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Rachel Ford, Blog Editor, University of Cincinnati Law Review
I. Introduction
Mechelle was hired at a bank.[1] During her time at the bank, Mechelle rapidly climbed the ranks.[2] However, throughout her four years at the bank, Mechelle had been subject to sexual harassment by her boss.[3] Her boss invited her out to dinner and suggested they go to a motel afterward to have sex.[4] Out of fear of losing her job, she agreed.[5] Thereafter, Mechelle’s boss commonly demanded sexual favors from her, sometimes even at the bank during work hours.[6] She complied.[7] Mechelle’s boss also repeatedly groped her in front of her coworkers and followed her to the bathroom on multiple occasions, where he forced himself on her.[8] Mechelle’s boss stopped when she told him she had a boyfriend.[9]
Reading this in 2021, it is clear that Mechelle was being sexually harassed by her boss; she was subject to a hostile work environment and potentially a quid pro quo. However, Mechelle’s case was not a certain victory when she brought suit in the late 1970s, and the federal district court actually ruled against her.[10] Yet, Mechelle’s case was resilient and eventually made its way up to the Supreme Court.[11] The Supreme Court agreed with Mechelle that she had experienced sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and, with guidance from the Equal Employment Opportunity Commission (“EEOC”), confirmed a new cause of action under the all-encompassing federal workplace anti-discrimination statute: the “hostile work environment” for sex discrimination cases.[12]
However, the Supreme Court announced this major win for workers with a major caveat: only hostile work environments where the sexual harassment is “severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive work environment’” are prohibited under Title VII.[13] This has become the ubiquitous standard for hostile work environment discrimination claims under Title VII, no matter what the employee’s protected class is.[14] The standard also applies to the American with Disabilities Act of 1990 (“ADA”) and the Age Discrimination in Employment Act of 1967 (“ADEA”).[15]
Because the Supreme Court imposed the “severe or pervasive” standard for harassment claims, employees must bear harsh harassment to have actionable claims under federal discrimination laws.[16] One in four Black employees reported to have experienced race discrimination in 2020.[17] According to Rutgers’ Center for Women and Work, up to 85% of women experienced sexual harassment in the workplace in 2019.[18] While social movements like #MeToo and Black Lives Matter have likely contributed to a greater societal perception of harassment and higher rates of harassment reports, a massive number of victims still have no actionable claims under federal discrimination statutes due to the “severe or pervasive standard.” Before bringing suit, an employee must ask herself, “Have I been harassed enough to reach the ‘severe or pervasive’ standard for a hostile work environment claim?”
II. Background
The Supreme Court in Meritor Savings Bank v. Vinson made clear that prohibited discrimination under Title VII is not limited to “economic” or “tangible” discrimination, which is discrimination that affects an employee’s compensation or terms, conditions, or privileges of employment.[19] The Court agreed with the EEOC in recognizing that discrimination resulting in noneconomic injury, such as hostile work environments that “unreasonably interfer[e] with an individual’s work performance,” violates Title VII, too.[20] The Court noted that not all harassment constituted a violation of Title VII; the hostile work environment must be sufficiently “severe or pervasive.”[21]
In defining “severe or pervasive” harassment, the Court in Meritor Savings Bank provided some examples to help understand the standard. Employees who are called a racial, ethnic, or sexual epithet once or twice, although it is undoubtedly offensive, do not experience conduct which is severe or pervasive enough to violate Title VII.[22] However, employees who endure repeated epithets based on their sex, in addition to unwanted sexual advances, may have viable sexual harassment claims under Title VII.[23] Courts have been struggling to define “severe or pervasive” harassment ever since the Supreme Court decided Meritor Savings Bank.
The “severe or pervasive” standard has both objective and subjective components in its interpretation.[24] The employee must subjectively feel that her work environment was hostile or abusive, and a reasonable, objective person in the employee’s shoes must also find the conduct to be “severe or pervasive.”[25] Because of this, courts must look at the totality of the circumstances when deciding whether an employee’s harassment claim survives a motion for summary judgment.[26] The Supreme Court has issued guidance on what facts courts should pay attention to when determining whether conduct reaches to the “severe or pervasive” threshold.[27] These facts include the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”[28] Courts have stressed that the reasonable, objective person should not be too strict or lenient.[29] A “mild, isolated incident does not make a work environment hostile,”[30] and the proper test is whether “the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.”[31]
III. Discussion
Because courts use an objective, reasonable person standard in determining whether harassment is “severe or pervasive” enough to make an actionable claim under Title VII, the standard is subject to change based on society’s ever-shifting views.[32] Recent social justice movements – #MeToo and Black Lives Matter – have brought equality and discrimination to the forefront of conversations happening nationwide. While this may be enough to change some members of society’s viewpoints,[33] courts are typically not on the forefront of implementing societal change.
Courts have yet to lower the “severe or pervasive” standard to match society’s new-and-improved view on harassment. As recently as June 24, 2021, which is the day this article is being written, the Northern District of Illinois reiterated the Seventh Circuit’s standard that “one or two utterances of the N-word are not severe or pervasive enough to rise to the level of establishing liability absent an unusually severe, physically threatening, or humiliating incident.”[34] Likewise, on June 23, 2021, the District Court of Maryland repeated the Fourth Circuit’s standard that “‘callous behavior by one’s supervisors’”[35] or “‘a routine difference of opinion and personality conflict with one’s supervisor’[36] [] do not rise to the level of actionable harassment.”[37] Clearly, courts across the country are not ready to stray from precedent that fails to recognize harassment in all forms.
IV. Conclusion
Most of us would conclude that one instance of harassment is “too much.” However, the Supreme Court has created a standard under Title VII that only bans harassment which is “severe or pervasive.”[38] Because of this, many employees who have been harassed at work do not have viable discrimination claims under Title VII. The purpose of Title VII is for “the workplace [to] be an environment free of discrimination, where [protected classes are] not [] barrier[s] to opportunity.”[39] To hold true to Title VII’s purpose, the “severe or pervasive” standard should be significantly reduced to allow those with true harassment claims to survive a motion for summary judgment. Workplace harassment and discrimination are pervasive and allowing victims to merely stand trial and hold their aggressors accountable helps combat their omnipresent nature.
[1] Meritor Savings Bank v. Vinson, 477 U.S. 57, 59 (1986).
[2] Id. at 59-60.
[3] Id. at 60.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Vinson v. Taylor, 753 F.2d 141, 144-45 (1985).
[11] Meritor Savings Bank, 477 U.S. at 57.
[12] Id. at 65.
[13] Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).
[14] See Harassment, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/harassment (last visited June 24, 2021).
[15] Id.
[16] See Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) (“mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” would not affect the conditions of employment to a sufficiently significant degree to violate Title VII).
[17] Camille Lloyd, One in Four Black Workers Report Discrimination at Work, GALLUP (Jan. 12, 2021), https://news.gallup.com/poll/328394/one-four-black-workers-report-discrimination-work.aspx.
[18] Debra Lancaster and Yana van der Meulen Rodgers, Economic Impacts of Sexual Harassment: Combating Sexual Harassment Can Further Gender Equality, Center for Women and Work 1 (Feb. 2020), https://smlr.rutgers.edu/sites/default/files/Documents/Centers/CWW/Publications/CWW%20Issue%20Brief%20Economic%20Impacts%20of%20Sexual%20Harassment.pdf.
[19] Meritor Savings Bank, 477 U.S. at 64.
[20] Id. (citing 29 C.F.R. § 1604.11(a)(3) (1985)).
[21] Id. at 67.
[22] Id. (quoting Rogers, 454 F.2d at 238).
[23] Henson, 682 F.2d at 903.
[24] Wilson v. N.Y. City DOT, 2005 U.S. Dist. LEXIS 21620, *63 (S.D.N.Y. 2005).
[25] Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003).
[26] Wilson, 2005 U.S. Dist. LEXIS 21620 at *63.
[27] Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
[28] Id.
[29] Wilson, 2005 U.S. Dist. LEXIS 21620 at *64; Terry, 336 F.3d at 148.
[30] Terry, 336 F.3d at 148.
[31] Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (emphasis in original).
[32] See Susanna L. Blumenthal, The Default Legal Person, 54 UCLA L. Rev. 1135, 1149 (2007) (“The outlines of [the reasonable man] seemed to change over time, reflecting the influence of scientific developments beyond the courtroom, particularly in the emergent disciplines of psychiatry, psychology, and neurology.”).
[33] See Ro’ee Levy and Martin Mattsson, The Effects of Social Movements: Evidence from #MeToo, SSRN (Jul. 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496903.
[34] Winston v. Dart, 2021 U.S. Dist. LEXIS 118015, 31 (N.D. Ill. 2021) (quoting Gates v. Bd. of Educ. Of Chi., 916 F.3d 631, 637-38 (7th Cir. 2019)) (internal quotations omitted).
[35] Stovall v. H&S Bakery, 2021 U.S. Dist. LEXIS 117251, *17 (D. Md. 2021) (quoting Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.2003)).
[36] Id. (quoting Hawkins v. PepsiCo, Inc., 203 F.3d 274, 276 (4th Cir. 2000)).
[37] Id.
[38] Meritor Savings Bank, 477 U.S. at 67 (quoting Henson, 682 F.2d at 904).
[39] Ricci v. DeStefano, 557 U.S. 557, 580 (2009).
Author
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Rachel is a 2022 graduate of UC Law. Following graduation, Rachel moved back to her home of St. Louis, Missouri to practice business litigation at Lashly & Baer, P.C. While Rachel was on the University of Cincinnati Law Review, she focused her writing on the reason she came to law school: employment law. Rachel hopes to take her practice in-house someday, utilizing her knowledge and knack for employment law. When Rachel leaves the school or the office, you can find her staying active, both physically and socially.