ANTIDISCRIMINATION LEGISLATION (Update 2b)

Racial and gender employment discrimination has been a major factor in producing a condition of racial and gender inequality in the United States. Congress made a strong national commitment to bringing an end to racial and gender employment discrimination by the enactment of Title VII of the civil rights act of 1964. In the first two decades of its operation, the Supreme Court interpreted Title VII expansively in order to accomplish Congress's remedial purpose. The Court held that Title VII not only prohibited intentional discrimination, but also prohibited employment practices that were neutral in form, but that had a "disparate impact" on the employment opportunities of racial minorities and women. Under the rule of griggs v. duke power company (1971), whenever an employment practice had such an impact, it violated Title VII unless the employer could show that the practice was justified by "business necessity." At the same time the Court held that because the underlying purpose of Title VII was to increase employment opportunities for racial minorities and women in areas from which they had traditionally been excluded, Title VII permitted employers to give express preference to racial minorities and women in hiring and promotions—that is, affirmative action—where minorities or women were manifestly underrepresented in a traditionally segregated job category of the employer's workforce. Under united steelworkers of america v. weber (1979) and johnson v. transportation agency (1987), such preferences must be reasonable and must not "unfairly trammel" the interests of white or male employees.

In its 1988–1989 term, the Court rendered a series of decisions that were widely perceived as making it more difficult for racial minorities and women to establish Title VII discrimination claims against employers, particularly in regard to "disparate impact" claims. Congress responded by enacting the civil rights act of 1991, which overruled aspects of all these decisions, and added other provisions that expanded significantly the protections against employment discrimination afforded by federal law. In regard to "disparate impact" claims for example, the 1991 act provides that employment practices having an identifiable "disparate impact" are prohibited unless the employer can establish that the challenged practice "is job-related for the position in question and consistent with business necessity." At the same time, despite the heated debate over "affirmative action," Congress did not modify Title VII to prohibit the use of express employment preferences for racial minorities and women that the Court had held to be permissible. Although Title VII does not permit the use of "quotas" or require "proportionality," it does ensure that racial minorities and women will not suffer direct or indirect discrimination in their employment opportunities.

A pernicious form of "discrimination with respect to conditions of employment" under Title VII takes the form of sexual harassment. While the victims of sexual harassment are usually women, they can be men as well and, under the rule of Oncale v. Sundowner Offshore Services (1998), can be of the same sex as the perpetrator. The Court has defined more precisely when workplace behavior of a sexual nature can amount to "discrimination with respect to conditions of employment" and so be violative of Title VII. One situation is quid pro quo sexual harassment, which occurs when an employer or supervisor makes an employee's submission to sexual demands a condition for conferring or withholding employment benefits, and the employee either submits or suffers tangible employment harm because of the failure to do so. The other situation is hostile environment sexual harassment, which occurs when sexually objectionable behavior in the work-place is so "severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment."

In its 1998 term, the Supreme Court added some refinements to sexual harassment law. The employer is liable to the employee for a violation of Title VII whenever quid pro quo sexual harassment has been engaged in by an employer or a supervisor, and the employee has suffered tangible employment harm because of it. The employer is also liable for hostile environment sexual harassment engaged in by a supervisor, even though the employer had no knowledge of the behavior and was not negligent in employing the supervisor. However, the employer has a defense to such liability if (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Thus, employers can protect themselves against Title VII liability for sexual harassment by establishing effective antiharassment policies and procedures, and communicating these policies and procedures to employees and supervisors. To the extent that employers establish and vigorously enforce effective antiharassment policies and procedures, there should be a significant decline in sexual harassment in the workplace.

Robert A. Sedler
(2000)

(see also: Workplace Harassment.)

Bibliography

Abrams, Kathryn 1988 The New Jurisprudence of Sexual Harassment. Cornell Law Review 83:1169–1230.

Bernstein, Anita 1997 Treating Sexual Harassment with Respect. Harvard Law Review 111:445–527.

Browne, Kingsley R. 1993 The Civil Rights Act of 1991: A "Quota Bill," A Codification of Griggs, A Partial Return to Wards's Cove, or All of the Above. Case Western University Law Review 43:287–400.

Franke, Katherine M. 1997 What's Wrong with Sexual Harassment? Stanford Law Review 49:691–772.

Grover, Susan S. 1996 The Business Necessity Defense in Disparate Impact Discrimination Cases. Georgia Law Review 30:387–430.

Sedler, Robert A. 1992 Employment Equality, Affirmative Action, and the Constitutional Political Consensus. Michigan Law Review 90:1315–1337.

Special Project 1995 Current Issues in Sexual Harassment Law. Vanderbilt Law Review 48:1009–1214.

Symposium 1993 The Civil Rights Act of 1991: Theory and Practice. Notre Dame Law Review 68:911–1164.