Blame the Supreme Court for America’s sexual harassment nightmare.

Blame the Supreme Court for America's Sexual Harassment Nightmare

Blame the Supreme Court for America's Sexual Harassment Nightmare

The law, lawyers, and the court.
Oct. 17 2017 7:02 PM

Who’s to Blame for America’s Sexual Harassment Nightmare?

The Supreme Court, for one.

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Harvey Weinstein, Donald Trump, and Roger Ailes.

Pascal Le Segretain/Getty Images; Drew Angerer/Getty Images; Stephen Lovekin/Getty Images

Workplace sexual harassment has been illegal in the United States for 53 years. It still happens every day. High-profile examples abound: President Donald Trump—who has boasted of committing sexual assault—is being sued for sexually harassing a contestant on The Apprentice, one of 15 alleged victims of Trump’s sexual misconduct. Hollywood mogul Harvey Weinstein has been accused of sexual assault and harassment by dozens of women. Both Roger Ailes and Bill O’Reilly were pushed out at Fox News after a flood of sexual harassment allegations. The problem is not limited to famous men or prominent workplaces. In fiscal 2016, the Equal Employment Opportunity Commission received nearly 7,000 complaints alleging sexual harassment. State agencies received thousands more. And these numbers don’t begin to tell the full story: The EEOC estimates that roughly 3 out of 4 individuals who experience workplace harassment do not report it. An overwhelming majority of harassment victims are women.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Diluted civil rights laws and culturally ingrained misogyny discourage many victims from coming forward. Those who do file complaints often face an impossibly high bar to justice. These problems are not intractable. American lawmakers and employers, though, have shown little interest in surmounting them.

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Sex discrimination in the workplace has theoretically been a federal concern since 1964. That was the year Congress passed the Civil Rights Act, which included a provision—Title VII—barring employment discrimination “because of sex.” (There is a persistent myth that this clause was added as a poison pill to kill the bill. That is untrue: It was actually inserted by a racist congressman who did not want black women to enjoy more protection in the workplace than white women.) The government essentially ignored this provision for a decade. An early executive director of the EEOC called the bar on sex discrimination “a fluke” that was “conceived out of wedlock.”

The courts and the EEOC began to acknowledge Title VII’s ban on sex discrimination in the 1970s. They interpreted it stingily, however, recognizing only disparate treatment between men and women as unlawful discrimination. As late as 1975, a federal judge ruled that a supervisor who had made unwelcome sexual advances toward two female employees could not have possibly violated Title VII. Otherwise, he scoffed, workers could face a lawsuit every time they “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.”

Finally, in 1977, the U.S. Circuit Court of Appeals for the District of Columbia held that workplace sexual harassment could, on its own, violate Title VII. The court reasoned that quid pro quo harassment—sleep with me or I’ll fire you—obviously constituted sex discrimination. “But for her womanhood,” the court explained, an employee’s “participation in sexual activity would never have been solicited.” Then, in 1980, the EEOC took the next logical step and recognized that sexual harassment that creates a hostile work environment can also amount to sex discrimination. The Supreme Court affirmed these theories in 1986.

Even as the court expanded the definition of actionable sexual harassment, it failed to answer a key question: When is an employer liable for harassment in the workplace? The justices finally created a complex theory of liability in 1998. When a supervisor engages in quid pro quo sexual harassment, the employer is automatically liable. When a supervisor creates a hostile work environment, however, employers can assert a two-part defense: They may avoid liability by proving they exercised reasonable care to prevent or correct harassment, and that the victim unreasonably failed to take advantage of preventive or corrective opportunities. (This is called the Faragher–Ellerth defense.) If a victim’s co-worker (rather than her supervisor) engages in harassment, her employer is only liable if it was negligent—meaning it should have known about the problem, or knew and failed to address it.

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This framework was meant to encourage employers to take affirmative steps to stop harassment. Instead, it has allowed them to get away with doing the bare minimum, creating a culture of “file cabinet compliance,” one in which workers sign a sexual harassment policy that the company then files away. If an employee files a harassment complaint, many courts have interpreted the Faragher–Ellerth defense to require only a perfunctory investigation. The employer might interview both parties, decide the matter is ambiguous, and close the investigation, filing away all records. If the victim sues, the employer can wave that signed piece of paper in court. The company has done absolutely nothing, yet it has satisfied its legal burden.

There’s a second enormous flaw in this legal framework: the focus on the victim of discrimination rather than the perpetrator. Courts inquire whether the victim tried hard enough to bring her harassment to the attention of her superiors. The victim must therefore prove that she endeavored to make her superiors aware of her suffering. This requirement applies to no other forms of discrimination—just harassment cases. Gillian Thomas, senior staff attorney at the ACLU Women’s Rights Project and author of Because of Sex, a history of Title VII, told me there is “a direct line between that legal requirement and the fear of questioning and scrutiny that affects victims. They are afraid of becoming the focus of complaints that they lodge, and rightly so.”

Thomas pointed out yet another legal requirement that sometimes stacks the deck against victims of harassment. The current legal standard requires that harassment must be “unwelcome” to qualify as a violation of Title VII. This prerequisite, Thomas said, is presumably designed to screen out “harmless mistakes” and “clumsy efforts at romantic involvement in the workplace.” But she noted it has “historically led to the questioning and scrutinizing of victims.” If a victim has ever bantered with her harasser, for example, her employer may argue that the harassment was welcome—or that the employer reasonably disregarded it as typical repartee. In the end, this legal standard becomes another excuse for courts and employers to blame the victim.

It gets worse. In 2013, the Supreme Court’s conservatives issued a 5–4 decision that further limited the ability of harassment victims to vindicate their rights in court. In Vance v. Ball State University, Justice Samuel Alito narrowed the definition of a supervisor to those with hiring and firing power. Alito’s restrictive definition placed new obstacles before employees who are harassed by coworkers who control their work schedules but cannot technically fire them. Now these victims must prove to a court that their employers were negligent.

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“That,” Justice Ruth Bader Ginsburg explained in dissent, “is a burden not easily carried. An employee may have a reputation as a harasser among those in his vicinity, but if no complaint makes its way up to management, the employer will escape liability.” Alito reportedly rolled his eyes and shook his head while Ginsburg read her dissent; the unfortunate gender dynamics that Title VII is meant to eliminate affect workplaces both high and low.

Combine Faragher–Ellerth with Vance and you can see how the Supreme Court has created a legal environment that encourages victims of sexual harassment to remain silent. It doesn’t have to be this way. Congress could address the justices’ errors by reversing their decisions via statute; it has done so in the past when legislators concluded that the Supreme Court had misinterpreted Title VII. Given that our Republican-controlled Congress seems unlikely to revise the Civil Rights Act, let alone tweak the law to favor employees, states and cities can step in to the fill the void. New York City, for instance, has rejected Faragher–Ellerth, subjecting employers to a stricter standard where sexual harassment is concerned. But it’s hard to see how a patchwork of local, incremental improvements will resolve a nationwide problem.

But the courts alone do not shoulder responsibility for our sexual harassment scourge. As the Fox News implosion illustrated, some employers compel employees to sign mandatory arbitration agreements, stripping them of their rights to sue. The Weinstein scandal has also demonstrated the danger of nondisclosure agreements: These allow employers to buy the silence of wronged employees, blocking the pipeline of cases going to the courts. Congress could curtail the use of mandatory arbitration and NDAs in workplace discrimination cases. It won’t anytime soon, although New York state might.

This area of the law cannot be divorced from culture, and far too many American workplaces maintain a culture that tolerates routine abuse. The nightmarish sexism ubiquitous in Silicon Valley is more widespread than we’d like to believe, and the lack of gender parity and female leadership in the American workforce allows misogyny to fester from the factory floor to the C-suite.

Presuming that sexism will not be eradicated any time soon, there are remedial steps all employers can take to stop the next Weinstein. Thomas, the ACLU attorney, told me employers seem to know what to do after a sexual harassment scandal come to light. “Fox hired Paul Weiss to do a huge investigation,” she said. “Uber hired Eric Holder. When these scandals hit, employers suddenly know quite well how to root out harassment.”

“Imagine a world in which an employer decides to invest the time, energy, and money before there’s a high-profile allegation,” Thomas continued. “Think of the message employers would send to employees if they said, ‘We’re not going to wait; we’re going to make sure we’re doing this right.’ These mechanisms are not rocket science.”

Many companies would prefer to stay ignorant of toxic sexism, and the Supreme Court has made it too easy for them to do so. But companies are free to go beyond the requirements of the law. There is a sexual harassment crisis in America. Every employer in this country should assume that crisis extends to their own workplace until they can prove that it does not.

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