Kara Sears
Sexual harassment laws have evolved over time, with the groundwork for federal sexual harassment laws in the United States being laid by the Civil Rights Act of 1964, which prohibited employment discrimination based on race, sex, colour, national origin, and religion. However, it was not until the 1970s and 1980s that sexual harassment was codified in U.S. law, following a series of landmark cases, with legal activist Catharine MacKinnon credited with creating the laws surrounding sexual harassment with her 1979 book Sexual Harassment of Working Women. Today, the U.S. Equal Employment Opportunity Commission (EEOC) defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature, with two types of sexual harassment recognised by federal law: quid pro quo and hostile work environment.
| Characteristics | Values |
|---|---|
| Country | United States |
| Federal Law | Two types of sexual harassment are recognized: quid pro quo and hostile work environment |
| State Laws | New York, California, Illinois, Connecticut, Delaware, and Maine have passed laws mandating sexual harassment training for employers |
| First Federal Sexual Harassment Law | The Civil Rights Act of 1964, which prohibited employment discrimination based on race, sex, color, national origin, or religion |
| Landmark Supreme Court Case | Meritor Savings Bank v. Vinson, which ruled that speech itself can create a hostile environment that violates the law |
| Legal Activist | Catharine MacKinnon, who wrote the book "Sexual Harassment of Working Women" in 1979 |
| Term Coined By | Cornell University activists in 1975 |
| First Sexual Harassment Cases | Williams v. Saxbe (1976) and Paulette L. Barnes, Appellant, v. Douglas M. Costle (1977) |
| First Federal Appeals Court Case | Bundy v. Jackson (1981) |
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What You'll Learn
The US Civil Rights Act of 1964
The inclusion of sex as a protected category in Title VII was the result of an amendment offered by Congressman Howard Smith, a staunch opponent of civil rights. Despite his support for an Equal Rights Amendment for women, Smith's amendment was likely tactical, aiming to prevent the bill's passage. Nevertheless, this amendment paved the way for future advocacy and legal developments in addressing sexual harassment.
The National Organization for Women (NOW), formed in October 1966, promptly urged President Johnson to uphold the promise of equal employment opportunities for women enshrined in Title VII. They highlighted the omission of explicit references to sex in the legislation and expressed disappointment in the Equal Employment Opportunity Commission's (EEOC) apparent reluctance to enforce this aspect of the law.
In conclusion, the US Civil Rights Act of 1964, particularly Title VII, played a pivotal role in establishing the legal framework for combating sexual harassment and promoting equal employment opportunities. While the Act itself did not explicitly mention "sexual harassment," it set in motion a series of legal and social developments that led to the recognition and redressal of this pervasive issue.
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Legal activist, Catharine MacKinnon
Legal activist, lawyer, teacher, writer, and feminist Catharine MacKinnon is generally credited with creating the laws surrounding sexual harassment in the United States. MacKinnon, born on October 7, 1946, is the Elizabeth A. Long Professor of Law at the University of Michigan Law School and the James Barr Ames Visiting Professor of Law at Harvard Law School. She has also visited and taught at NYU, the University of Western Australia, the University of San Diego, Hebrew University, Columbia Law School, the University of Chicago, the University of Basel, Yale Law School, Osgoode Hall Law School, UCLA School of Law, and Stanford Law School.
MacKinnon is an expert on international law, constitutional law, political and legal theory, and jurisprudence. Her work focuses on women's rights and sexual abuse and exploitation, including sexual harassment, rape, prostitution, sex trafficking, and pornography. She is the author of over a dozen books, including Sexual Harassment of Working Women: A Case of Sex Discrimination (1979), Feminism Unmodified (1987), Toward a Feminist Theory of the State (1989), and Are Women Human? (2006).
In her 1979 book, MacKinnon created the legal claim for sexual harassment as a form of sex discrimination under Title VII of the Civil Rights Act of 1964 and any other sex-discrimination prohibition. She also conceived of the legal claim for sexual harassment as sex discrimination in education under Title IX, which was established through litigation brought by Yale undergraduates in Alexander v. Yale. MacKinnon's book provided the first in-depth legal analysis of sexual harassment, distinguishing between "quid pro quo" sexual harassment and "conditions of work" or hostile environment harassment. She argued that sexual harassment was sex discrimination because it expressed and reinforced women's social inequality to men.
MacKinnon's work built on the groundwork laid by the Civil Rights Act of 1964, which made it illegal to discriminate on the basis of race, colour, religion, sex, or national origin. It took many years for U.S. 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 U.S. Supreme Court did not hear a case until a decade later. MacKinnon's work was instrumental in shaping the legal understanding of sexual harassment and paving the way for future legislation and protections for workers.
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The US Supreme Court
The Civil Rights Act of 1964 prohibited employment discrimination based on race, colour, sex, religion, or national origin. This was commonly referred to as "Title VII", as this was the section of the Act covering employment. While this legislation laid the groundwork for future sexual harassment laws, it did not initially address this issue directly.
In the mid-1970s, the first sexual harassment cases were brought to US courts. Paulette Barnes, an African American woman, lost her job for refusing the advances of her male supervisor. She brought the case of Barnes v. Train in 1974, which was dismissed but later appealed and became Barnes v. Costle in 1977. In 1976, Williams v. Saxbe was the first case to establish that quid pro quo sexual harassment was a form of sex discrimination under the Civil Rights Act of 1964.
In 1986, the Supreme Court upheld these early cases with Meritor Savings Bank v. Vinson, a landmark case that ruled "severe or pervasive" sexual harassment of an employee by their supervisor violated federal law. The Court also ruled that employers are responsible for taking action if they are aware of sexual harassment occurring in the workplace. This case was based on the complaints of Mechelle Vinson, a bank employee whose boss intimidated her into having sex with him.
In 1991, law professor Anita Hill testified against Supreme Court nominee Clarence Thomas, alleging that he had sexually harassed her when they worked together. Although Thomas was confirmed, Hill's actions encouraged more women to speak out, and that year the Civil Rights Act was amended to allow victims a jury trial and the right to collect compensatory and punitive damages.
In 1998, the Supreme Court ruled that same-sex harassment was also unlawful in the workplace. This ruling solidified the understanding that gender and sexual orientation do not determine whether one is the perpetrator or victim of harassment.
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The Equality Act, 2010
The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. It replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations. It sets out the different ways in which it is unlawful to treat someone. The Act merged over 116 separate pieces of legislation under one act that protects the rights of citizens and promotes equality for all people.
The Equality Act provisions that came into force on 1 October 2010 include the basic framework of protection against direct and indirect discrimination, harassment, and victimisation in services and public functions, work, education, associations, and transport. The Act also changed the definition of gender reassignment by removing the requirement for medical supervision. It provides protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic.
The Act introduced the concept of "discrimination arising from disability" to replace protection under previous legislation lost as a result of a legal judgment. It also harmonised the thresholds for the duty to make reasonable adjustments for disabled people. The Act also introduced new powers for employment tribunals to make recommendations that benefit the wider workforce.
The Equality Act 2010 also includes provisions that ban age discrimination against adults in the provision of services and public functions. The ban came into force on 1 October 2012 and it is now unlawful to discriminate on the basis of age unless the practice is covered by an exception from the ban or good reason can be shown for the differential treatment. The ban on age discrimination is designed to ensure that the new law prohibits only harmful treatment that results in genuinely unfair discrimination because of age.
The Equality Act 2010 defines the different types of harassment, including examples of harassment at work. Harassment and bullying are often confused. Bullying behaviour can be harassment if it meets the definitions provided by the Act. It's possible that serious harassment could also be a hate crime. This type of harassment is unwanted behaviour related to any of the following protected characteristics: sex, sexual orientation, race, religion or belief, age, disability, gender reassignment, marriage and civil partnership, and pregnancy and maternity.
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State-specific laws
In the United States, the groundwork for establishing federal sexual harassment laws and making sexual harassment in the workplace illegal was laid by the Civil Rights Act of 1964, passed by Congress and signed into law by President Lyndon B. Johnson. This Act prohibited discrimination based on race, colour, religion, sex, or national origin.
However, it took several years for US courts and legislation to define sexual harassment and create laws to protect workers. The first sexual harassment cases were brought to court in the mid-1970s, and the term "`sexual harassment'" was coined by Cornell University activists in 1975.
While federal laws provide a baseline, many states have their own specific laws and training requirements regarding sexual harassment. Here are some examples of state-specific laws:
California
California has the Fair Employment and Housing Act (FEHA), which protects employees from sexual harassment, including independent contractors and unpaid interns. California law allows harassers to be held personally responsible in court, which is not possible under federal law. Additionally, California has no cap on punitive and compensatory damages in court, while federal law has caps based on the number of employees. California also mandates sexual harassment prevention training for private employers and requires supervisors to undergo mandatory sexual harassment training, including topics such as sexual orientation and gender identity.
Arizona
The Arizona Civil Rights Act protects employees from sexual harassment with provisions similar to federal law (Title VII of the Civil Rights Act of 1964). Arizona courts often refer to federal precedent when deciding cases. Arizona also protects state government employees based on sexual orientation, and employees have the right to file a claim with the Arizona Civil Rights Division or the Equal Employment Opportunity Commission (EEOC).
Colorado
The Colorado Anti-Discrimination Act prohibits sexual harassment in the state's workplaces, applying to employers with one or more employees. Colorado law protects all public and private employees from harassment and discrimination based on sexual orientation or gender identity, with an exemption for religious organizations. Employees can file a complaint with the Colorado Civil Rights Commission or the EEOC.
Connecticut
The Connecticut Fair Employment Practices Act (CFEPA) prohibits sexual harassment in the state's workplaces and requires two hours of mandatory training for supervisors, with suggested refresher training every three years. Connecticut also protects unpaid interns by law, unlike federal law, which only protects unpaid interns if they receive compensation.
Alaska
Alaska protects state government employees from discrimination and harassment based on sexual orientation. While the EEOC interprets Title VII to protect LGBT employees, federal law does not specifically name sexual orientation as a protected group. Employees in Alaska workplaces should be aware of their right to file a claim with the Alaska State Commission for Human Rights.
Delaware, Illinois, Maine, and New York
These states have similar laws requiring private employers to provide sexual harassment prevention training to their employees. The specifics vary, with Illinois mandating training for all employers regardless of business size, while Delaware's law applies to employers with more than 50 employees.
While these are just a few examples, each state in the US has its own unique set of laws and regulations regarding sexual harassment, and it is essential to refer to the specific state's legislation for comprehensive information.
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Frequently asked questions
Legal activist Catharine MacKinnon is generally credited with creating the laws surrounding sexual harassment in the United States with her 1979 book, "Sexual Harassment of Working Women".
The Civil Rights Act of 1964 is considered the groundwork for establishing federal sexual harassment laws in the United States. It made it illegal to discriminate on the basis of race, colour, religion, sex, or national origin.
Bundy v. Jackson (1981) was the first federal appeals court case to hold that workplace sexual harassment was employment discrimination.
The two types of sexual harassment recognized by federal law in the United States are quid pro quo and hostile work environment.
A hostile work environment is created when an employee's work environment is made intimidating, hostile, or offensive due to unwelcome sexual conduct, and the conduct unreasonably interferes with the employee's work performance.
