Sexual Harassment Offensive Conduct Continues

• Published date: 20 July 2023
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment
• Law Firm: Thompson Coburn LLP
• Author: Mr Art Silbergeld and Aya Elalami

When Brian Cranston stuffed a pillow around his waist to play LBJ in "All the Way" on Broadway, the script about President Johnson's jawboning to get Title VII of the 1964 Civil Rights Act passed into law only told some of the legislative history. Another actor did play the Congressman from Virginia, Mr. Smith, who inserted "sex" as a protected class, expecting that none of his House colleagues would vote to pass the legislation which he ardently opposed. But no one played Eleanor Roosevelt, then on the President's Commission on the Status of Wo-men, who opposed including "sex" because she feared the Virginia Congressman was right and the protections accorded to persons in other categories would be lost. And no one played Rep. Green of Oregon, who opined that it would be discrimination for a college seeking to hire a dean of women or a family seeking a nurse for an elderly parent to only advertise for women.

All three were wrong: the legislation passed.

Despite derision from some of his former Senate colleagues, LBJ happily signed it. Title VII became the law, but with no discussion at all about what Congress intended the term "sex" to include. Although difficult today to grasp, it took 23 years before the U.S. Supreme Court would conclude that sexual harassment was a form of gender discrimination. In Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986), the Court acknowledged that harassment is a form of sex discrimination, concluding that both quid quo pro harassment and conduct that creates a hostile, offensive, and intimidating workplace environment are actionable. The Court directed that employers could defend against such claims by having a policy against it, investigating claims, and when allegations were substantiated, taking immediate and appropriate corrective action. Meritor Savings held that an employer may be liable if it knew or should have known of the unlawful conduct and failed to take steps to prevent the conduct from recurring.

As the 60th anniversary of Title VII approaches, it is worth looking back at the judicial standards that have evolved, California's efforts to end prohibited conduct, and at recent cases involving nuanced circumstances and other decisions demonstrating that hostile and offensive behavior persists.

An employee can show a hostile working environment simply by demonstrating that the harasser's conduct was sufficiently severe or pervasive, without offering evidence of psychological damage. Harris v. Forklift Sys....