In the October 1993 Term, the Supreme Court of the United States decided Harris v. Forklift Systems, Inc., its second major opportunity to define sexual harassment law. This article addresses Harris’ effect on the standard of proof required to establish a sexually hostile work environment and discusses its answers to other disputes in the law.
Harris resolved a conflict between the circuits on the standards required to prove a hostile work environment under Title VII of the Civil Rights Act of 1964. Some circuits had adopted more lenient evidentiary standards, in keeping with Title VII’s remedial purpose. Others imposed stricter standards of proof. As this article will explain, while these stricter standards were usually adopted because of their purported neutrality, close examination showed that they masked historic bias, trivialized discrimination, or underestimated the plaintiff’s injury by evaluating offensive con-duct out of the context in which it occurred.
Prior to Harris, three general themes characterized the circuits’ debate about the diverging law. The first concerned the threshold of harm from sex-based conduct. Some courts set a high threshold that permitted substantial sexual conduct in the workplace. One version of this test ignored the volume of sexual conduct unless it resulted in actual psychological in-jury to the plaintiff. Another maintained that a reasonable person would expect some sexual conduct in the workplace, particularly if the conduct was tolerated in larger society or if the workplace had been historically accustomed to the behavior. Other courts proposed a competing test that simply looked to the frequency and severity of the conduct, regardless of societal standards or the nature of the plaintiff’s injury.
A second theme centered on the perspective from which conduct was to be evaluated. How much weight should be given to the victim’s subjective impression? Should the jury assess hostile sexual conduct from the perspective of a reasonable man, a reasonable woman, or a hypothetical gender-neutral person-and how would a jury determine the view of a gender-neutral person? Should the jury view the conduct in context or in the abstract?
A third theme dealt with the First Amendment. Hostile conduct often involves symbolic content that might be protected from government control. Since the harm may be gauged as much by the victim’s reaction as by any other means, many questioned whether resting a finding of hostile environment on a victim’s interpretation of speech violates the First Amendment. In addition, even if Title VII may address hostile environment for liability, the question remains whether a court can order a remedy.This article addresses these themes when discussing Harris’ impact on the selection and administration of evidence allowed to prove the existence of a sexually hostile work environment. An explanation of the appropriate, post-Harris judicial response to problems of proof in future hostile environment cases demands a thorough review of the caselaw and doctrine. Part I of this article examines the foundations and history of the hostile work environment claim. Part II illuminates the issues, facts, and holdings in Harris and the public policy considerations bearing on the Court’s deci-sion, in order to survey issues that Harris resolved and left unresolved. Finally, Part III analyzes the kind of evidence available in hostile environment claims and proposes new ways to weigh this evidence to illustrate the appropriate standards.
I draw several conclusions. Harris, although basically a correct reading of Title VII, resolved only the narrow question of whether the plaintiff had to prove psychological injury in order to prevail. It provided only general guidance as to the remaining proof required and failed to address other evidentiary obstacles to the plaintiff. As a result, the remaining proof requirements that hinder the plaintiff remain largely unrecognized and un-challenged in the judicial analysis. This article seeks to identify these burdensome requirements, discuss why they are inappropriate, and offer suggestions to eliminate them. The discussion addresses the supposed differences in perspective of men and women and the intersection of hostile work environment claims and First Amendment symbolic-speech doctrine and why these concerns do not justify the use of burdensome requirements of proof for the plaintiff. In conclusion, this article returns to outline the general evidentiary issues for proof of a hostile work environment and how these may be met post-Harris.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
A transgender student's expression of her gender identity, including through the use of gender consistent bathrooms, is First Amendment protected speech,
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.