Sexual Harassment: A Historical Legal Perspective

Sexual harassment has been a problem for centuries, but it was not until the 1970s that the modern legal understanding of it was developed. In the US, the Civil Rights Act of 1964 laid the groundwork for sexual harassment laws by making it illegal to discriminate on the basis of sex, among other things. However, it took many years for US courts and legislation to define sexual harassment and create laws to protect workers. The first sexual harassment cases were brought in the mid-1970s, and the term sexual harassment was coined in 1975 by activists at Cornell University. The US Supreme Court did not hear a sexual harassment case until a decade later.

The Civil Rights Act of 1964

The Act made it illegal to discriminate on the basis of race, colour, religion, sex, or national origin. It prohibited discrimination in public accommodations and federally funded programs, and strengthened the enforcement of voting rights and the desegregation of schools.

The Act was induced by massive resistance to desegregation and the murder of Medgar Evers. After President Kennedy's assassination in November 1963, President Lyndon Johnson pressed hard to secure the bill's passage the following year.

The Act also extended the Commission on Civil Rights, and established a Commission on Equal Employment Opportunity.

The Pregnancy Discrimination Act

The PDA prohibits employers with a minimum of 15 employees from refusing to hire a woman because of pregnancy, firing or forcing a woman to leave her position because of pregnancy, or taking away certain benefits such as credit for previous years worked, accrued retirement benefits, or seniority due to maternity leave. Additionally, it is illegal to fire or refuse to hire a woman because she opted to terminate a pregnancy.

The Act also mandates that pregnant women be eligible for temporary job reassignment to easier duties if pregnancy makes her unable to perform her current duties. Employers must allow pregnant employees to work as long as they are able to perform their jobs and must treat pregnant employees who are unable to perform their responsibilities in the same way that they treat any other disabled employee. This may include implementing accommodations such as assigning different assignments or modified tasks, reducing the workload, or offering leave without pay.

Employers are prohibited from removing a pregnant employee from a position because they believe the work could pose a risk to the employee and the pregnancy. They may not require a pregnant employee who has been absent from work as a result of the pregnancy to remain on leave until the baby's birth. They also cannot establish rules that prevent an employee who has given birth from returning to work for a predetermined length of time after delivery.

Employers cannot single out pregnancy-related conditions for medical clearance procedures that are not required of other employees who are similar in their ability to work. For example, an employer can only require a pregnant employee on leave to provide a physician's note regarding their inability to work before starting leave or receiving sick/disability benefits if the same requirement applies to all other employees on medical leave.

Employers who allow temporarily disabled employees to take disability leave or leave without pay must extend the same opportunity to pregnant employees. They must hold the pregnant employee's job open for the same length of time that jobs are held open for other employees on sick or temporary disability leave not related to pregnancy.

Employers must provide health insurance coverage for pregnancy at a level and amount that is on par with the coverage made available for employees with medical issues not related to pregnancy. They are not mandated to provide health insurance benefits to cover the medical costs of terminated pregnancies except in cases where the life of the pregnant employee is endangered.

The Violence Against Women Act

The VAWA creates and supports comprehensive, cost-effective responses to domestic violence, sexual assault, dating violence, and stalking. Since its enactment, VAWA programs have dramatically improved federal, tribal, state, and local responses to these crimes. The Act provided $1.6 billion toward the investigation and prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress when prosecutors chose not to prosecute cases.

The VAWA has been reauthorized several times, with each reauthorization building on existing protections and programs to better meet the needs of survivors. The first reauthorization was in 2000, which created a much-needed legal assistance program for victims and included responses to dating violence and stalking. It also established new grant programs and strengthened federal law.

In 2005, the VAWA reauthorization produced new, holistic responses and programs to meet the emerging needs of survivors and communities, such as prevention, landmark housing protections for survivors, funding for rape crisis centers, and culturally and linguistically specific services.

The 2013 reauthorization enhanced access to safety and justice for Native women, immigrants, LGBTQ+ individuals, college students and youth, and public housing residents.

The VAWA Reauthorization Act of 2022 was signed by President Biden on March 15, 2022. This bipartisan VAWA reauthorization includes groundbreaking provisions to strengthen and modernize the law. The law provides survivors, local programs, and communities with much-needed resources for housing, legal assistance, alternatives to criminal responses, and prevention programming. It also includes new economic justice provisions and bolsters access for survivors of all genders by strengthening non-discrimination laws and creating an LGBTQ services program. The 2022 reauthorization also restores tribal jurisdiction, allowing tribes to hold non-Native perpetrators accountable, improves existing housing protections, and increases access to emergency and short-term housing.

The Civil Rights Act of 1991

The Act amended Title VII of the Civil Rights Act of 1964 by expanding the rights of women to sue and collect compensatory and punitive damages for sexual discrimination or harassment. It also allowed for the reasonable woman standard to be used in cases, which allowed for cases to be analysed from the perspective of the complainant and not the defendant.

• It prohibited all racial discrimination in the making and enforcement of contracts.
• It allowed for compensatory and punitive damages to be recovered in cases of intentional discrimination.
• It clarified provisions regarding disparate impact actions.
• It provided for damages in cases of intentional discrimination.
• It prohibited the discriminatory use of test scores.
• It clarified the prohibition against impermissible consideration of race, colour, religion, sex, or national origin in employment practices.
• It facilitated the prompt and orderly resolution of challenges to employment practices implementing litigated or consent judgments or orders.
• It protected extraterritorial employment.
• It established a Technical Assistance Training Institute to provide technical assistance and training regarding laws and regulations enforced by the Equal Employment Opportunity Commission (EEOC).
• It expanded the right to challenge discriminatory seniority systems.
• It authorised the awarding of expert fees.
• It provided for interest and extended the statute of limitations in actions against the federal government.
• It provided notice of the limitations period under the Age Discrimination in Employment Act of 1967.
• It established the Glass Ceiling Commission to study and prepare recommendations for eliminating artificial barriers to the advancement of women and minorities, and to increase their opportunities and developmental experiences to foster advancement to management and decision-making positions in business.
• It established the Office of Senate Fair Employment Practices to administer processes and implement programs for the Senate to heighten awareness of employee rights and prevent violations.
• It provided procedures to protect the right of Senate and other government employees to be free from discrimination based on race, colour, religion, sex, national origin, age, or disability.

The Speak Out Act

The Act makes certain nondisclosure and nondisparagement agreements unenforceable when they relate to sexual assault or sexual harassment disputes. It defines "nondisclosure" and "nondisparagement" agreements as any agreement or clause in an agreement that requires parties "not to disclose or discuss conduct, the existence of a settlement involving conduct, or information" related to the contract. It also includes any agreement that requires one or more parties to "not make a negative statement about another party that is related to the contract, agreement, or case."

The Act does not prohibit the use of these clauses but makes them unenforceable in disputes involving sexual harassment and sexual assault. It applies to any agreement between one or more parties, including employers and current, former, and prospective employees and independent contractors, as well as providers of goods and services and their customers.

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