Friday, April 6, 2018
Kenneth Robert Davis, Strong Medicine: Fighting the Sexual Harassment Pandemic, Ohio State L. J. (forthcoming)
A pandemic of sexual harassment has stricken the country. A recent EEOC report shows that, depending on how the question is posed, between 25 and 85 percent of women respond that they have experienced harassment in the workplace. The report also states that 90 percent of incidents go unreported. Victims do not believe that their employers will be receptive to their complaints, and many fear censure or retaliation. The law is limited in its capacity to deter a pandemic that has psychological, sociological, and cultural causes. Nevertheless, the law has a role to play, particularly in the workplace. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sex, and the courts have long recognized sexual harassment as a form of sex discrimination. The Act has established a framework focused on conciliation, and, where efforts at settlement fail, on litigation. Regrettably, this framework has failed to achieve its mission of deterrence. In Meritor Bank v. Vinson, the Supreme Court established the elements of hostile-work-environment claim. A plaintiff must prove that she was subjected to unwelcome, discriminatory words or conduct of a sexual or gender-related nature so severe or pervasive that they altered the conditions of her employment. In applying this standard, federal courts have rejected claims alleging highly offensive and even egregious misconduct. Several reasons account for the failure of current law to curtail sexual harassment in the workplace. One of the primary reasons is the law’s focus on conciliation and litigation. Under the current model, complainants file grievances with the EEOC, which seeks to settle disputes. If efforts at settlement fail, the current approach authorizes a federal court action. Settling cases may do little to deter abuses. After entering into a settlement agreement, an employer may slip back into complacency. Litigation also fails to promote deterrence because the current framework focuses on compensating victims.
To strengthen Title VII’s deterrent impact, this Article proposes that Congress supplement the current model by granting the EEOC expanded enforcement powers. The EEOC should have broad authority to initiate civil enforcement proceedings in federal court and in quasi-judicial enforcement proceedings. Rather than compensating victims, the purpose of such proceedings would be to identify instances of workplace harassment, and, where appropriate, sanction irresponsible employers. Because the EEOC, in such enforcement proceedings, would not seek relief on behalf of victims, the elements that establish injury would be superfluous. In such proceedings the EEOC should merely have to prove that discriminatory, sexual or gender-related words or conduct would be highly offensive to a reasonable person. By adopting the “highly offensive to a reasonable person” standard, Congress would maximize prevention of sexual harassment in the workplace.