Lower federal courts often fail to provide plaintiffs in sexual harassment cases the relief intended by Title VII of the Civil Rights Act of 1964 and mandated by the Supreme Court when it recognized the cause of action twenty years ago. There is little doubt that sexual harassment in the workplace persists. However, lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers jury instructions and guidelines to judges that reflect what the Supreme Court intended.
A female deputy sheriff alleged that, in violation of Title VII of the Civil Rights Act of 1964, she was sexually harassed by another officer in the County Sheriff's Department where they worked. (1) The co-worker's harassing behavior included, among other acts, his comment to the deputy that "you can just walk into the room and I get an erection;" his calling the deputy a "frigid bitch" on two occasions, once when he tried to kiss her after a department Christmas party, and another time when she refused to join him in a hot tub at a hotel where they both were attending a conference; his telling her that "her ass sure does look fine;" and his descriptions to her and others of a golf tournament where the caddies were strippers and they were directed "to place golf balls into their vaginas and to squirt them onto the green." (2)
The federal district court granted summary judgment for the defendants. In 2006, the Court of Appeals for the Eleventh Circuit affirmed the lower court's decision, stating that the conduct was not sufficiently severe or pervasive to constitute actionable sexual harassment. (3)
This brief description of a 2006 disposition represents one of many decisions in which courts have unreasonably ruled that plaintiffs could not establish the existence of a hostile work environment caused by sexual harassment. (4) There are numerous examples of cases in which summary judgments for defendants have been improperly granted or verdicts for plaintiffs have been vacated. (5) There is widespread agreement by scholars that even twenty years after the recognition by the Supreme Court of the cause of action for hostile work environment sexual harassment, there is a failure to provide the relief intended under Title VII and mandated by the Court. (6)
"Sexual harassment in American worklife is [common-place]--[affecting] as [many] as 80 percent of women in certain sectors, according to one study. But most women don't stand a chance of winning a lawsuit." (7) There seems little doubt that sexual harassment in the workplace persists and has measurable and immeasurable impacts on those who are victimized by this form of discrimination and on their employers. (8)
In 1986, the Supreme Court of the United States recognized a cause of action for workers subjected to a hostile work environment created by sexual harassment. (9) It held that such conduct, when objectively severe or pervasive, violates Title VII of the Civil Rights Act of 1964. (10) However, since then, lower courts have not consistently or rationally applied this standard. This is not the result of a failure of the Supreme Court to establish a workable and fair standard, nor is it due to an absence of scholarly or judicial analysis of those standards. Nevertheless, troubling and confusing precedent is created and followed because too often Supreme Court cases are relied on for only the narrowest propositions. Lower courts ignore or dismiss the Supreme Court's reasoning which would provide the necessary guidance to determine whether harassment is severe or pervasive. (11)
To address the problem of unreasonable and unfair dispositions denying plaintiffs relief, some commentators have suggested solutions requiring a change in the law, through legislation, manipulation or abandonment of Supreme Court standards, (12) or use of social science to determine violations of the law. …