Guest Contributor: Sandra F. Sperino
The #metoo movement has increased the focus on sexual harassment cases and how courts analyze them. One way to increase the reach of harassment law is hidden in plain sight: the text of Title VII itself.
Title VII, the federal law that prohibits harassment based on race, sex, and other protected traits, has two main provisions. Under Title VII’s first provision, it is an unlawful employment practice for an employer to do the following:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
Courts characterize this first provision as describing disparate treatment claims. And, it is this provision that courts commonly look to when thinking about harassment law. However, courts tend not to look at the actual text of the statute. Instead, they focus on whether the harassment is severe or pervasive. “Severe or pervasive” is a term of art created by the Supreme Court. These words are not actually in Title VII. If you look at other contexts such as labor law or arbitration agreements, there is a large body of law that defines the words “terms or conditions” broadly.
An example is helpful. In harassment cases, some courts have dismissed worker’s cases when a supervisor touches a worker inappropriately once or twice. Some courts reason that this is not severe or pervasive enough to be harassment. However, we can see that terms or conditions of employment are broader than this limited notion of severe or pervasive through an example.
Let’s say a worker signed an arbitration agreement, in which she agreed to arbitrate any claim related to the terms or conditions of her employment. The worker’s supervisor touches her once inappropriately and she files a claim. A court would interpret the arbitration agreement to mean that the worker could not file her claim in court. It would say that this claim relates to the terms or conditions of employment. By using arbitration and labor law, workers can argue for a broader conception of harassment.
There is another part of the text that is helpful. Courts have ignored Title VII’s second provision when thinking about harassment jurisprudence. Under Title VII’s second provision, it is unlawful for an employer to do the following:
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
The courts have not looked to the second provision when thinking about harassment. This is a mistake. There is nothing within the text of Title VII that limits harassment to the first provision.
And, the second provision opens up new possibilities for discrimination law. When a supervisor harasses an employee in the workplace because of a protected trait this deprives or tends to deprive the employee of work opportunities or does or might otherwise adversely affect his or her work. This is because a worker who faces harassment is now worried about whether more harassment will happen and must consider whether to confront the harasser or report the harasser, both of which might result in retaliation. Additionally, this second provision allows for proof of structural harassment and discrimination, where a web of practices and individual behavior limit advancement opportunities based on sex or race.
Professor Sandra F. Sperino is an Associate Professor at the University of Cincinnati College of Law. She has co-written several books including: Unequal: How America’s Courts Undermine Discrimination Law, McDonnell Douglas: The Most Important Case in Employment Discrimination Law, and Employment Discrimination: A Context and Practice Casebook.