EMPLOYMENT DISCRIMINATION AND SEXUAL
HARASSMENT
EDITED BY KENDALL KASKE, RILEY SMITH, BRIANNA STAMMETTI,
ASHLEY DHONG, POOJA NAIK, PRIYA AGARWAL, SEBIGA LEE, &
EMMA CIHANOWYZ
I. INTRODUCTION ........................................ 484
II. BASIC ELEMENTS OF SEXUAL HARASSMENT LAWS ............ 488
A. QUID PRO QUO.................................... 489
B. HOSTILE WORK ENVIRONMENT ......................... 489
III. EEOC & OTHER FEDERAL LAWS ......................... 490
A. TITLE VII ....................................... 490
1. The McDonnell Douglas Balancing Test . . . . . . . . . . . . . . 491
B. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ............ 492
C. FAIR EMPLOYMENT PRACTICE AGENCIES .................. 493
D. RELATED FEDERAL LAWS............................. 493
E. LGBTQIAþPROTECTIONS ........................... 495
F. CURRENT POLICIES ................................. 498
IV. STATE IMPLEMENTATION AND EXPANSION OF SEXUAL
HARASSMENT LAWS ................................... 498
A. EXPANDED CLASS PROTECTIONS ........................ 499
B. EXPANDED LGBTQIAþPROTECTIONS ................... 502
1. State Anti-Discrimination Statutes ................... 502
2. Limitations and Challenges to the EEOC Guidance . . . . 504
3. State Laws on Employment Discrimination Against
Transgender People ................................ 505
C. ADDITIONAL ADMINISTRATIVE REQUIREMENTS .............. 507
1. Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507
2. Posting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510
D. EMPLOYER BEST PRACTICES AND PROACTIVE PREVENTION ...... 511
E. COMMON LAW TORT PROTECTION ....................... 512
V. VARYING STATE AND FEDERAL INTERPRETATIONS OF THE
ELEMENTS OF A SEXUAL HARASSMENT CLAIM ............... 514
A. CONDUCT OF A SEXUAL NATURE........................ 514
B. CONDUCT BASED ON SEX ............................. 516
C. CONDUCT OF A SEVERE AND PERVASIVE NATURE ............ 517
VI. EMPLOYER LIABILITY .................................. 518
A. IMPUTABILITY OF THE EMPLOYER ....................... 518
B. EMPLOYER DEFENSES ............................... 519
483
C. DEFINITION OF “SUPERVISOR”.......................... 522
VII. MODERN DEVELOPMENTS ............................... 523
A. POST-BOSTOCK DEVELOPMENTS ........................ 523
B. CURRENT STATUS OF MILITARY EMPLOYMENT FOR TRANSGENDER
PEOPLE ......................................... 524
VIII. SEXUAL HARASSMENT IN THE MEDIA ...................... 525
IX. CONCLUSION......................................... 529
I. INTRODUCTION
In October 2017, more than a dozen women went public with decades of
alleged sexual harassment by Harvey Weinstein, a major Hollywood producer.
1
See Ronan Farrow, From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers
Tell Their Stories, NEW YORKER (Oct. 10, 2017), https://perma.cc/Z88D-QD6G.
Within two weeks, Weinstein was fired from his studio and resigned from the
board.
2
Harvey Weinstein ‘Steps Down from Company Board’, BBC NEWS (Oct. 18, 2017), https://perma.
cc/K8SY-9AY3.
Partly as a reaction to these events, women and others across the United
States began using the hashtag “#MeToo” to share their own experiences with
sexual harassment and abuse.
3
More Than 12M “Me Too” Facebook Posts, Comments, Reactions in 24 Hours, CBS NEWS (Oct.
17, 2017), https://perma.cc/A8RV-3X7S. The phrase “Me Too” was first popularized in 2007 by Tarana
Burke, an activist hoping to spread empathy and connect with survivors of sexual violence. Alanna
Vagianos, The ‘Me Too’ Campaign Was Created By a Black Woman 10 Years Ago, HUFFPOST (Oct. 17,
2017), https://perma.cc/S6TV-3JB8.
The #MeToo Movement garnered enough atten-
tion that at least 200 powerful and famous men including Matt Lauer, Charlie
Rose, Russell Simmons, Al Franken, Louis C.K., and Kevin Spacey, have been
fired or forced to resign following at least 920 allegations that “one of these men
subjected them to sexual misconduct.”
4
Audrey Carlsen, Maya Salam, Claire Cain Miller, Denise Lu, Ash Ngu, Jugal K. Patel, & Zach
Wichter, #MeToo Brought Down 201 Powerful Men. Nearly Half of Their Replacements Are Women.,
N.Y. TIMES (Oct. 29, 2018), https://perma.cc/4L7C-AX8H.
While these allegations are now receiving unprecedented attention, they are
not new. Sexual harassment in the workplace often comes in various forms,
including sexual assault, sexualized attention, demeaning comments, and authen-
tic or mock sexual advances from coworkers or supervisors.
5
Although women
continue to make up the vast majority of individuals who file sexual harassment
1.
2.
3.
4.
5. See generally Reva B. Siegel, Introduction: A Short History of Sexual Harassment, in DIRECTIONS
IN SEXUAL HARASSMENT LAW (Catharine A. MacKinnon & Reva B. Siegel eds., 2004) (explaining the
history of the oppression and inequality that women experience at work, from slavery to the modern
Information Age. The author argues that women have experienced unequal power dynamics at work for
centuries, which has led to modern harassment ranging from sexual assault to derogatory comments
about the female anatomy).
484 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:483
complaints with the U.S. Equal Employment Opportunity Commission (EEOC),
6
Charges Alleging Sex-Based Harassment (Charges Filed with EEOC) FY 2010–FY 2022, U.S.
EQUAL EMP. OPPORTUNITY COMM’N, https://perma.cc/T44H-L6YL. In 2022, 16.39% of 6,201 charges
alleging sexual harassment were filed by males. Id. The EEOC website defines sexual harassment as
“unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a
sexual nature.” Sexual Harassment, U.S. EQUAL EMP. OPPORTUNITY COMM’N, https://perma.cc/395Q-
759S.
they are not the only ones that experience sexual harassment.
7
See infra Part VII(E); see also Robin Bailey, Many Men are Sexually Harassed in the Workplace
—So Why Aren’t They Speaking Out?, CONVERSATION (Mar. 13, 2018), https://perma.cc/H7WN-SWC8
(summarizing research into commonalities between men who experience sexual harassment).
To combat workplace harassment, Congress enacted Title VII of the Civil
Rights Act of 1964, which implemented the first legal recognition of, and protec-
tion from, sexual harassment outside of tort law.
8
Section 703(a) of Title VII
states that:
It shall be an unlawful employment practice for an employer– (1) to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color, reli-
gion, sex, or national origin; or (2) to limit, segregate, or classify his
employees or applicants for employment in any way which would deprive
or tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual’s
race, color, religion, sex, or national origin.
9
Thus, Title VII created both a legal cause of action for sexual harassment in
the workplace,
10
as well as an anti-harassment policy meant “to encourage infor-
mal conciliation and to foster voluntary compliance.”
11
Congress’ policy objec-
tive was affirmed in Bostock v. Clayton County, when the Supreme Court held
that sex discrimination under Title VII exists where an individual is fired on the
basis of their sexual orientation or gender identity.
12
Congress continues to work
to ensure that workplaces are free from discrimination by updating employment
discrimination law.
13
See Pending Legislation That May Impact EEOC, U.S. EQUAL EMP. OPPORTUNITY COMM’N,
https://perma.cc/BV2J-X952; BE HEARD in the Workplace Act, S.3219, 118th Cong. (2024), https://
perma.cc/7L5E-ZSQV. See also Kiara Alfonseca, Equality Act Reintroduced in Congress to Protect
LGBTQþCommunity, ABC NEWS (June 21, 2023), https://perma.cc/JC8Q-NZLG.
For instance, the Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act
14
became law in 2022.
15
This law banned
“compulsory, pre-dispute arbitration clauses in cases involving allegations of
6.
7.
8. See 42 U.S.C.A. § 2000e-2 (West, Westlaw, Current through Pub. L. 118-106).
9. Id. at § 2000e-2(a).
10. See id.
12. See Bostock v. Clayton Cnty., 590 U.S. 683 (2020).
13.
14. 9 U.S.C.A. §§ 401-02 (West, Westlaw Current through Pub. L. 118-106.)
15. Id.
2025] EMPLOYMENT DISCRIMINATION 485
