Sexual Harassment and Disparate Impact: Should Non-targeted Workplace Sexual Conduct Be Actionable Under Title Vii?

• Jurisdiction: United States,Federal
• Citation: Vol. 81
• Publication year: 2021

81 Nebraska L. Rev. 1152. Sexual Harassment and Disparate Impact: Should Non-Targeted Workplace Sexual Conduct Be Actionable Under Title VII?

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Kelly Cahill Timmons(fn*)

Sexual Harassment and Disparate Impact: Should Non-Targeted Workplace Sexual Conduct Be Actionable Under Title VII?

TABLE OF CONTENTS

I. Introduction ......................................... 1153
II. The Evolving Understanding of Sexual
Harassment as a Form of Sex Discrimination ........... 1155
A. Recognition of Quid Pro Quo Sexual
Harassment as Actionable Under Title
VII: The Relevance of Desire ...................... 1156
B. Recognition of Hostile Work Environment
Sexual Harassment as a Form of Sex
Discrimination: Sexual Desire, Sexual Conduct,
and Conduct Based upon Sex ........................ 1159
C. A Renewed Focus on the Requirement of
Sex Discrimination: Oncale v. Sundowner
Offshore Services, Inc. .......................... 1165
III. Sexual Harassment as a Form of Disparate Treatment . . 1170
A. Introduction to Disparate Treatment
and Disparate Impact .............................. 1170
B. Oncale: Discrimination as Only Disparate
Treatment ......................................... 1172
C. Proving Disparate Treatment in a
Sexual Harassment Case ............................ 1174
D. Pornography and Discussions About Sex
as Disparate Treatment ............................ 1179
IV. Analysis of Non-Targeted Workplace Sexual
Conduct Under a Disparate Impact Approach ............ 1187
A. The Law of Disparate Impact Discrimination ........ 1187
B. A Facially Neutral Employment Practice . . . .. . . 1195
C.. . . that Causes a Disparate Impact
on the Basis of Sex ................................ 1207
1. Likelihood that Workplaces Will
Include Facially Neutral Conduct that
Has a Disparate Impact on Women ................. 1207
2. The Meaning of "Impact" in a
Sexual Harassment Case .......................... 1217
3. Proving Disparate Impact ........................ 1221
a. Proving Disparate Impact in the
Typical Case ................................. 1221
b. Proving Disparate Impact in a
Sexual Harassment Case ....................... 1225
4. Another Approach to Proving Disparate
Impact in a Sexual Harassment Case:
Robinson v. Jacksonville Shipyards, Inc.
and Jenson v. Eveleth Taconite Co................ 1231
D and Is Not Job-Related or Consistent
with Business Necessity ......................... 1236
V. Potential Problems with Finding Non-Targeted
Workplace Sexual Conduct Actionable .................. 1241
A. Conflict with the First Amendment ................. 1241
B. Overprotecting and Stigmatizing Women ............. 1246
C. Reemphasizing the "Sexual" in Sexual
Harassment ........................................ 1253
D. A Practical Problem: No Jury Trials
for Disparate Impact Claims ....................... 1255
VI. Conclusion .......................................... 1256

I. INTRODUCTION

A female attorney claimed that the male attorneys with whom she worked regularly talked about their sex lives, told jokes about sex, joked about masturbation in slang terms, and used the word "fuck."1 These conversations were not directed to the female attorney, but she heard them and found them "acutely offensive to her as a woman."(fn2) A female manager of a city's computer department claimed that she regularly observed her supervisor viewing pictures of completely naked women on Internet websites.(fn3) A female firefighter-the first woman assigned to her engine company-saw stacks of pornographic magazines in the company's common living areas, witnessed male

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firefighters watching pornographic movies in the company's common sitting area, and heard frequent conversation about whether the male firefighters had gotten "banged" over the weekend.(fn4)

All three women are complaining about non-targeted sexual conduct in the workplace. Does such conduct violate Title VII's prohibition of sex discrimination in employment? Because the conduct did not result in a tangible employment action, it will be actionable under Title VII only if the plaintiff can prove that it constituted hostile work environment sexual harassment.(fn5) The plaintiff must prove that the conduct was sufficiently severe or pervasive to alter the conditions of employment and to create an abusive work environment.(fn6) The plaintiff also must have some basis for establishing employer liability for the conduct.(fn7) In Oncale v. Sundowner Offshore Services, Inc.,(fn8) the Supreme Court emphasized an additional requirement in every sexual harassment case: the plaintiff must prove that the conduct constituted sex discrimination. This requirement may be difficult to satisfy when the harassing conduct is not targeted on the basis of sex.

The majority of sexual harassment cases involve conduct that is discriminatory under a disparate treatment theory. In other words, most sexual harassment claims involve harassing conduct that is caused by the sex of the plaintiff, where the harasser would not treat someone of a different sex than the plaintiff in the manner in which he or she is treating the plaintiff. The classic sexual harassment fact pat-tern-in which a male supervisor tells a female subordinate "sleep with me or I'll fire you"-is an example of disparate treatment; it seems unlikely that the supervisor would have made such a demand of a male subordinate.

Women who complain about non-targeted sexual conduct in the workplace-conduct that was not caused by their sex-cannot establish that the conduct was discriminatory disparate treatment. However, they may be able to satisfy the discrimination requirement for

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actionable sexual harassment through the disparate impact theory of discrimination. Disparate impact discrimination occurs when a facially neutral employment practice disproportionately harms members of a protected class and is not job-related or consistent with business necessity.(fn9) Should women in workplaces festooned with nude pin-ups, in which vulgar language and discussions of sex are commonplace, be able to sue their employers for sexual harassment, claiming that the work environment disproportionately harms them in violation of Title VII?(fn10)

This Article explores whether non-targeted sexual conduct in the workplace should be actionable under Title VII. Part II describes courts' evolving understanding of sexual harassment as a form of sex discrimination, including their tendency to assume that any sexual conduct in the workplace constituted sex discrimination and the Supreme Court's rejection of that approach in Oncale. Part III discusses sexual harassment as a form of disparate treatment discrimination and explains why non-targeted sexual conduct in the workplace cannot be actionable under a disparate treatment theory. Part IV analyzes whether non-targeted workplace sexual conduct can be actionable under the disparate impact theory of discrimination, which requires a plaintiff to prove that a facially neutral employment practice has a disparate impact on persons of one sex. Part V explores potential problems with finding non-targeted workplace sexual conduct actionable. In Part VI, the Article concludes that non-targeted sexual conduct in the workplace should be actionable only if the con-duct's disproportionate impact on women is great.

II. THE EVOLVING UNDERSTANDING OF SEXUAL HARASSMENT AS A FORM OF SEX DISCRIMINATION

Courts have struggled to determine whether and under what circumstances sexual conduct in the workplace violates Title VII's prohibition of sex discrimination in employment.(fn11) Courts initially viewed

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workplace sexual conduct, even when a supervisor based employment decisions on a subordinate's willingness to engage in such conduct, as outside the scope of Title VII. After courts recognized that workplace sexual conduct could constitute sexual harassment in violation of Title VII, however, they began ignoring the statutory requirement that such conduct be sexually discriminatory. Instead, courts just looked at whether the challenged conduct was sexual in nature, reasoning that, if it was, it could be the basis of a sexual harassment claim. Under this view, any workplace sexual conduct, even if it was nontargeted, could be the basis of a Title VII claim. In its 1998 decision in Oncale v. Sundowner Offshore Services, Inc.,(fn12) the Supreme Court rejected this view, holding that it was not sufficient for harassing conduct to be sexual in nature. Rather, to be actionable under Title VII, harassing conduct must constitute discrimination because of sex.(fn13)

A. Recognition of Quid Pro Quo Sexual Harassment as Actionable Under Title VII: The Relevance of Desire

Courts first recognized that sexual conduct in the workplace could violate Title VII in the late 1970s. The first cases involved allegations of what was termed quid pro quo sexual harassment, where supervisors conditioned employment benefits on sexual favors.(fn14) In the typical case, the female plaintiff alleged that her employment was terminated because she rejected her male supervisor's sexual advances. At first many courts did not view this conduct as violative of Title VII. According to some courts, such conduct reflected the personal and private preferences of the plaintiff's supervisors, not actionable sex discrimination in the workplace.(fn15)

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Other courts held that plaintiffs were discriminated against because they refused to provide sexual favors, not because of their gender. In Barnes v. Train, for example, the plaintiff alleged that her position was eliminated because she refused her male supervisor's sexual advances. The court rejected the plaintiff's Title VII claim, reasoning that "[t]he substance of plaintiff's complaint is that she was discriminated against, not because she was a woman, but because she refused to...