STATE REGULATION OF SEXUAL HARASSMENT
EDITED BY ROB HOPKIRK, ALISON HAGANI, TAYLOR-RYAN NEDD,
SERENA DINESHKUMAR, PAYTON GANNON, AND MELL CHHOY
I. INTRODUCTION ........................................ 1044
II. BASIC ELEMENTS OF SEXUAL HARASSMENT LAWS ............... 1048
A. QUID PRO QUO.................................... 1048
B. HOSTILE WORK ENVIRONMENT ......................... 1049
III. EEOC & OTHER FEDERAL LAWS ........................... 1050
A. TITLE VII ....................................... 1050
B. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ............ 1051
C. FAIR EMPLOYMENT PRACTICE AGENCIES .................. 1052
D. RELATED FEDERAL LAWS............................. 1052
E. CURRENT POLICIES ................................. 1053
IV. STATE IMPLEMENTATION AND EXPANSION OF SEXUAL HARASSMENT
LAWS .............................................. 1054
A. EXPANDED CLASS PROTECTIONS ........................ 1055
B. ADDITIONAL ADMINISTRATIVE REQUIREMENTS .............. 1059
1. Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
2. Posting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
C. EMPLOYER BEST PRACTICES AND PROACTIVE PREVENTION ...... 1064
D. COMMON LAW TORT PROTECTION ....................... 1065
V. VARYING STATE AND FEDERAL INTERPRETATIONS OF THE ELEMENTS
OF A SEXUAL HARASSMENT CLAIM .......................... 1067
A. CONDUCT OF A SEXUAL NATURE........................ 1067
B. CONDUCT BASED ON SEX ............................. 1069
C. CONDUCT OF A SEVERE AND PERVASIVE NATURE ............ 1070
VI. EMPLOYER LIABILITY.................................... 1071
A. IMPUTABILITY OF THE EMPLOYER ....................... 1071
B. EMPLOYER DEFENSES ............................... 1072
C. DEFINITION OF “SUPERVISOR”.......................... 1075
VII. MODERN DEVELOPMENTS ................................. 1076
A. THE “BECAUSE OF” GENDER TEST ...................... 1077
B. THE CONDUCT-BASED TEST ........................... 1077
C. HOSTILITY TOWARDS A SINGLE SEX ..................... 1078
D. HARASSMENT BASED ON STEREOTYPES ................... 1079
E. SEXUAL HARASSMENT OF TRANSGENDER PERSONS ........... 1079
VIII. SEXUAL HARASSMENT IN THE MEDIA......................... 1080
1043
IX. CONCLUSION.......................................... 1084
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, 10:47 AM), 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. 17, 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, 6:26 PM), 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, 1:44 PM), 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
And though women
continue to file the vast majority of sexual harassment 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 2018, 15.9% of 7,609 charges
alleging sexual harassment were filed by males. 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.
women are not the only
individuals who 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?, THE CONVERSATION (Mar. 13, 2018, 7:17AM), https://perma.cc/
H7WN-SWC8 (summarizing research into commonalities between men who experience sexual
harassment).
1.
2.
3.
4.
5. Reva B. Siegel, Introduction: A Short History of Sexual Harassment, in DIRECTIONS IN SEXUAL
HARASSMENT LAW 22 (Catharine A. MacKinnon & Reva B. Siegel eds., 2004). This introduction
expands on 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.
6.
7.
1044 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 25:1043
To combat harassment at work, Congress enacted Title VII of the Civil Rights
Act of 1964, which implemented the first legal recognition of, and protection
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 dis-
criminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such indi-
vidual’s race, color, religion, 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-
that sexual 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 employ-
ment 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, 117th Cong. (2021), https://
perma.cc/26BN-XL8R. See also Kiara Alfonseca, Equality Act Reintroduced in Congress to Protect
LGBTQþCommunity, ABC NEWS (Jun. 21, 2023, 01:36 PM), https://perma.cc/JC8Q-NZLG.
For example, the BE HEARD in the Workplace Act
of 2021 would prohibit employers from entering into contracts or agreements
with workers that contain non-disparagement or non-disclosure clauses, prohibit
and post-dispute arbitration agreements, and it requires the EEOC to provide
specified training and resource materials with regard to prohibited discrimination
and harassment in employment.
14
Congress is also considering the EMPOWER
Act, Part 1 of which would prohibit non-disclosure clauses regarding sex harass-
ment, establish a confidential tip line for workplace harassment, require disclo-
sure of claims to the SEC, and establish federally-recommended materials for use
in workplace anti-harassment training.
15
Part 2 of the EMPOWER Act would
8. See 42 U.S.C. § 2000e-2.
9. Id. § 2000e-2(a).
10. See id.
13.
14. S.3219, 117th Cong.Title III(2021–2022).
15. EMPOWER Act, Part I, S.575, 116th Cong. §§ 4–7 (2019–2020).
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