GENDER DISCRIMINATION AND SEXUAL HARASSMENT

Gender discrimination, or sex discrimination, may be described as the unfair treatment of a person because of that person's sex. Historically, females have been discriminated against in the United States based solely on their gender. The Supreme Court did not consider women under the Fourteenth Amendment's guarantee of "equal protection of the laws" until the 1970s. By the late twentieth century, civil rights laws prohibiting sex discrimination were being applied to the protection of males as well.

Fatherly Protection

Paternalism is defined as the protective behavior of a father toward his child. Like the general public's view toward women at the time, the Supreme Court's attitude toward women and their role in American society in the nineteenth century was one of paternalism. Women, they believed, belonged at home to care for their families and were much too delicate to have occupations or deal with issues outside of the home. This philosophy was used repeatedly from the 1870s until the 1960s to justify ignoring the Fourteenth Amendment's "equal protection of the laws" when issues concerning unfair treatment of women arose. Equal protection was intended to be a constitutional guarantee that no person or persons would be denied protection of the laws that is enjoyed by other persons or groups.

An early example of this disregard for the Fourteenth Amendment came in Bradwell v. Illinois (1873). Based completely on gender, a state refused to issue a woman a license to practice law, an apparent clear violation of "equal protection of the laws." However, the Court agreed with the state and justified their decision with a paternalistic explanation. Justice Joseph P. Bradley wrote that women's "natural . . . delicacy" made them unfit "for many of the occupations of civil life [such as being a lawyer]." Continuing, he observed that "divine ordinance [God's laws]" and the very "nature of things" indicated that a woman must remain within her home circle.

Likewise, the Court ruled in Minor v. Happersett (1875), that the Fourteenth Amendment did not require state governments to allow women to vote. The Minor decision was not erased until 1920, when the Nineteenth Amendment to the U.S. Constitution giving women the right to vote was adopted. Concerning jury duty, the Court in Strauder v. West Virginia (1880) decided that state governments could prohibit women from serving on juries. Concerned about women's health and morals, the Court in Cronin v. Adams (1904) upheld a Denver law barring the sale of liquor to women and prohibiting them to work in bars or stores where liquor was sold. The Court with the same fatherly attitude also addressed and upheld state laws setting maximum working hours for women in Muller v. Oregon (1908). However, for men, setting similar limitations on working hours was considered a violation of their right to work. This protective attitude was still alive in 1961 with the ruling in Hoyt v. Florida. In that case, the Court again upheld an exemption (free of a duty) for women from jury duty commenting, "Woman is still regarded as the center of home and family life."

Civil Rights Era of the 1950s and 1960s

Despite paternalistic views, the mid-twentieth century found many women working outside the home to support themselves and their families. Because women had traditionally been expected to remain at home with limited access to colleges, they were less educated, and thus, left with only low paying, low skill jobs. Women frequently received less pay than a man for the same job. This was based on the idea that women's earnings were less important than a man's when looking at support of families.

The civil rights movement of the 1950s and 1960s made more people aware of all types of discrimination, including gender discrimination. The fact that women were suffering from discrimination that was traditionally rooted in the nation's paternalistic attitudes became apparent to many, including members of Congress. Congress began passing legislation with the intention of fixing this unjust situation. They passed the Equal Pay Act in 1963, followed by the monumental Civil Rights Act of 1964.

Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation [pay], terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Interestingly, Title VII was originally drafted to prohibit discrimination on the basis of "race, color, religion, or national origin," not sex. In a move to defeat the proposed bill, Southern conservatives added sex to the Title VII wording. The conservatives believed this addition was so outrageous that the entire bill would fail. The strategy, however, back-fired and the bill passed. President Lyndon Johnson signed the bill into law without raising any issue with the new wording prohibiting discrimination based on sex. The act also established the Equal Employment Opportunity Commission (EEOC), whose job was to create regulations to enforce the law.

Success in the 1970s

Beginning in the 1970s, women successfully challenged discrimination based on sex in the courts. With the passage of the Civil Rights Act of 1964, women finally had a law under which they could seek equal protection. The Supreme Court's first ruling that struck down a state law that unfairly discriminated against women was in Reed v. Reed (1971). In that case, an Idaho law gave men automatic preference over women to administer (to have charge over) the estate (all possessions) of someone who died without a will. In 1975 in Taylor v. Louisiana, the Court overturned the 1880 Strauder decision by ruling that states could not exclude women from jury duty based on sex alone. During this period, Congress continued to pass laws barring gender-based discrimination. For example, the Education Amendments of 1972 prohibited sex discrimination in all educational programs receiving federal aid. In 1973 Congress approved a bill prohibiting the denial of financial credit based on sex.

Men also sought equal protection from gender discrimination. In Frontiero v. Richardson (1973) the Court ruled on a military regulation that required husbands, in order to receive certain benefits, to prove they were dependents or relied on their military wife for support. A wife of a military man never had to prove dependency. Therefore, the law was based purely on gender and was struck down. Likewise, the Court struck down in Craig v. Boren (1976) an Oklahoma law permitting the sale of low-alcohol beer to women at the age of eighteen, but to men at the age of twenty-one.

Gender discrimination in educational programs

Title IX of the Education Amendments of 1972 prohibits gender discrimination in federally funded education programs, including athletic activities. Title IX has prompted legal action by female athletes, who claim they are not provided the same benefits, treatments, services, and opportunities as their male peers.

In 1982 the Court in Mississippi University for Women v. Hogan struck down a women-only admissions policy at a state university school of nursing. In yet another strike against the paternalistic view toward women, the Supreme Court in United States v. Virginia (1996) found a male-only admission policy practiced by Virginia Military Institute (VMI) unconstitutional (does not follow the intent of the Constitution).

Sexual harassment defined

Although great strides in fighting gender discrimination were taken in the 1970s, largely due to the Civil Rights Act of 1964, abuses falling within the category of sexual harassment generally were not addressed. Finally, in 1980 due to pressure from women's groups, the EEOC wrote and released guidelines (instructions) which defined sexual harassment. They described it as one form of sex discrimination prohibited by the 1964 act. EEOC guidelines define sexual harassment in the following way:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conducts of a sexual nature constitute (are) sexual harassment when: (1) submission to (agree to) . . . or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals, or (2) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile (threatening), or offensive working environment.

The first key word in the definition is "unwelcome." Unwelcome or uninvited sexual communication or conduct is prohibited. A court will review the whole circumstance of a reported situation to determine if the conduct was unwelcome. The next key words in the definition are sexual advances or favors. Verbal advances or favors might include oral or written requests for dates or sex, comments about the victim's body, jokes, or whistles. Physical advances or favors might include hugging, kissing, grabbing, staring, or standing very close. Cartoons or pictures of a sexual nature may also be considered advances.

Next, the EEOC guidelines distinguish between two types of sexual harassment. The first type is referred to as "quid pro quo," giving one valuable thing to receive another valuable thing. In familiar terms, this is called a "sex for jobs" situation. An example of sexual harassment that would be considered "quid pro quo" is when a supervisor seeks sex from an employee in exchange for a pay raise, a promotion, or even continuation of the employee's job. The second type of sexual harassment is referred to as "hostile working environment." An example of "hostile working environment" sexual harassment is when the repeated sexual conduct or communication of a supervisor or co-worker creates a threatening work environment for an employee. The employee's salary or job security may not be involved. However, the offensive actions have poisoned the work environment making it difficult or unpleasant for an employee to do his or her job.

Supreme Court begins to speak

The Supreme Court did not address the issue of sexual harassment until the 1986 case of Meritor Savings Bank v. Vinson The ruling in Meritor became a turning point for sexual harassment cases. The Court used the EEOC's guidelines to unanimously (all justices in agreement) decide that sexual harassment in the workplace is illegal and protected under Title VII of the Civil Rights Act of 1964. After 1986, both state courts and the Supreme Court continued to clarify (make clearer) what constituted sexual harassment.

Damages or monetary awards for victims

In 1991, the U.S. Senate held confirmation hearings on Clarence Thomas' appointment to a justice position on the Supreme Court. During the hearings Anita Hill testified that she had been sexually harassed by Thomas. Although Justice Thomas' appointment was not blocked, the hearings did bring sexual harassment to the attention of the entire nation. Partly due to this increased visibility, Congress passed the 1991 Civil Rights Act allowing for monetary payments (damages) to be paid to victims of sexual harassment.

Supreme Court adds further insights

In Harris v. Forklift (1993) the Court ruled that a victim has to suffer psychological damage in order to prove a hostile work environment. The Court ruled in Burlington Industries, Inc. v. Ellerth (1997) that a quid pro quo case could come from a single incident, but a hostile work environment generally develops over time and the victim must show "severe or pervasive (persistent over time)" conduct. Also in Burlington Industries, the Court outlined important steps employers could take to help them avoid liability (employer held responsible for an employees conduct), such as putting policies in place to prevent and correct sexually harassing behavior. Faragher v. Boca Raton (1998) provided yet another wake-up call to large employers. The Court asserted that companies must establish policies against sexual harassment by describing ways to investigate and correct wrongdoings. They must also clearly communicate these policies to their employees. Failing to communicate with employees could result in employer liability for the offensive behavior of its supervisors.

In Oncale v. Sundowner Offshore Services Incorporated et al. (1998), the Court dealt with "same sex" offenses. The Court ruled that an employee can seek damages from his employer even when the victim is sexually harassed by another employee of the same sex.

Sexual harassment in schools

Sexual harassment is prohibited in all federally funded schools under Title IX of the Education Amendments of 1972. Schools must have a policy prohibiting sexual discrimination including sexual harassment, and must inform students, employees, and parents of the policy. Similar categories of quid pro quo and hostile work environment exist under Title IX. For example, a situation in which a teacher or coach makes sex a requirement for a passing grade would be considered quid pro quo harassment. Hostile environment, on the other hand, applies when a student is subjected to "unwelcome" and "pervasive" actions. In the academic setting, the party claiming harassment must report the incident to authorities who have the power to correct the situation within the system. In Gebser et al. v. Lago Vista Independent School District (1998), the Court held that a student could not recover damages for sexual harassment because school officials were never notified of the alleged harassment. Therefore, the school had no opportunity to resolve the situation.

Sexual harassment in the U.S. Military

Sexual harassment is prohibited in all branches of the military. In 1994, Secretary of Defense, William Perry, created the military's version of the EEOC, the Defense Equal Opportunity Council Task Force on Discrimination and Sexual Harassment (DEOC). The DEOC was created to investigate the procedures used by the military to register complaints and to suggest means of improving the procedures. Sexual harassment in the military can be particularly harmful to a victim's life. Victims and offenders may often live close together, and a superior in the military has great power to influence a subordinate's (soldier) future life path. Despite attempts to prevent sexual harassment in the military, top officials admitted that sexual harassment persisted within all ranks, genders, and racial groups at the end of the twentieth century.

Prevention of sexual harassment

The Supreme Court and state courts have clearly shown that they will apply EEOC guidelines in sexual harassment cases. EEOC guidelines include directions for employers on how to prevent, recognize, investigate, and resolve sexual harassment within businesses. As a result, many organizations established steps to follow with complaints. Complaints may be filed within the business or directly with the EEOC or state or local agencies responsible for fair employment practices. In severe or unresolved cases, lawsuits may be filed seeking damages (monetary payments). The ongoing battle of eliminating sexual harassment depends on constant vigilance (watchfulness) in the workplace, educational system, and the military.

Suggestions for Further Reading

Chaiet, Donna. Staying Safe at School. New York: Rosen Publishing Group, 1995.

O'Shea, Tracy, and Jane LaLonde. Sexual Harassment: A Practical Guide to the Law, Your Rights, and Your Options for Taking Action. New York: St. Martin's Griffin, 1998.

Petrocelli, William, and Barbara Kate Repa. Sexual Harassment on the Job. Berkeley, CA: Nolo Press, 1994.

Segrave, Kerry. The Sexual Harassment of Women in the Workplace, 1600 to 1993. Jefferson, NC: McFarland & Company, Inc., 1994.