Judicial Innovation and Sexual Harassment Doctrine in the U.S. Courts of Appeals

• Author: Laura P. Moyer,Holley Tankersley
• DOI: 10.1177/1065912911411097
• Date: 01 December 2012
• Published date: 01 December 2012
• Subject Matter: Articles

Political Research Quarterly

65(4) 784 –798

© 2012 University of Utah

Reprints and permission:

sagepub.com/journalsPermissions.nav

DOI: 10.1177/1065912911411097

http://prq.sagepub.com

From the passage of the Civil Rights Act of 1964 prohibit-

ing “discrimination on the basis of sex” to the U.S.

Supreme Court’s decision in Meritor Savings Bank v. Vin-

son (477 U.S. 57(1986)), lower courts were left to create

and develop both the legal meaning of sex discrimination

and the standards by which sex discrimination cases

would be adjudicated. Scholars such as Catharine MacK-

innon have observed that because of the lack of legislative

guidance on Title VII, it was the courts that truly shaped

the legal standards governing sex discrimination in the

workplace by responding to the reality of women’s experi-

ences in discrimination lawsuits. This is not particularly

surprising: in the absence of clear guidance from the U.S.

Supreme Court, the circuits that make up the U.S. Courts

of Appeals are regularly left to the task of statutory inter-

pretation and setting legal policy for their respective juris-

dictions. But why did some circuits lead the way while

others were slower to develop doctrine? Was innovation

driven by internal factors or external ones?

Drawing from these questions, this article looks at the

evolving body of common law on sex discrimination that

developed in the U.S. Courts of Appeals prior to the U.S.

Supreme Court’s adoption of a controlling legal frame-

work for evaluation of such claims under Title VII. While

the disputes that the circuits hear on appeal are decidedly

not representative of all claims, these cases are important

because they establish precedent for the whole circuit and

set forth a standard for lower courts to use in future

claims.

Specifically, we investigate the development of work-

place sex discrimination doctrine during two periods of

uncertainty in the law. The first period of doctrinal evolu-

tion occurred in the federal appellate courts between

1964 and the Supreme Court’s 1986 decision in Meritor

Savings Bank v. Vinson, which formally expanded the

definition of sexual harassment to include “hostile work

environment” but left other legal questions unanswered.

The second period of interest includes cases decided after

Meritor but before the Supreme Court’s 1993 ruling in

Harris v. Forklift Systems (510 U.S. 17(1993)); this deci-

sion held that an abusive work environment does not have

to cause tangible injury in order for a victim to bring a

claim.

We proceed in the following fashion. First, we discuss

the concept of policy diffusion and how it operates in the

judicial context, and specifically in the U.S. Courts of

Appeals. We then explain how the role of the judiciary

differed in the area of sexual harassment compared to

other gender equality issues advocated by women’s rights

groups during the same time period. With this discussion

as a backdrop, we then set forth to test several hypotheses

1Louisiana State University, Baton Rouge, LA, USA

2Coastal Carolina University, Conway, SC, USA

Corresponding Author:

Laura P. Moyer, Assistant Professor, Louisiana State University, Baton

Rouge, LA, 70803, USA

Email: lmoyer@lsu.edu

Judicial Innovation and Sexual

Harassment Doctrine in the

U.S. Courts of Appeals

Laura P. Moyer1 and Holley Tankersley2

Abstract

The determination that sexual harassment constituted “discrimination based on sex” under Title VII was first made

by the lower federal courts, not Congress. Drawing from the literature on policy diffusion, this ar ticle examines the

adoption of hostile work environment standards across the U.S. Courts of Appeals in the absence of controlling

Supreme Court precedent. The results bolster recent findings about the influence of female judges on their male

colleagues and suggest that in addition to siding with female plaintiffs, female judges also helped to shape legal rules that

promoted gender equality in the workplace.

Keywords

sexual harassment, precedent, U.S. Courts of Appeals, policy diffusion, policy innovation, gender and judging, sex dis-

crimination, courts, judicial policy

411097PRQXXX10.1177/1065912911411097Moy

er and TankersleyPolitical Research Quarterly