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37 2 Background to Gender-­and Sex-­ Based Harassment Law Historical, Legal, and Theoretical Background of Gender-­ and Sex-­ Based Harassment In 1986, the United States Supreme Court decided Meritor Savings Bank v. Vinson, which held that Title VII of the Civil Rights Act of 1964 forbids sexual harassment that creates a hostile working environment (Meritor Saving Bank v. Vinson 1986). Meritor reflected the changes in attitudes toward women that resulted from the feminist movement in the 1960s and ‘70s, and made it possible for women to hold jobs that men had previously held exclusively. The express language of Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment because of an individual’s race, national origin, color, religion, and sex, but the Act does not mention harassment or hostile work environments. Beginning in 1971, however, lower federal courts began to hold that racial harassment constituted illegal race discrimination under Title VII (Carino v. University of Oklahoma Board of Regents 1984; Vaughn v. Westinghouse Electric Corp. 1980; Rogers v. E.E.O.C. 1971). At the time, however, courts viewed sexual harassment as different from racial harassment. In their view, sexual harassment was not a violation of the Act because sexual propositions and encounters, even if not welcomed by female employees, were seen as natural and private. Finally , in 1977, the D.C. Circuit Court of Appeals held in Barnes v. Costle that Title VII created a cause of action for a woman who alleged that her boss fired her because of her refusal to have an affair with him. There was still a question, however, about employer liability if the employer did not know about the harassment (Barnes v. Costle 1977). Two years later, Catharine A. MacKinnon published Sexual Harassment of Working Women: A Case of Sex Discrimination, in which she argued that employers should be vicariously liable for sexual harassment in the workplace under Title VII (MacKinnon 1979). In 1980, a 38 | Background to Gender-­and Sex-­ Based Harassment Law year after the publication of MacKinnon’s book, the Equal Employment Opportunity Commission (EEOC) promulgated a new guidance that adopted MacKinnon’s theory and distinguished quid pro quo and hostile work environment sexual harassment claims. Quid pro quo claims were linked directly to an economic quid pro quo. Hostile work environment claims were based on harassment that altered the terms or conditions of employment without an economic detriment. Both types of harassment were actionable, according to the guidelines, if they had the “purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment” (29 C.F.R. § 1604.11(a)(3) (2007)). Because EEOC interpretive guidances are not binding on the courts, the next move was up to the courts. Lower federal courts followed the guidance and held that there was a cause of action under Title VII for sexual harassment (Katz v. Dole 1983; Henson v. City of Dundee 1982). But it would take the Supreme Court to apply the law nationwide. The Court took this step in Meritor Savings Bank v. Vinson (1986). The allegations in the complaint were stark. Mechelle Vinson, a nineteen-­ year-­ old black woman who worked at the bank, alleged that Sidney Taylor, a middle-­ aged black bank manager, forced her to engage in sexual relations with him, raped her, and exposed himself to her. She testified that he engaged in similar wrongful behavior with other women in the bank. In a bench trial, the federal district court held that if sex had occurred between Taylor and Vinson, it was voluntary and not a Title VII violation (Vinson v. Taylor 1980). The D.C. Circuit Court of Appeals reversed and held that a cause of action can exist for a hostile work environment under Title VII even if there is no economic harm (Vinson v. Taylor 1985). On certiorari, the United States Supreme Court affirmed that in the absence of economic harm, an employer’s creation of a hostile working environment can lead to employer liability. If the plaintiff demonstrates that the sexual harassment was sufficiently severe or pervasive to alter the employee’s work environment, the behavior constitutes sex discrimination under Title VII. In 1993, the Court clarified this ruling in Harris v. Forklift Systems, Inc., where it held that it was not necessary for the plaintiff to prove psychological harm in order to recover in a sexual harassment case (Harris v. Forklift Systems, Inc. 1993). She merely...


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