State regulation of sexual harassment

• Author: Lettie Rose/Jessica Pacwa/Julia Cash/Lynzai Cutler/Megan Robertson/Madison Torrez
• Pages: 811-853

STATE REGULATION OF SEXUAL HARASSMENT

EDITED BY LETTIE ROSE, JESSICA PACWA, JULIA CASH, LYNZAI CUTLER,

MEGAN ROBERTSON, AND MADISON TORREZ

I. INTRODUCTION ........................................ 812

II. BASIC ELEMENTS OF SEXUAL HARASSMENT LAWS ............... 816

A. QUID PRO QUO.................................... 816

B. HOSTILE WORK ENVIRONMENT ......................... 817

III. EEOC & OTHER FEDERAL LAWS ........................... 818

A. TITLE VII ....................................... 818

B. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ............ 819

C. FAIR EMPLOYMENT PRACTICE AGENCIES .................. 820

D. RELATED FEDERAL LAWS............................. 820

E. CURRENT POLICIES ................................. 821

IV. STATE IMPLEMENTATION AND EXPANSION OF SEXUAL HARASSMENT

LAWS .............................................. 822

A. EXPANDED CLASS PROTECTIONS ........................ 823

B. ADDITIONAL ADMINISTRATIVE REQUIREMENTS .............. 827

1. Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 828

2. Posting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 831

C. EMPLOYER BEST PRACTICES AND PROACTIVE PREVENTION ...... 832

D. COMMON LAW TORT PROTECTION ....................... 834

V. VARYING STATE AND FEDERAL INTERPRETATIONS OF THE ELEMENTS OF

A SEXUAL HARASSMENT CLAIM ............................ 835

A. CONDUCT OF A SEXUAL NATURE........................ 836

B. CONDUCT BASED ON SEX ............................. 838

C. CONDUCT OF A SEVERE AND PERVASIVE NATURE ............ 838

VI. EMPLOYER LIABILITY.................................... 839

A. IMPUTABILITY OF THE EMPLOYER ....................... 840

B. EMPLOYER DEFENSES ............................... 841

C. DEFINITION OF “SUPERVISOR”.......................... 843

VII. MODERN DEVELOPMENTS ................................. 844

A. THE “BECAUSE OF” GENDER TEST ...................... 845

B. THE CONDUCT-BASED TEST ........................... 846

C. HOSTILITY TOWARDS A SINGLE SEX ..................... 847

D. HARASSMENT BASED ON STEREOTYPES ................... 847

E. SEXUAL HARASSMENT OF TRANSGENDER PERSONS ........... 848

VIII. SEXUAL HARASSMENT IN THE MEDIA......................... 849

811

IX. CONCLUSION.......................................... 852

I. INTRODUCTION

In October 2017, more than one dozen women made public decades of alleged

sexual harassment by Harvey Weinstein, a major Hollywood producer.

1

See Ronan Farrow, From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers

Tell Their Stories, NEW YORKER (Oct. 10, 2017, 10:47 AM), https://perma.cc/Z88D-QD6G.

Within

two weeks, Weinstein was fired from his studio and resigned from the board.

2

Harvey Weinstein ‘steps down from company board’, BBC NEWS (Oct. 18, 2017), https://perma.

cc/K8SY-9AY3.

Partly as a reaction to these events, women and others across the United States

began using the hashtag “#MeToo” to share their own experiences with sexual

harassment and abuse.

3

More Than 12M “Me Too” Facebook Posts, Comments, Reactions in 24 Hours, CBS NEWS (Oct.

17, 2017, 6:26 PM), https://perma.cc/A8RV-3X7S. The phrase “Me Too” was first popularized in 2007

by Tarana Burke, an activist hoping to spread empathy and connect with survivors of sexual violence.

Alanna Vaglanos, The ‘Me Too’ Campaign Was Created By a Black Woman 10 Years Ago, HUFFPOST

(Oct. 17, 2017, 1:44 PM), https://perma.cc/S6TV-3JB8.

The #MeToo Movement garnered enough attention that

at least 200 powerful and famous men like Matt Lauer, Charlie Rose, Russell

Simmons, Al Franken, Louis C.K., and Kevin Spacey, have been fired or forced

to resign after at least 920 people alleged that “one of these men subjected them

to sexual misconduct.”

4

Audrey Carlsen, Maya Salam, Claire Cain Miller, Denise Lu, Ash Ngu, Jugal K. Patel, & Zach

Wichter, #MeToo Brought Down 201 Powerful Men. Nearly Half of Their Replacements Are Women.,

N.Y. TIMES (Oct. 29, 2018), https://perma.cc/4L7C-AX8H.

While these allegations are receiving unprecedented attention, they are not

new. Sexual harassment in the workplace often comes in the form of sexual

assault, sexualized attention, demeaning comments, and authentic or mock sexual

advances from coworkers or supervisors.

5

And though women continue to file the

vast majority of sexual harassment complaints with the Equal Employment

Opportunity Commission (EEOC),

6

Charges Alleging Sex-Based Harassment (Charges filed with EEOC) FY 2010 - FY 2021, U.S.

EQUAL EMP. OPPORTUNITY COMM’N, https://perma.cc/ZA7D-WMBX (last visited Jan. 7, 2019). In

2018, 15.9% of 7,609 charges alleging sexual harassment were filed by males. The EEOC website

defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal

or physical harassment of a sexual nature.” Sexual Harassment, U.S. EQUAL EMP. OPPORTUNITY

COMM’N, https://perma.cc/395Q-759S (last visited Mar. 1, 2023).

women are not the only individuals who ex-

perience sexual harassment.

7

See infra Part VII; Robin Bailey, Many Men are Sexually Harassed in the Workplace—So Why

Aren’t They Speaking Out?, THE CONVERSATION (Mar. 13, 2018, 7:17AM), https://perma.cc/H7WN-

SWC8 (summarizing research into commonalities between men who experience sexual harassment).

1.

2.

3.

4.

5. Reva B. Siegel, Introduction: A Short History of Sexual Harassment, in Directions in Sexual

Harassment Law 3 (Catharine A. MacKinnon & Reva B. Siegel eds., 2004). This introduction expands

on the history of oppression of women and inequality at work, from slavery to the modern Information

Age. The authors argue that women have experienced unequal power dynamics at work for centuries,

which has led to modern harassment ranging from sexual assault to derogatory comments about the

female anatomy.

6.

7.

812 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:811

To combat harassment at work, Congress enacted Title VII of the Civil Rights

Act of 1964, which implemented the first legal recognition of, and protection

from, sexual harassment outside of tort law.

8

Section 703(a) of Title VII states

that:

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 dis-

criminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such indi-

vidual’s race, color, religion, sex, or national origin; 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 race, color, religion, sex, or

national origin.

9

Thus, Title VII created both a legal cause of action for sexual harassment in

the workplace,

10

as well as an anti-harassment policy meant “to encourage infor-

mal conciliation and to foster voluntary compliance.”

11

Congress’ policy objec-

tive was affirmed in Bostock v. Clayton County, where the Supreme Court held

that sexual discrimination under Title VII exists where an individual is fired on

the basis of their sexual orientation or gender identity.

12

Congress continues to

work to ensure that workplaces are free from discrimination by updating employ-

ment discrimination law.

13

See Pending Legislation That May Impact EEOC, U.S. EQUAL EMP. OPPORTUNITY COMM’N,

https://perma.cc/BV2J-X952 (last visited Oct. 28, 2018); BE HEARD in the Workplace Act, S.3219,

117th Cong. (2021), https://perma.cc/26BN-XL8R.

For example, the BE HEARD in the Workplace Act

of 2021 would prohibit employers from entering into contracts or agreements

with workers that contain non-disparagement or nondisclosure clauses, prohibit

and post-dispute arbitration agreements, and requires the EEOC to provide speci-

fied training and resource materials with regard to prohibited discrimination and

harassment in employment.

14

Congress is also considering the EMPOWER Act,

Part 2 of which would disallow tax deductions for expenses and judgments

incurred in sex harassment litigation,

15

and Part 1 of which would prohibit nondi-

sclosure clauses regarding sex harassment, establish a confidential tip line for

workplace harassment, require disclosure of claims to the SEC, and establish fed-

erally-recommended materials for use in workplace anti-harassment trainings.

16

8. See 42 U.S.C.A. § 2000e-2 (West, Westlaw through Pub. L. No. 117-268).

9. Id. § 2000e-2(a).

10. See id.

11. Stache v. Int’l Union of Bricklayers & Allied Craftsmen, 852 F.2d 1231, 1234 (9th Cir. 1988).

12. See Bostock v. Clayton Cnty, 140 S. Ct. 1731 (2020) (holding that an employer violates Title VII

if he fires an individual on the basis of their sexual orientation or gender identity).

13.

14. S.3219, 117th Cong. § 4 (2021–2022).

15. S.574, 116th Cong. § 2 (2019–2020).

16. S.575, 116th Cong. §§ 4–7 (2019–2020).

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