme Court addressed the third question, it opined that it is not about whether the complainant participated in sexual acts, but instead, whether the conduct was unwelcome.Raymond Gregory astutely identifies the three principles decided in this case by the Supreme Court:
First, to be actionable, an abusive or hostile environment claim must affect the terms and conditions of the claimant’s working conditions. Second, the harassment must be “sufficiently severe or persuasive” to have been the cause of that change in working conditions. And, third, the harassing conduct must have been unwelcome to the victim of harassment. (Gregory 130)
After this Supreme Court hearing in 1986, lower courts created two distinct categories of sexual harassment. The first is the abusive treatment of an employee that “would not occur but for the fact that she is a woman,” usually entailing sexual acts in return for employment benefits or under threats of adverse employment action (Gregory 130). This form is primarily quid pro quo harassment. The second form is the hostile work environment harassment, where the victim and employee works in an environment “that is replete with sexual innuendo, intimidation, or other form of harassing conduct that are sufficiently severe or persuasive to alter the terms and conditions of a woman’s employment” (Gregory 131).
Bernstein argues this case created confusing precedent by the Court using ambiguous and enigmatic terms such as “sufficiently severe or hostile” (Meritor Savings Bank v. Vinson). Legal or judicial criteria to determine the sufficiency of the severity or hostility of the harassment do not exist. There are no exact conditions. Her solution to this confusion is the respectful person standard, which included judicial criterions (Bernstein 499). This criterion includes avoidability, which resembles the pervasiveness factor, emphasizing questions of proportionality (Bernstein 499). This criterion “conveys what is desirable about doctrinal attention to pervasiveness—that is, the chance to weigh and to measure the wrongness of workplace action—while at the same time rescuing what is desirable about the idea of reasonableness” (Bernstein 499). As this criterion is similar to reasonableness and pervasiveness, it eases the transition of the standards. Using specific criteria to determine culpability is in accordance with the objectivity of the justice system and counteracts the abstrusity of these terms.
E. The Anita Hill Case and Civil Rights Act of 1991
The Anita Hill case drew attention to sexual harassment that goes unreported. To properly consider several aspects of this particular case, we must first examine its background and the events which led up to it.
Anita Hill was born in Lone Tree, Oklahoma to a family of 16. She attended Oklahoma State University and then went on to Yale Law School. After graduating from Yale Law School, Hill became an attorney-advisor to Clarence Thomas at the United States Department of Education, also called ED (Hill). Thomas was promoted and became the Chairman of the United States Equal Employment Opportunity Commission, also called the EEOC in 1982. Anita Hill followed her direct boss to the E.E.O.C. and served as his special assistant. By the time Anita Hill was serving under Clarence Thomas at the EEOC, however, several Supreme Court cases have been enacted to create legal precedence of sex discrimination through invoking a failure to comply with Title VII standards. In 1983, Hill was admitted to a local D.C. hospital due to stress-related stomach problems. Following those hospitalizations, Anita Hill quit her job in mid-1983, left Washington D.C., and accepted a position as a law professor focusing on civil rights at Oral Roberts University back home in Tulsa, Oklahoma (Totenberg).
On July 1, 1991, Clarence Thomas was nominated by President George H.W. Bush to become a Supreme Court Justice. Although Thomas had just two years on the federal bench, the early hearings had little controversy. Toward the end of the early hearings, on October 6th, 1991, NPR correspondent Nina Totenberg broke the story that a law professor named Anita Hill, a woman who worked with Thomas for over two years, had accused him of sexual harassment via an affidavit filed with the Senate Judiciary Committee, led by then-Senator Joe Biden (Totenberg). Anita Hill was then brought forward to testify against Thomas in a day-long session for the Senate Judiciary Committee on the United States Senate floor. Of the 100 United States Senators at the time, only two were women. The Senate Judiciary Committee was composedconsistedconsisted entirely of white males.
On October 11th, Anita Hill testified in front of the Committee, describing her experience of being sexually harassed by Clarence Thomas when she worked for him. Hill brought up certain, explicit instances of harassment that were uncovered in her FBI affidavit, detailing her job from 1981-1983. However, Republicans questioned Hill’s credibility. Some Republican senators suggested matters of underlying motives, honesty, and even mental stability, in the hearings and in various media (Cochran 174). The presumption of innocence, or of truth, was not given to Hill (Morrison 52). Demands for certain humiliating recollections were made of Hill. For example, during Senator Biden’s interrogation, he brought up the specific incident of the Coke can: where Thomas suggested to his office that someone put their pubic hair on his can of Coke. He asked her about the incident on five separate occasions. In Anita Hill’s book, Speaking Truth To Power, while discussing this line of questioning in Chapter Eight, she emphasizes the pain and trauma instigated by the Courts. andthe violence of this intrusion on a public scale. She recounts the repeated experience of undergoing trauma.
During the hearing on October 11th, 1991, the term “sexual harassment” was uttered to Anita Hill, by Anita Hill, or in front of Anita Hill, 273 times. “Penis” was said six times, “pubic hair” twelve times, and “sex” was said 71 times (Miller). Hill had to relive the two and a half years of trauma she suffered under Thomas in FBI hearings, interviews, and her daily life. Not only did Hill undergo trauma during the two and a half years she was sexually harassed by Thomas, and the trauma afterwards, she had to relive these experiences when giving a statement to the FBI, during interviews before she testified, the hearings themselves, and in her everyday life afterwards. The institutionalized violence was perpetuated against Hill by her boss, Clarence Thomas, the American media, “fourteen white men in grey suits” or the Senate Judiciary Committee, and by many others after (Hill Collins 216).
Two days after Anita Hill’s hearing, on October 13th, 1991, Clarence Thomas responded to her allegations in the same room. Of the events during and leading up to the hearing, Clarence Thomas invoked race in a radical way:
…This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree. (Miller)
After Hill’s testimony, Thomas deflected her allegations, instead comparing alleged sexual assault and the pursuance of its validity to a murderous, racist practice rooted in historical violence and racist shame. Years after the hearings, Anita Hill describes his comments as her having a gender and him a race.
The intersection of race and gender calls for analysis. Patricia Hill Collins claims that both institutionalized rape and lynching, although different expressions, serve the same type of social control that aids the “new racism” (Hill Collins 21). She conceptualizes “new racism” as a pervasive discrimination in the post-Civil Rights era, stemming from different, gendered, and sexualized experiences about race, and promoted and reproduced through mass media (Hill Collins 7). In addition, Hill Collins’ new racism is historical, wielding racist language of the past using new or different forms. The new racism is not ahistorical—it is a juxtaposition of the old and new (Hill Collins 54).
Thomas’ strategy of privileging of a racialized identity over a gendered one was successful. The all-white Senate Judiciary Committee did not want to be seen as racist (Morrison 68). Two days following Thomas’ lynching comments, the Senate Judiciary Committee sent the nomination to a vote of the full Senate—without a recommendation. The main point for the Senate Judiciary Hearings was to recommend whether Clarence Thomas should become a United States Supreme Court Justice. Clarence Thomas was confirmed by the Senate, with the final tally of 52-48. Ultimately, some theorists believe the Committee hearings did not change a single vote of the Senate (Cochran 178). Justice was not achieved for Anita Hill in the appointment of Clarence Thomas.
The Anita Hill case nonetheless brought much needed attention to sexual harassment cases. The Anita Hill “case” could be thought of as an incredibly successful Public Service Announcement. The public’s attention to Anita Hill’s experience cannot all be due to political spectacle. There is something very productive and honest about a situation where a woman takes control of her circumstance, simply by saying, “This happens everywhere, this happened to me, and this is very wrong.” Immediately after these hearings, women—albeit primarily white women—began to achieve newfound political success. 1992, the year after the Supreme Court hearings with Anita Hill, was dubbed “Year of the Woman” because of the successes for women in national politics; for example, 24 new women were elected to the United States House of Representatives and five to the Senate (Malcolm). It is widely believed many women ran for office as a direct consequence of watching the hearings. In addition, and in Anita Hill’s own words, “the silence has been broken” about sexual harassment (Cochran 175). After the hearings, the number of sexual harassment charges filed with the EEOC under Title VII increased from 6,883 in 1991 to 10,532 in 1992 (Gregory 131). Although most cases still go unreported, the public’s awareness of sexual harassment was heightened. The American mass media played a large role in this case, allowing the American people to analyze sexual harassment cases that go unseen (Saguy 73). The Anita Hill case raised public consciousness of sexual harassment with the help of the media.
A year after the Anita Hill case, the United States Government passed the Civil Rights Act of 1991.The Anita Hill Hearings “probably speeded passage of the previously gridlocked Civil Rights Act of 1991 and may have thwarted a veto by President Bush, who had opposed earlier versions” (Cochran 176). “This Act has brought important changes to sexual harassment litigation, including providing the victim with the possibility of compensatory and punitive damages and jury trials” (Pelliciotti 1). The Civil Rights Act of 1991 “authorized compensatory and punitive damages for victims of discrimination prohibited by Title VII, raising the prospect of a larger monetary judgments” (Cochran 126). Under the 1964 Civil Rights Act, only equitable remedies in employment discrimination cases were available, typically declaratory judgments, injunctions, and back pay (Cochran 130). This is problematic for many reasons. First, victims of sexual harassment typically do not want their jobs back. Second, back pay was “crimped by plaintiff’s obligation to mitigate damages by seeking other work” (Cochran 130). Simply put, the 1991 Civil Rights Act added remedies of compensatory and “punitive damages in instances of intentional employment discrimination” (Cochran 130). Also, the Act added a provision that either party could obtain a jury trial on demand (131). Cochran details, “Plaintiffs are usually the ones who seek jury trials, reasoning that juries are more likely to favor employee-plaintiffs’ claims, while judges are more likely to be sympathetic to employer-defendants” (131). The 1991 Civil Rights Act added greater economic benefits of lawsuits and improved the odds of complainants prevailing (131). What is missing is the personal and emotional recompensation through Title VII. Economic benefit is valuable when cases are won, but when they are lost, Title VII is quite damning in this particular structure.
F. Harris v. Forklift Systems Inc.
Harris V. Forklift Systems, Inc. (1993) adds emotional and personal benefit to Title VII. This case demonstrated the complainant does not need to prove concrete psychological harm to establish a Title VII violation in a sexual harassment case.
Teresa Harris worked as a manager for Forklift Systems for two years. The president of the company, Charles Hardy, insulted and badgered her with “unwanted sexual innuendos” (Gregory 137), Hardy also heckled Harris with sexist comments in the presence of others, saying, “You’re a woman, what do you know?” among other such jabs (Gregory 138). Harris confronted Hardy on multiple occasions, asking him to stop. Despite promising to desist, Hardy did not.
The trial court denied Harris’ lawsuit, claiming that although Hardy’s comments were offensive, they did not “seriously affect” Harris’s psychological well-being (Gregory 138). Justice O’Connor writes, “The United States District Court for the Middle District of Tennessee, adopting the report and recommendation of the Magistrate, found this to be "a close case," but held that Hardy's conduct did not create an abusive environment” (Harris v. Forklift Systems).
The Supreme Court of the United States reversed the trial court’s judgment. This was their second time discussing sexual harassment, seven years after their ruling in Vinson(Gregory 138). Justice Sandra Day O’Connor writes, “Title VII comes into play before the harassing conduct leads to a nervous breakdown” (Gregory 133). On the opinion in Vinson, Justice O’Connor concedes:
[the opinion was a] mere utterance of an…epithet which engenders offensive feelings in an employee… [and it] does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview (Harris v. Forklift Systems).
Writing for a unanimous court, O’Connor reasons “[a] discriminatory abusive environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers” (Harris v. Forklift). Justice O’Connor concludes that concrete psychological harm, such as hospitalization due to an emotional breakdown, is “an element Title VII does not require” (Harris v. Forklift). Although psychological harm is certainly a factor in sexual harassment cases, it is not the only factor. The statute is not limited to such conduct (Harris v. Forklift).
Other factors O’Connor highlighted include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance” (Harris v. Forklift). This ruling was the first to explicitly work outside of economic systems: in the category of hostile environment sexual harassment, behavior needs not tangible economic consequences (Saguy 34).
Another important aspect of Harris v. Forklift Systems, as Cornell aptly identifies, is the creation of precedent using two different legal standards, an objective and subjective one. While attempting to create a middle path of psychological damages suffered, the Supreme Court muddled the legal definitions and understanding of reasonable person standards. Such damages included those that exist in open-ended terms like “hostile” and “abusive” (Cornell 176). As many legal feminist theorists address, the reasonableness standard used by the court is inherently gendered, appealing to male reason (Cornell 176). Therefore, this male standard in sexual harassment litigation identifies the type of harassment males would find reasonably abusive or reasonably hostile. Cornell highlights, “there is extensive evidence that women and men in our culture do indeed view sexual advances differently” (Cornell 177). Even when Title VII litigation trajectory opens court precedent to middle-grounds, using the reasonableness standard still creates asymmetry in our culture, which is primarily based not due to only gender-difference, but also the allowance (and dis-allowance) of sexual behavior (Cornell 177).
What a reasonable woman might describe as abusive sexual harassment might not match with what a reasonable man might identify as sexual harassment behavior. Their perspectives can diverge. Justice O’Connor, in the court opinion, identifies that there cannot be a test that is “mathematically precise” for what constitutes or creates sexual harassment and an abusive environment (Cornell 198). In Justice Scalia’s dissent, he identifies a clear “lack of certitude” in sexual harassment cases (Harris v. Forklift Systems). O’Connor created a subjective reasonable person standard through the creation of this middle-path, despite its existence in a system operating in objectivity. The lack of clear standards “shows that the problem of how to address the question of the relationship between equality and perspective has not been resolved” (Cornell 200).
Cornell expounds this problem through her theory of self-respect. Instead of focusing on standards that consider the validity of womens’ accounts of their experiences, the court should concentrate on behavior that underminedundermines equality, by considering the allowance of self-respect (Cornell 200). The focus would “shift from the woman to the workplace,” thus establishing an “objective and reasonable” standard (Cornell 201). Such aspect of litigation would, at the same time, be singular and broad. There is no uniformity in a reasonable man or reasonable woman standard—as humans, our perspectives differ (Cornell 202). Using a standard based on self-respect would not only allow the objectivity needed. It also opens space for our imaginary domain by identifying the needs of the individual, and maintains objective consideration of the accounts of what happened.
Vicky Schultz avers the Supreme Court missed a clear opportunity to expand the legal understanding of hostile work environment harassment, exemplifying her theory of disaggregation (Schultz 1683). The Court’s application of the standards established in Meritor Savings Bank v. Vinson was too focused on the sexual nature of harassment, thus ignoring the nonsexual conduct. This nonsexual harassment Harris suffered included “denying Harris a car, car allowance, office, and annual review” (Schultz 1711). Because suchharassment was not sexual, such instances were not factored into Harris’ hostile work environment claim. Despite the extremity of the harassment Harris experienced, the Court did not warrant such claims—taking only certain aspects of harassment into consideration. Title VII was intended to dismantle discrimination and inequality; the clear failure of harassment litigation through this avenue is evidenced in this case.
G. Oncale v. Sundowner Offshore Services
Oncale v. Sundowner Offshore Services(1998) established that “same-sex” sex discrimination, including sexual harassment, is actionable under Title VII (Levy and Paludi 27). This case mirrored the progress (and the beginnings of the acceptance) of the LGBTQ movement in the late 1990s.
Joseph Oncale worked in an eight-man crew at Sundowner Offshore Services on a Chevron U.S.A. Inc. oil platform in the Gulf of Mexico. As Justice Scalia writes for a unanimous Supreme Court decision, “[o]n several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by [his coworkers] in the presence of the rest of the crew. [Other coworkers] also physically assaulted Oncale in a sexual manner, and [one] threatened him with rape” (Oncale V. Sundowner Offshore Services).
Sequentially, Oncale filed a complaint against Sundowner in the United States District Court for the Eastern District of Louisiana, alleging he was discriminated against in his employment because of his sex (Oncale V. Sundowner Offshore Services). The District Court held that Oncale hadno cause of action under Title VII for harassment by male co-workers because he, himself, is a male. Supreme Court Justice Antonin Scalia reasoned:
We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. (Oncale V. Sundowner Offshore Services)
The Court also issued a caveat: “Its recognition of employer liability for same-sex harassment was not intended to transform Title VII into a “general civility code for the American workplace” (Oncale V. Sundowner Offshore Services).
Some scholars have suggested that Title VII does not address genuine but innocuous differences in the ways men and women routinely interact with members of the opposite sex (Gregory 244). Gregory asks, “Following the Supreme Court’sOncale decision, several other issues arose in same-sex sexual harassment cases. May sexual commentary provide the basis for a same-sex harassment claim? Can obscene expressions or anatomical references, uttered by men while conversing with one another, rise to a level of same-sex harassment?” (Gregory 245). As the lines of sexuality and gender began to blur, the idea of individuality and respect is severely neglected. To reiterate Scalia’s point, Title VII was not meant to be a general civility code for the American workplace (Oncale V. Sundowner Offshore Services); yet despite its beginnings, Title VII is turning into just that. To that end, the idea of workplace civility cannot be reduced to only issues of sexuality. Title VII must be expanded to include all types of civility.
Drucilla Cornell’s theories of equality through self-respect, while perhaps exacerbating Justice Scalia’s fear of Title VII becoming a civility code, protects gays and lesbians from sexual harassment.Every individual is a sexuate being, and according to Cornell, needs to have his or herindividuality protected through law. Violations of self-respect are not accorded by the gender identity or sexual orientation of the perpetrator, thus expanding Title VII to truly protect not just women but many different types of Americans.
Vicky Schultz uses Oncale v. Sundowner Offshore Servicescase to prove the potentiality of the Supreme Court to accept her new approach proposed in her article. This case shows the Court’s willingness to consider broader classes of harassment. In thecase, the Court held that “nothing in Title VII necessarily bars a claim of discrimination ‘because of … sex’ merely because the plaintiff and the defendant are of the same sex” (Oncale v. Sundowner Offshore Services). As Schultz notes, sexual harassment is rooted in a broader pattern of discrimination based on difference. Oncale v. Sundowner Offshore Services embodiessuchconcept. Thus, Oncale v. Sundowner Offshore Services set legal precedent for broader protections for “women and the least powerful men” to work as equals (Schultz 1805).
H. Faragher v. City of Boca Raton
Faragher V. City Of Boca Raton (1998) delineatesthe circumstances that employers will be held liable for acts of sexual harassment carried out by their supervisory personnel. Beth Faragher worked as part time lifeguard for five years as at the Boca Raton Parks and Recreation Department. She brought action against Terry, Gordon, Silverman, and the City of Boca Raton, claiming her two immediate supervisors created “a sexually hostile atmosphere…by subjecting her and other female lifeguards to “uninvited and offensive touching” and “lewd remarks”” (Gregory 142).
Like the Harris case, Faragher also alleged her supervisors frequently-made sexist comments “about women generally as well as about Faragher specifically” (Gregory 142). The Supreme Court notes, “Faragher did not complain to higher management about Terry or Silverman”. Although she spoke of their behavior to Gordon, she did not regard these discussions as formal complaints to a supervisor—rather conversations with a person she held in high esteem” (Faragher V. City of Boca Raton). Faragher sought a judgement against the city, “asserting that Terry and Silverman were agents of the City, and that their conduct amounted to discrimination in the “terms, conditions, and privileges” of her employment” (Faragher V. City of Boca Raton).
Regarding their job positions, the United States District Court for the Southern District of Florida investigated Terry and Silverman’s duties and supervisors in the Marine Safety Division of the City of Boca Raton. Terry had the authority to hire “new lifeguards…to supervise all aspects of the lifeguards’ work assignments, to engage in counseling, to deliver oral reprimands, and to make a record of any such discipline” (Faragher V. City of Boca Raton). Silverman and Gordon “were responsible for making the lifeguards’ daily assignments, and for supervising their work and fitness training” (Faragher V. City of Boca Raton). It is important to note the City of Boca Raton had adopted a sexual harassment policy: in February 1986, the City Manager addressed the new sexual harassment policy in a memorandum (Faragher V. City of Boca Raton). Further, in May 1990, the “the City revised the policy and reissued a statement of it” (Faragher V. City of Boca Raton). However, equally as important to note, the Supreme Court found the City “failed to disseminate its policy among employees of the Marine Safety Section, with the result that Terry, Silverman, Gordon, and many lifeguards were unaware of it” (Faragher V. City of Boca Raton).
The Supreme Court ultimately decided that “[a]n employer is not ‘automatically’ liable for harassment by a supervisor who creates the requisite degree of discrimination” (Faragher V. City of Boca Raton). The idea of “requisite degree of discrimination” is problematic—having a degree of discrimination that is legally acceptable is distressing in the very least. However, the court offered two basic alternatives—“one being to require proof of some affirmative invocation of that authority by the harassing supervisor, the other to recognize an affirmative defense to liability in some circumstances, even when a supervisor has created the actionable environment” (Faragher v. City of Boca Raton). Here, the Supreme Court ruling protects companies, saving them potential capital.
TheFaragher v. City of Boca Ratoncase, as Vicky Schultz notes, creates another hindrance for harassment complainants. In order to prove hostility, the complainant must provide and provetwo elements: 1) the harassment is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” (Meritor Savings Bank v. Vinson), and 2) “the employer is responsible legally for the challenged misconduct” (Schultz 1716). In addition, fixating on solely sexual aspects of harassment allows not only the individual defendant, but also their companies legally liable. Employers should be held accountable for all forms of discrimination at their offices, not only sexual. The legal precedent set by Faragher v. City of Boca Raton was that the “requisite degree of discrimination” allows companies to evade legal responsibility of company-wide discrimination, particularly when the sexual aspects of the harassment do not grant the “requisite degree,” but when non-sexual and sexual harassment does fulfill the requirement.
I. Pollard v. E.I. DuPont De Nemours & Co.
Pollard V. E.I. Du Pont De Nemours & Co.(2001) establishes front-pay in sexual harassment suits. Regarding front-pay, a Circuit Court judge said, “"Front pay is ... simply compensation for the post-judgment effects of past discrimination… It is awarded to effectuate fully the ‘make whole' purposes of Title VII” (Pollard v. E. I. DuPont de Nemours & Co.). In Pollard v. E.I. Du Pont DeNemours & Co., Sharon Pollard successfully sued her former employer, as she claimed she was subjected to a hostile work environment based on her sex under Title VII. The District Court found that Pollard was “subjected to co-worker sexual harassment of which her supervisors were aware, and that the harassment resulted in a medical leave of absence for psychological assistance and her eventual dismissal for refusing to return to the same hostile work environment” (Pollard v. E. I. DuPont de Nemours & Co.). The District Court awarded her $300,000 in compensatory damages, which is “the maximum permitted under 42 U. S. C. §1981a(b)(3)” (Pollard v. E. I. DuPont de Nemours & Co.).
However, the District Court also found the compensation insufficient, as front-pay, or “compensation for lost future income that would have been earned at the plaintiff’s original job but for the discrimination,” was not yet a legal remedy (Cochran 130). The issue presented for review by Supreme Court is “whether front pay constitutes an element of "compensatory damages" under 42 U. S. C. §1981a and thus is subject to the statutory damages cap imposed by that section” (Pollard v. E. I. DuPont de Nemours & Co.). To reiterate, the Civil Rights Act of 1991 expanded equitable remedies available to complainants “by permitting, for the first time, the recovery of compensatory and punitive damages” (Pollard v. E. I. DuPont de Nemours & Co.).
Women are systemically considered “less than” men in all walks of life; to wit, employment discrimination complainants win 45 percent fewer cases than others. Therefore, there is very little financial incentive to address sexual harassment, and great amount to be gained by sweeping it under the rug. When Title VII is actually exercised, there is only a small possibility of economic gain.
Money is transferrable—it can be lost, but it can also be repaid. Respect, on the other hand, including self-respect, is non-transferrable and cannot be re-earned once lost. Anita Bernstein, similarly to Cornell, argues these attempts of economic compensation is a quasi-apology for harassment suffered (Bernstein 488). Cornell writes, “Many of us have learned to survive in degrading circumstances. What we will never know is how much psychic energy has been drained away from our creativity in the course of our efforts to find self-worth in spite of our degradation” (Cornell 211). Due to the repressive environment in which women are both raised and work, the ignoring of self-respect by the legal system is a failure of freedom yielded to us all via the U.S. Constitution. The energy spent combating constant micro- and macro-aggressions of degradation in and out of the workplace causes an intellectual deficit of attaining a true eudemonia. For the Imaginary Domain to exist in court in a very real way would be to assuage harassment victims’ fears of blame and injustice. Hard-won battles have been brutally fought in the courts for an economic compensation of damages. However, this economic compensation cannot atone for lost self-respect.In fact, Cornell states there is nocompensation for the loss of self-respect; focusing on economic compensation minimizes the trauma of sexual harassment.
Title VII was initially created to prohibit employers from discriminating against employees on the basis of sex, race, color, national origin, and religion—not to compensate victims who have undergone harassment. Though compensation became the norm after Mackinnon’s groundbreaking work, such was not the original intent of the Act. Following touchstone developments of sexual harassment litigation under Title VII, signpost cases forged a path to prosecuting sexual harassment, seeking compensation for damages, establishing recognition of sexist environments, and even bringing to light sexual harassment that goes unreported. Economic compensation from the guilty, though helpful after the fact, does not protect victims from actually experiencing harassment.
Thus, after analyzing the trajectory of sexual harassment litigation in the American justice system, I maintain that Title VII’s failures must be addressed and redressed. It is crucial the law itself must be redefined or harassment litigation should be redesignated to another legal avenue. The trajectory of this litigation must change: the formal process to register and litigate a complaint of sexual harassment must be streamlined, as Schultz argues; the definitions and guidelines of sexual harassment must be refined, adding more specificity, potentially through using Bernstein’s respectful person standard; and finally, the law needs to allow for sexual agency, as Cornell contends.
Firstly, according to Vicky Schultz, streamlining the formal legal process of filing a sexual harassment lawsuit will plausibly increase the number of reports or complaints of sexual harassment in the workplace.As evidenced by Figure A, the current process for a cause of action is complex and multifaceted. If the potential outcomes of sexual harassment complaints become more favorable to the complainant, others will be encouraged to come forward with their own complaints.
Secondly, the current definitions of sexual harassment would benefit from greater specificity. To reiterate, the Equal Employment Opportunity Commission currently identifies that harassment becomes unlawful when “1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive”(Equal Employment Opportunity Commission). Defining harassment needs to be both explicit and simple, not vague and complicated. The terms we use to refer to and describe hostile work environments are not clear or objective, misguiding both complainants, juries, and men and women in the workplace (Bernstein 449). Since both hostile work environment sexual harassment and quid pro quo sexual harassment are forms of disrespect, sexual harassment complaints should “refer to respect,” or create a “standard of a respectful person,” instead of a standard of the reasonable person (Bernstein 450). As Cornell asserts, degradation is not reasonable by definition; yet “degraded we have been” (Cornell 236). And, truly, is it not eminently reasonablethat a person in power should harness any means available to him, no matter how distasteful, demeaning, or disrespectful to others, to maintain his own power? Using a standard of a respectful person would place the onus on behalf of the guilty party (both the individual defendant and their company) by discarding the idea of a “reasonable person”. Under this standard, a respectful employer “has a nondelegable duty to maintain an attitude of responsiveness and attention”andtoproactively prevent sexual harassment in their workplace (Bernstein 495). Also, this new standard provides clarity for complainants by not having them question if their experience of harassment is reasonable, and but instead encourages them to focus on the clear loss of respect. Finally, the respectful personstandard clarifies the adjudication of these lawsuits. Instead of questioning whether complainants were reasonable in their considerations of their harassment suffered, a notion that is incredibly subjective, judges can consider whether the defendant behaved as a respectful person, asking if the defendant regarded “the complainant as a person, self-propelled and unique, with a range of potential reactions to sex-based conduct in the workplace” (Bernstein 501). Using the respectful person standard expands Title VII, protecting more Americans in the workplace.
The final standard in Title VII litigation that must be redressed is the idea of welcomeness, also known as the common law doctrine, Volenti non fit injuria ("to a willing person, injury is not done"). Quid pro quo harassment doctrine is partially grounded in whether the harassment was welcome by the victim. Welcomeness polices the complainant’s sexual agency, and forces female complainants into stereotypical roles by creating tropes of licentious “bad girls” and chaste “good girls” (Cornell 191).Cornel advocates replacing the idea of “unwelcome” or “unwarranted” sexual harassment with “unilaterally imposed” (Cornell 190). Imposing oneself unilaterally on another is to treat the other as less than an equal person (Cornell 195). Changing the standard to consider whether the harassment was unilaterally imposed still directs Courts to investigate whether the sexual relationship was desired by both parties or was imposed upon the other party and not mutual (Cornell 195). This standard accounts for situations where complainants were forced to consent to their own harassment, but only under duress, still creating a hostile work environment harassment or a quid pro quo harassment. Unilateral imposition need not account for the complainant’s sexuality, sexual agency, and sexual relationships and activities, consequently ridding Court precedent of sexual repression.
The nature of changes made to Title VII ought to encompass the expansion of legal protections for a greater number of working Americans, and that when invoked, it does not jeopardize the fundamental goal of the Civil Rights Act: to end discrimination in the American workplace. At the very least, these measures would provoke increased dialogue in both activist and legal communities about gender equality and the role of the American justice system. In other words, these courts might provide an appropriate space for discussion that is more sensitive to the realities of the workforce. Of course, the working American woman should not settle for “the very least”. We deserve protection to the fullest possible extent that Title VII can protect us. This means we cannot accept the Act as it stands in its comparatively weak state, but must demand, and work toward, the changes proposed in this text. A less subjective, more clearly defined Title VII is a Title VII that could truly end discrimination in the workplace—and not only for women, but, as was the Act’s original purpose, for every working American.
Trudy Wurm recently returned home to Saint Louis to attend Washington University School of Law in Saint Louis, Missouri. Trudy attended the Gallatin School at New York University for her undergraduate degree, studying political and feminist theory. Her professional and personal interest lies in giving strength to marginalized voices and communities primarily through electoral politics and law. While at NYU, Trudy worked at Hillary For America, Secretary Hillary Clinton’s presidential campaign, and was the editor-in-chief of New York University’s Journal of Politics and International Affairs, where her love of grammar and the Oxford comma truly came alive. In her spare time, Trudy enjoys learning about, making, and drinking coffeeand voraciously listening to both hip-hop and NPR.
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The Titles under the act, as amended, include: Title I, Voting Rights; Title II, Injunctive Relief Against Discrimination in Places of Public Accommodation; Title III, Desegregation of Public Facilities; Title IV, Desegregation of Public Education; Title V, Commission on Civil Rights; Title VI, Nondiscrimination in Federally Assisted Programs; Title VII, Equal Employment Opportunity; Title VIII, Registration and Voting Statistics; Title IX, Intervention and Procedure after Removal in Civil Rights Cases; Title X, Establishment Of Community Relations Service; and Title XI, Miscellaneous. (Civil Rights Act of 1964)
Title VII states:
“a) It shall be an unlawful employment practice for an employer—
1) 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…sex….; or:
2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s…sex” (Title VII”
Per se, a Latin phrase for “through itself” is used in a legal sense to mean that without referring to anything else (like the defendant’s intent for an action), something must be accepted because it is inherent.
These jobs include teachers, secretaries, typists, file clerks, receptionists, waitresses, nurses, bank tellers, telephone operators, factory workers, sales clerks, beauticians, and housekeepers (MacKinnon 10).
The questions surrounding the advance revolve around the line between a sexual advance and a friendly gesture. The questions surrounding the response are how a woman, given the attendant risks, should explicitly reject the advances. And the questions around the employment consequence involve stipulating whether job benefits should be shown to categorize the actions as discrimination (MacKinnon 31).
At the time of writing, quid pro quo lawsuits were the only successful suits for sexual harassment.
Consent or sexual harassment being welcome is problematized in Meritor Savings Bank v. Vinson.
Rawls explains the importance of self-respect: “When we feel that our plans are of little value, we cannot pursue them with pleasure or take delight in their execution. Nor plagued by failure and self-doubt can we continue in our endeavors. It is clear then why self-respect is a primary good. Without it, nothing may seem worth doing, or if some things have value for us, we lack the will to strive for them. All desire and activity becomes empty and vain, and we sink into apathy and cynicism” (Rawls 440).
This theory of “unwelcomeness” stems from Justice Rehnquist’s opinion in Meritor Savings Bank v. Vinson(Meritor Savings Bank v. Vinson).
This is a similar to American citizenship rights and duties, such as serving on a jury, supporting and abiding by the Constitution, participating in the democratic process, and so on.
In Catherine McKinnon’s book, Sexual Harassment of Working Women, the history of Title VII and its first case of sexual harassment is made clear: Although Barnes v. Train (Costle)“was decided in 1974 by the federal district court… it was not first reported until several years later. The original adjudication was thus not widely known until after its reversal on appeal in 1977” (MacKinnon 60).
The Imaginary Domain was published in 1995, three years before the Supreme Court decided this case. Cornell criticizes the prior court precedent: “Courts are violating the degradation prohibition by implicitly devaluing gays and lesbians as less than persons because of their “sex”” (Cornell 214).
The Equal Employment Opportunity Commission also identifies that “offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance” (Equal Employment Opportunity Commission).
Cornell furthers this theory, stating that investigations into complainant’s sexuality “implicitly incorporates fantasies about women which impose someone else’s imaginary upon women’s self-worth… [asking] whether or not a woman who says she did not welcome sex implicitly wanted it because she drank beer or wore short skirts imposes a view of her that deems her unworthy of personhood, and, thus, of making the claim that she could be sexually harassed” (Cornell 193).