It Took More than Twenty Years to Get Nationwide Title VII Protection for Victims of Sexual Harassment

Lyndon JohnsonAnti-discrimination statutes, which cover New York City at the federal, state, and local levels, treat sexual harassment as a type of prohibited sex discrimination. As of 2017, this is a relatively well-established legal principle, but it took time to get to this point. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on several factors, including sex. This did not expressly include sexual harassment until the U.S. Supreme Court ruled on this type of dispute 22 years later. The inclusion of sex as a protected class under Title VII was also never a foregone conclusion. Numerous legal scholars have noted that the addition of sex to Title VII began as a “joke” in the House of Representatives, intended as an effort to prevent the bill’s passage. Fortunately for future generations of Americans, that effort failed.

Title VII’s protections against sex discrimination, found in 42 U.S.C. § 2000e-2, are unique within the Civil Rights Act itself. In addition to sex, this provision prohibits discrimination on the basis of race, color, religion, and national origin. The other well-known provisions of the statute do not include sex. Title II, for example, prohibits discrimination in “public accommodations” on the basis of “race, color, religion, or national origin.” Id. at § 2000a(a). Title III addresses discrimination in access to public facilities on the basis of these four categories. Id. at § 2000b(a). Title VI deals with discrimination in federally assisted programs on the basis of race, color, or national origin—but not sex or religion. Id. at § 2000d. How, then, did sex discrimination become part of Title VII?

Congress passed the Civil Rights Act on July 2, 1964, as Public Law 88-352, 78 Stat. 241. Only two states, Hawaii and Wisconsin, had passed laws against sex discrimination before this. Representative Howard W. Smith, a Democrat from Virginia and an outspoken opponent of civil rights legislation, reportedly added sex to Title VII as a “joke.” He apparently intended his addition to the bill to dissuade other representatives from voting for it. His scheme “backfired” on him “when the amendment was adopted on the floor of the House under the House five-minute rule.” Rabidue v. Osceola Refining Co., 584 F.Supp. 419, 428 n. 36 (E.D. Mich. 1984).

Numerous trial and appellate courts fairly quickly held that quid pro quo sexual harassment, in which a supervisor or manager conditions a person’s employment or the circumstances of their employment on some sort of sexual activity, violates Title VII. A question remained as to whether sexual harassment that creates a hostile work environment also violates the law, even without direct proof of negative employment actions like demotion or termination. Again, numerous lower courts reached this conclusion. See, e.g., Rabidue, 584 F.Supp. at 428-29; Bundy v. Jackson, 641 F.2d 934, 948 (D.C. Cir. 1981). The Supreme Court affirmed this view in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

The skilled and experienced gender discrimination attorneys at Phillips & Associates advocate on behalf of New York City job applicants, employees, and former employees, helping them assert their rights in claims for sexual harassment under Title VII and state and local statutes. To schedule a free and confidential consultation to discuss your case, contact us today online or at (212) 248-7431.

More Blog Posts:

2016 Marks the 20th Anniversary of a Groundbreaking Wall Street Sexual Harassment Lawsuit, New York Employment Attorney Blog, October 24, 2016

Sexual Harassment Scandal Raises Possibility of Reform, New York Employment Attorney Blog, September 30, 2016

New Harvard University Policy Demonstrates a Different Side of Sexual Harassment Law, New York Employment Attorney Blog, April 8, 2015

Photo credit: Cecil Stoughton, White House Press Office (WHPO) [Public domain], via Wikimedia Commons.

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