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social sciences

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Sexual Harassment  
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Legal responsibility for sexual harassment became a major issue for sexual minorities (lesbians, gay men, bisexuals, persons) in the United States during the last quarter of the twentieth century, following the development of legal doctrines originally intended to protect women from workplace harassment, using Title VII of the federal Civil Rights Act of 1964 and similar state laws.

The Civil Rights Act of 1964

The U. S. House of Representatives committee that considered the proposed Civil Rights Act heard testimony and collected data about sex discrimination, but decided that the time was not right to include "sex" in the bill. The bill presented to the House forbade discrimination only on grounds of race, color, religion, and national origin.

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During floor debate, a conservative Democrat, Representative Howard Smith of Virginia, hoping to sabotage the bill, proposed an amendment adding "sex." The amendment was narrowly adopted, the bill passed the House and was referred to the Senate, where the leadership decided to bypass the normal committee process and allow only limited debate on the floor.

As a result, the inclusion of "sex" in the bill that was enacted was not accompanied by the usual "legislative history" including committee reports and extensive testimony about what Congress intended. The term "sex" was not even defined in the bill. This left an open slate for courts and commentators to consider the implications of outlawing sex discrimination.

The Implications of Outlawing Sex Discrimination

One who thought particularly creatively about this was Catherine A. MacKinnon, a law professor who, in a series of journal articles ultimately published as a book entitled Sexual Harassment of Working Women: A Case of Sex Discrimination (1979), argued that women who were subjected to demands for sexual favors or to oppressive working conditions because of male resentment of their presence in the workplace in formerly all-male jobs were suffering sex discrimination, because such harassment affected "terms and conditions of employment."

During the 1970s a few courts came to embrace Professor MacKinnon's view, at first in cases where male supervisors made sexual demands on female subordinates, but soon spreading to cases where an oppressive workplace atmosphere made conditions intolerable for female workers.

The Meritor Decision

In 1986, the United States Supreme Court issued its first decision on sexual harassment under Title VII, Meritor Savings Bank, FSB, v. Vinson, 477 U.S. 57. Writing for the unanimous Court, then-Associate Justice William H. Rehnquist evoked prior decisions holding that Title VII "evinces a congressional intent to 'strike at the entire spectrum of disparate treatment of men and women' in employment."

The Supreme Court's Meritor decision endorsed two theories of sexual harassment that had been suggested by Professor MacKinnon and embraced by some lower federal courts. The "quid pro quo" theory found that unwanted demands for sexual favors under circumstances where the victim reasonably perceived that her refusal would subject her to tangible negative consequences (loss of job, undesirable assignments, denial of promotion, or the like) violated Title VII. The "hostile environment" theory held unlawful harassing conduct "of a sexual nature" that was so frequent and pervasive as adversely to affect the victim's terms and conditions of employment, even if the victim suffered no tangible injury such as job loss or undesirable assignments.

Subsequent decisions by the Supreme Court, such as Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), made clear that only misconduct that was frequent, pervasive, and very severe in nature would violate Title VII in a hostile environment case. As Justice Antonin Scalia commented for the unanimous court in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), Title VII was not intended by Congress to mandate a workplace "civility code," so harassing conduct that merely irritates or discomforts the victim would not violate the statute.

In subsequent decisions, the Supreme Court also worked out rules to govern the questions of when a corporate employer can be held liable for sexual harassment perpetrated by managers, supervisors, and co-workers, and how employers might insulate themselves from liability under Title VII by adopting formal policies against sexual harassment, providing grievance mechanisms to deal with complaints, and remedying justified complaints promptly. These decisions made clear that the purpose of Title VII is mainly remedial, not punitive, although an employer who knowingly allowed severe unlawful sexual harassment to continue might be subjected to punitive damages.

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