PBS NOW-Schuster Institute
broadcast investigation of
"Teen Sexual Harassment
"Summer Jobs Often Lead to Harassment," ABC's WCVB-TV Channel 5 Boston's televised broadcast with E.J. Graff, Associate Director, Schuster Institute for Investigative Journalism
"Is Your Daughter Safe at Work?" Good Housekeeping, June 2007
"Are Your Students Safe at Work?" Teachers College Record, July 21, 2009
The long, tortured history
of sexual harassment law—
Does it protect teens?<
“Sexual harassment” is not specified, but complaints about it pour in. “Nobody anticipated it,” said Barry Goldstein, longtime employment attorney. “The sheer amount of it is just extraordinary for those of us who were involved at the beginning.” —p. 102, Getting Even: Why Women Don’t Get Paid Like Men—And What To Do About It, by Evelyn Murphy with E.J. Graff.
Historical note: Meritor came up through the DC Circuit (First Circuit Court of Appeals), where the only three judges who dissented on Meritor’s liability were Robert Bork, Antonin Scalia, and Kenneth Starr, who later was the special prosecutor pursuing Bill Clinton on Whitewater and Monica Lewinsky. Clarence Thomas was heading the EEOC when it reversed its earlier position, and argued to the USSC that Meritor should not be liable. The Clarence Thomas/Anita Hill hearings in the summer of 1991 brought “sexual harassment” to national attention. For Anita Hill's personal account eleven years later, read "Anita Hill: The Rest of the Story," The Boston Globe Magazine, January 19, 2003. (12MB)
“A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.”
—Justice Scalia, Oncale v. Sundowner, 1997.
Photo © Ginasanders
U.S. legal history of sexual harassment:
Statutory and case law as it relates to teens
|1787||US Constitution is ratified|
|1964||Civil Rights Act of 1964 passed|
|1979||Groundbreaking "Sexual Harassment of Working Women" published|
|1980||EEOC wrote "sexual harassment" into its regulations|
|1986||Supreme Court declared sexual harassment to be sex discrimination|
|1991||Civil Rights Act of 1991 passed|
|1995||Government Accountability Act passed|
|1997||Supreme Court declares same-sex harassment is illegal|
|1998||Supreme Court sets criteria that protects employers from legal action|
American law about employment discrimination grows from several sources: statutes passed by Congress and by the states (known as statutory law) that ban such discrimination, and judicial decisions about exactly when and to whom those laws apply made by the relevant federal and state courts (known as case law, since these decisions are made in individual cases). Case law is just as binding as statutory law; judges rely on it for all future cases.
Below is a timeline overview of the major pillars of American sexual harassment law—and policy questions about whether these decisions should be applied to teenagers in precisely the same way as they apply to adult women.
Only male property owners can vote. Slavery is legal. Women have no property or custody rights; their earnings and children belong to their fathers or husbands.
1964: U.S. Congress passes the Civil Rights Act of 1964, which bans discrimination based on race, color, religion, sex, or national origin in situations that include voting and public accommodations (such as hotels and restaurants).
Title VII of the Civil Rights Act of 1964 says that it is unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin” (§703).
1979: In her groundbreaking 1979 book "Sexual Harassment of Working Women," legal scholar and feminist Catherine MacKinnon proposes a concept called “sexual harassment,” a term that, others have reported, grew from discussions within the 1970s feminist movement.
In her book, MacKinnon argued that if a female employee (but not a male employee) is subjected to sexual demands or to an environment that is sexually hostile, and if the employer permits this to continue, then the employer has altered the “terms, conditions, and privileges” of employment based on her sex. The concept was controversial.
In other words: sexual harassment is a civil violation of the 1964 Civil Rights Act’s Title VII not because it’s gross or sexual, but because it makes it harder for one sex to earn her paycheck.
1980: Under the Carter Administration, the EEOC writes MacKinnon’s formulation into its regulations on sex discrimination.
- EEOC regulations define “sexual harassment” as discriminatory both when it is “quid pro quo” harassment (i.e., “if you have sex with me, I will hire/promote/not fire you”) and harassment, in which "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature … has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."
- Federal judges and courts begin to uphold “quid pro quo” harassment as discriminatory on its face.
- “Hostile environment” harassment is more controversial. Some judges and courts rule that this is discriminatory; others do not.
1986: In a landmark decision, the Supreme Court declares sexual harassment to be sex discrimination, in Meritor v. Vinson.
Mechelle Vinson sued Meritor Savings Bank, testifying that her branch vice president, Sidney Taylor, had pressured her into a sexual relationship (which she had agreed to for fear she would lose her job), fondled her in front of other women, fondled other women, walked in on her in the restroom, and threatened her life when she refused any more sex. The Meritor bank argued that Mechelle Vinson “consented” to dating and sex with her VP, and that it couldn’t be held financially liable for something it had not been notified about. The USSC sided with Vinson.
In a landmark decision, all nine members of the United States Supreme Court (USSC) side with Vinson. Justice Rehnquist writes the majority opinion. Several justices write concurring opinions with different reasoning and standards.
- USSC declared (quoting key phrases from Justice Rehnquist’s majority opinion):
- Sexual harassment violates Title VII of the Civil Rights Act. “Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[s]" on the basis of sex.”
- Sexual harassment that creates a "hostile environment" is illegal discrimination if it is "'sufficiently severe or pervasive' to alter the conditions of [the victim's] employment and create an abusive working environment."
- “Hostile environment” is therefore as illegal as “quid pro quo” harassment (have sex with me and I will hire/promote/not fire you).
- Harassment is illegal if it is either severe or pervasive.
- “Mere acquiescence” is not enough to say that Vinson (or other victims) had consented to sex; the question is whether the sexual attention was “unwelcome.” The Supreme Court said that Vinson didn’t “welcome” sex with her boss; she said yes because her job appeared to depend on it. “Welcomeness,” “acquiescence,” and “consent” are therefore key issues in sexual harassment cases.
- Question in teen cases: If a teen is below the age of consent—i.e., if a sexual encounter is statutory rape in criminal law: can she consent in civil law? can she “welcome” the sexual attention?
- Some trial judges say yes, for purposes of the employers’ financial liability, she can consent, even if it is illegal for him to have sex with her.
- The Seventh Circuit Court of Appeals, in Doe v. Oberweiss (Judge Richard Posner), ruled that a legislature's decision on age of consent in criminal law should be respected in civil law as well.
- In a case under state anti-discrimination law, a New Jersey appeals court ruled in J.M.L. v. A.M.P. (July 8, 2005) that sexual contact with a minor cannot be consensual under either criminal or civil law.
- Must the harassment take place on the job? Mechelle Vinson was pressured to go out to dinner with her VP and that was counted as sexual harassment. “Off site” and “on site” are legally irrelevant. In sexual harassment case law, the work relationship is what is deemed relevant.
- Question in teen cases: If a supervisor invites the teens who work underneath him to “party” offsite after work, and makes sexual advances then, is that sexual harassment? Is thei employer liable if management knows that a supervisor or supervisors are supplying drugs or alcohol to minors?
1991: Civil Rights Act of 1991. Congress revises the 1964 Civil Rights Act to add more protections against discrimination in the workplace.
One month after the Clarence Thomas/Anita Hill hearings, Congress strengthens the Civil Rights Act. Before this, women who proved sex discrimination could receive back pay and reinstatement but no punitive damage awards. The 1991 act enabled jury trials and punitive cxash damages for sex discrimination.
1997: In Oncale v. Sundowner, Justice Scalia authors a unanimous decision saying that it is illegal sex discrimination when men sexually harass other men. Joseph Oncale had been working as a roustabout on an oil drilling platform in the Gulf of Mexico when his fellow workers “physically assaulted him in a sexual manner” and “threatened him with rape.”
- USSC declared (with key phrases from Justice Scalia’s opinion):
- Same-sex harassment counts as sexual harassment. Title VII ban on sex discrimination “protects men as well as women,” and human beings are certainly known to discriminate against members of their own group.
- Common sense reveals the difference between acceptable horseplay and discriminatory harassment. “Recognizing liability for same-sex harassment will not transform Title VII into a general civility code for the American workplace…. [C]ourts and juries do not mistake ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation” for genuinely discriminatory harassment.
- Usual interpretation: A few gropes don’t qualify. It has to be truly horrible to get you into court.
- Question in teen cases: Must a teen behave and respond like a “reasonable person” or should there be a stricter protection standard for employers of children who are still in school?
In their response to two sexual harassment cases, Farragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the US Supreme Court said that—as long as employers haven’t taken an “adverse employment action” (i.e., fired, demoted, or reassigned to a worse position, or the like) against the victim, they are not liable for sexual harassment if:
- The employer has programs in place both to prevent sexual harassment and to respond appropriately when it happens
- A victim of sexual harassment fails to use the employer’s programs (i.e., calling the complaint line, bringing a charge to human resources, or the like) to try to get the problem fixed before bringing a lawsuit.
- This standard has been interpreted to mean that the sexual harassment victim has to firmly say no and then complain all the way up the hierarchy—finding the hotline or making use of the complaint structure—if she’s going to have any standing to bring a lawsuit.
- Question in teen cases: Is this a reasonable expectation for a teenager, who is new to the workplace, unsure of her rights and responsibilities, possibly uneasy asserting authority?
- Employment law already has restrictions to protect teens (limits on work hours, for instance). Should employers have stricter liability standards for teens—giving them (like schools) an absolute duty to protect teens from harassers or predators?
© Schuster Institute for Investigative Journalism, Brandeis University, Waltham, MA. All rights reserved.