Title VII and the Fight Against Sexual Harassment at Work

A key part of the Civil Rights Act of 1964 is Title VII, a federal statute that makes it illegal for an employer to discriminate on the basis of sex. Yet approximately 60 percent of employees reported experiencing unwanted sexual attention or coercion at their workplace in recent years. 

Although the U.S. Congress intended Title VII to be a sweeping prohibition on employment discrimination, not every type of discrimination that employees can experience immediately fell under Title VII. Workplace sexual harassment was one such exclusion. 

Despite the fact that sexual harassment protections are now considered essential in discussions of employment discrimination, workplace sexual harassment was not recognized as a violation of Title VII until 1986, when the Supreme Court issued its opinion in Meritor Savings Bank v. Vinson. 

In a unanimous decision, the court held that continuous unwanted sexual advances and coercion fall under Title VII’s prohibition of discrimination on the basis of sex. Violations need not be specific employment actions, such as firing or demotion, but can also include behavior or conduct that creates a hostile work atmosphere. 

The court also held that the primary question in determining whether an employee experienced sexual harassment should be whether the conduct toward the employee was unwelcome. The inquiry should not solely assess whether the employee’s participation in the encounter or interaction was voluntary.

The current field of sexual harassment law builds upon the legacy of Meritor. Although sexual harassment remains a pervasive issue, Meritor created a viable path for employees who experience sexual harassment to seek redress under Title VII. The Equal Employment Opportunity Commission’s Office of General Counsel, for example, reported that 59.5 percent of its merit suit filings contained claims filed under Title VII in 2024. 

The rise of the #MeToo movement in the late 2010s simultaneously shed light on Meritor’s legacy and societal shortcomings in workplace sexual harassment prevention. Some scholars, including Rebecca Hanner White, former dean of the University of Georgia School of Law, contend that the growing awareness of workplace sexual harassment may lead courts to become more willing to support a victim’s claim that a harm occurred, even if the conduct would not fall under the current legal definition of sexual harassment. A more flexible approach might allow for employees who experienced unwanted physical contact or sexualized comments, for instance, to bring a claim in federal court.

Alongside the broader #MeToo movement, the Equal Employment Opportunity Commission’s settlement with The Weinstein Company in 2020 further demonstrated how, under Title VII, employers can be held accountable for failing to protect employees from sexual harassment and assault. The company declined to investigate harassment allegations against Harvey Weinstein, despite many scholars and legal experts’ contention that failing to do so constituted a Title VII violation. 

In this week’s Saturday Seminar, scholars consider Title VII’s role in preventing sexual harassment today and where regulatory bodies may expand their power. 

• Despite criticisms that strict criteria for sex discrimination are inadequate in several ways, Jessica A. Clark of the University of Southern California Gould School of Law argues that critics should not overlook successful uses of formalist tests to challenge discriminatory policies in an article in the Virginia Law Review. Clark acknowledges that formalist tests tend not to capture all instances of sex discrimination, especially in cases where a person is bisexual or nonbinary. Under the current antidiscrimination framework, Clark explains, courts often choose which test to apply, a practice that can be outcome determinative. Clark advocates procedural changes, including allowing jurors to resolve indeterminacies, as a way to resolve the problems caused by formalist tests. 
• Court precedent requiring plaintiffs in sexual harassment lawsuits to prove that they experienced an adverse employment action are not supported by the text of Title VII, argues Kenneth R. Davis of Fordham University’s Gabelli School of Business in an article in the Harvard Journal on Legislation. Davis contends that although Title VII provides examples of adverse employment actions, the phrase “or otherwise discriminate” was intended to include other forms of discrimination based on sex. To require plaintiffs to prove an adverse employment action undermines the goal of Title VII to eliminate all employment discrimination, Davis explains. Davis urges federal courts to remove such requirements from Title VII tests, as some circuits have done.  
• In an article in the Journal of Comparative Policy Analysis Jody Heymann and several coauthors from the WORLD Policy Analysis Center analyze how sexual harassment laws in the workforce have changed in 192 countries since the #MeToo movement. Heymann and her coauthors find that in the past five years, 13 countries have made sexual harassment illegal, but also that such harassment remains legal in a quarter of high- and medium-income countries and a third of low-income countries. The Heymann team argues that these gaps must be addressed and that states must take steps to ensure adequate enforcement of the laws. Finally, they contend that ideal laws would include legal obligations to prevent harassment before it occurs.
• Sexual harassment could best be addressed by expanding the scope of vicarious liability argues Kassandra Fotiadis in a student note in the Michigan Law Review. Fotiadis contends that one of the best ways to prevent workplace sexual harassment is to allow victims to bring claims against the perpetrator’s employer. She proposes that the “Aided-in-Accomplishing” exception from the Second Restatement of Agency should be applied to all sexual harassment claims. This standard would hold employers accountable if the plaintiff proved that the defendant’s employee perpetrated sexual harassment against the plaintiff and if the perpetrator was aided by virtue of being employed by the defendant. Fotiadis argues that this standard would greatly expand vicarious liability for sexual harassment and better protect women.
• Courts are split on whether school employees may raise sexual harassment claims under Title IX, which prohibits sex-based discrimination in federally funded education programs, Jared P. Cole of the Congressional Research Service observes in a report. Cole points out several distinctions between Title VII and Title IX. Title VII relies on Congress’ power to regulate commerce. Cole also notes that Title VII “contains an exhaustion requirement” and compensates non-monetary harms. Title IX, however, stems from Congress’s spending power and only compensates monetary losses, such as lost wages. Cole concludes that Congress has several options to protect school employees under Title IX, including amending Title IX to cover employment discrimination in certain cases, as it did previously with pregnancy discrimination. 
• In a Yale Law Journal note, Alexandra R. Johnson of the ACLU contends that although student-employees have both Title VII and Title IX protections, courts’ interpretations of those statutes can fail student-employees. Johnson argues that some courts wrongly hold that student-employees are only either students or employees. The Sixth Circuit, however, explains that “the two roles are not mutually exclusive.” Johnson advocates the use of Title IX for students with jobs that do not overlap with their studies, such as a law school research assistant for a professor of courses the student is not enrolled in. Title VII and Title IX are underutilized and require more rigorous application by courts without regard for the other relationships student-employees hold with their institution, Johnson concludes.