A. Isolated Instances of Favoritism Towards a “Paramour” Not Prohibited
Not all types of sexual favoritism violate Title VII.1 It is the Commission’s position that
Title VII does not prohibit isolated instances of preferential treatment based upon
consensual romantic relationships. An isolated instance of favoritism toward a “paramour”
(or a spouse, or a friend) may be unfair, but it does not discriminate against women or
men in violation of Title VII, since both are disadvantaged for reasons other than their
genders.2 A female charging party who is denied an employment benefit because of such
sexual favoritism would not have been treated more favorably had she been a man nor,
conversely, was she treated less favorably because she was a woman. See Miller v.
Aluminum Co. of America, 679 F. Supp. 495, 47 EPD ¶ 38,112 (W.D. Pa.), aff’d mem.,
856 F.2d 184 (3d Cir. 1988);3 DeCintio v. Westchester County Medical Center, 807 F.2d
304, 42 EPD ¶ 36,785 (2d Cir. 1986), cert. denied, 108 S.Ct. 89, 44 EPD ¶ 37,425
(1987).4 But see King. v. Palmer, 778 F.2d 878, 39 EPD ¶ 35,808, reh’g denied, 39 EPD ¶
36,036 (D.C. Cir. 1985).5
B. Favoritism Based Upon Coerced Sexual Conduct May Constitute Quid Pro Quo
If a female employee6 is coerced into submitting to unwelcome sexual advances in return
for a job benefit, other female employees who were qualified for but were denied the
benefit may be able to establish that sex was generally made a condition for receiving the
benefit.7 Thus; in order for a woman to have obtained the job benefit at issue, it would
have been necessary to grant sexual favors, a condition that would not have been
imposed on men. This is substantially the same as a traditional sexual harassment charge
alleging that sexual favors were implicitly demanded as a “quid pro quo” in return for job
benefits.8 For example, in Toscano v. Nimmo, 570 F. Supp. 1197, 1199-1201, 32 EPD ¶
33,848 (D. Del. 1983), the court found a violation of Title VII based on the fact that the
granting of sexual favors was a condition for promotion. Although the individual who was
granted preferential treatment was engaged in a consensual affair with her supervisor,
there was evidence that the supervisor made telephone calls to proposition several
female employees at home, phoned employees at work to describe his supposed sexual
encounters with female employees under his supervision, and engaged in suggestive
behavior at work.9
Many times, a third party female will not be able to establish that sex was generally
made a condition for the benefit in question. For example, a supervisor may have been
interested in only one woman and, thus, have coerced only her. Nevertheless, in such a
case, both women and men who were qualified for but were denied the benefit would
have standing to challenge the favoritism on the basis that they were injured as a result
of the discrimination leveled against the woman who was coerced. See EEOC amicus brief
(filed Sept. 30, 1988) in Clayton v. White Hall School District, 875 F.2d 676, 50 EPD ¶
39,048 (8th Cir. 1989), in which the Commission argued that a white employee had
standing under Title VII to challenge her employer’s decision to deny her an employment
benefit pursuant to an employment policy which it allegedly enforced for the purpose of
denying the same benefit to a black employee; although the plaintiff was not the object
of racial discrimination, she was injured as a result of the race discrimination practiced
against the black employee.10 See also DeCintio v. Westchester County Medical Center,
807 F.2d at 307-08 (by implication) (male plaintiffs’ claims of favoritism rejected not
because of lack of standing but because the woman who received the favorable treatment
was not coerced into submitting to sexual advances); EEOC v. T.I.M.E.-D.C. Freight, Inc.,
659 F.2d 690 n.2, 27 EPD ¶ 32,202 (5th Cir. 1981) (white plaintiffs could challenge
discrimination against blacks provided that they could establish a personal injury); Allen
v. American Home Foods, Inc., 644 F. Supp. 1553, 42 EPD ¶ 36,911 (N.D. Ind. 1986)
(males who lost their jobs due to their employer’s discrimination against female coworkers suffered an injury as a result of the discrimination, and therefore had standing to
sue under Title VII).
C. Widespread Favoritism May Constitute Hostile Environment Harassment
If favoritism based upon the granting of sexual favors is widespread in a workplace, both
male and female colleagues who do not welcome this conduct can establish a hostile work
environment in violation of Title VII regardless of whether any objectionable conduct is
directed at them and regardless of whether those who were granted favorable treatment
willingly bestowed the sexual favors. In these circumstances, a message is implicitly
conveyed that the managers view women as “sexual playthings,” thereby creating an
atmosphere that is demeaning to women. Both men and women who find this offensive
can establish a violation if the conduct is “sufficiently severe or pervasive ‘to alter the
conditions of [their] employment and create an abusive working environment.'” Vinson,
477 U.S. at 67 [quoting Henson v. City of Dundee, 682 F.2d 897, 904, 29 EPD ¶ 32,993
(11th Cir. 1982)].11 An analogy can be made to a situation in which supervisors in an
office regularly make racial, ethnic or sexual jokes. Even if the targets of the humor “play
along” and in no way display that they object, co-workers of any race, national origin or
sex can claim that this conduct, which communicates a bias against protected class
members, creates a hostile work environment for them. See Rogers v. EEOC, 454 F.2d
234, 4 EPD ¶ 7597 (5th Cir. 1971), cert. denied, 406 U.S. 957, 4 EPD ¶ 7838 (1972)
(discriminatory treatment of medical patients created hostile work environment for
plaintiff employee); Commission Decision No. 71-969, CCH EEOC Decisions (1973) ¶
6193 (supervisor’s habitual use of racial epithet in referring to Black employees created
discriminatory work environment for White Charging Party); Compliance Manual Volume
II, Section 615.3(a)(3) Examples (1) and (2) (sexual harassment of females may create
hostile work environment for other male and female employees).
Managers who engage in widespread sexual favoritism may also communicate a message
that the way for women to get ahead in the workplace is by engaging in sexual conduct
or that sexual solicitations are a prerequisite to their fair treatment.12 This can form the
basis of an implicit “quid pro quo” harassment claim for female employees, as well as a
hostile environment claim for both women and men who find this offensive. 13
The case of Broderick v. Ruder, 685 F. Supp. 1269, 46 EPD ¶ 37,963 (D.D.C. 1988)
illustrates how widespread sexual favoritism can be found to violate Title VII. In Broderick
a staff attorney at the Securities and Exchange Commission alleged that two of her
supervisors had engaged in sexual relationships with two secretaries who received
promotions, cash awards, and other job benefits. Another of her supervisors allegedly
promoted the career of a staff attorney with whom he socialized extensively and to whom
he was noticeably attracted. In addition, there were isolated instances of sexual
harassment directed at the plaintiff herself, including an incident in which her supervisor
became drunk at an office party, untied the plaintiff’s sweater, and kissed her. The court
found that the conduct of these supervisors “created an atmosphere of hostile work
environment” offensive to the plaintiff and several other witnesses. It further stated that
the supervisors’ conduct in bestowing preferential treatment upon those who submitted
to their sexual advances undermined the plaintiff’s motivation and work performance and
deprived her and other female employees of promotions and job opportunities. Broderick,
685 F. Supp. at 1278. While the court in Broderick grounded its ruling on the hostile
environment theory, it is the Commission’s position that these facts could also support an
implicit “quid pro quo” harassment claim since the managers, by their conduct,
communicated a message to all female employees in the office that job benefits would be
awarded to those who participated in sexual conduct. See also Spencer v. General
Electric, 697 F. Supp. 204 (E.D. Va. 1988).14
Example 1 – Charging Party (CP) alleges that she lost a promotion for which she was
qualified because the co-worker who obtained the promotion was engaged in a sexual
relationship with their supervisor. EEOC’s investigation discloses that the relationship at
issue was consensual and that the supervisor had never subjected CP’s co-worker or any
other employees to unwelcome sexual advances. The Commission would find no violation
of Title VII in these circumstances, because men and women were equally disadvantaged
by the supervisor’s conduct for reasons other than their genders.
Even if CP is genuinely offended by the supervisor’s conduct, she has no Title VII claim.
Example 2 – Same as above, except the relationship at issue was not consensual.
Instead, CP’s supervisor regularly harassed the co-worker in front of other employees,
demanded sexual favors as a condition for her promotion, and then audibly boasted
about his “conquest.” In these circumstances, CP may be able to establish a violation of
Title VII by showing that in order to have obtained the promotion, it would have been
necessary to grant sexual favors. In addition, she and other qualified men and women
who were denied the promotion would have standing to challenge the favoritism on the
basis that they were injured as a result of the discrimination levelled against their coworker.
Example 3 – Same as Example 1, except CP’s supervisor and other management
personnel regularly solicited sexual favors from subordinate employees and offered job
opportunities to those who complied. Some of those employees willingly consented to the
sexual requests and in turn received promotions and awards. Others consented because
they recognized that their opportunities for advancement would otherwise be limited. CP,
who did not welcome this conduct, was not approached for sexual favors. However, she
and other female and male coworkers may be able to establish that the conduct created a
hostile work environment. She can also claim that by their conduct, the managers
communicated to all female employees that they can obtain job benefits only by
acquiescing in sexual conduct.
Clarence Thomas
Moving Women Forward
On the 50th Anniversary of
Title VII of the Civil Rights Act
A Three-Part Series
Part One: Sexual Harassment
Still Exacting a Hefty Toll
shipyard worker
and ERA client
Page 1
This Report benefitted from the dedication of many individuals. The principal authors were Equal Rights Advocates
staff members Noreen Farrell, Jennifer Reisch, Monali Sheth, Joelle Emerson, and Mia Munro. We also thank Jocelyn
Sperling and Irma Herrera for outstanding editorial suggestions and drafting assistance.
Equal Rights Advocates thanks and acknowledges a Blue Ribbon Panel of national experts who contributed invaluably
to the direction of the report in its early stages and offered editorial suggestions. They are:
Herma Hill Kay, Professor of Law at University of California Berkeley School of Law
Joanna Grossman, Professor of Law at Hofstra University School of Law
Katherine M. Kimpel, Sanford Heisler LLP
Jeannette Cox, Professor of Law at University of Dayton School of Law
Linda Hamilton Krieger, Professor of Law at University of Hawaii at Manoa William S. Richardson School of Law
Leslye Orloff, Professor of Law and Director of the National Immigrant Women’s Advocacy Project at American
University Washington College of Law
Monica Ramirez, former Acting Deputy Director of Centro de los Derechos del Migrante, Inc.
William Tamayo, U.S. Equal Employment Opportunity Commission
Ariane Hegewisch, Institute for Women’s Policy Research
Roberta Steele, National Employment Lawyers Association
Equal Rights Advocates thanks the institutional funders who generously support our work and the movement for
social justice in this country, including the Ford Foundation, the NoVo Foundation, the Levi Strauss Foundation,
the Skadden Fellowship Foundation, the San Francisco Foundation, Common Counsel Foundation, Rosenberg
Foundation, and the Women’s Foundation of California. We also thank the Restaurant Opportunities Centers United
for its partnership with ERA through the Access to Gender Justice Campaign to end sex discrimination and unfair
treatment in the restaurant industry.
©2014 Equal Rights Advocates. All rights reserved.
Page 2
Moving Women Forward: Executive Summary

All I want is to be human, and American, and
have all the same rights, and I will shut up.
Martha Griffiths, former member of the U.S. House of Representatives from Michigan and a chief proponent
of adding sex as a protected class to Title VII of the Civil Rights Act of 1964.
When Martha Griffiths, a member of the House of
Representatives, fiercely advocated for a last-minute
amendment to Title VII of the Civil Rights Act of 1964 to
include a prohibition of workplace discrimination based
on sex,1 the world was a different place. Women were
excluded outright from many workplaces. Employers
could lawfully pay women less for the same work and fire
them once their pregnancies became obvious. Sexual
harassment was blatant. Marriage and weight gain
and getting older were grounds for termination in some
industries, for women anyway.
The amendment adding “sex” as a protected category
to Title VII, just two days before Congress voted on the
bill, was a tremendous opportunity for the women’s
movement. Fifty years after passage of the Civil Rights
Act of 1964, we ask:
Has Title VII of the Civil Rights Act of
1964 Improved Women’s Economic
Opportunity and Security?
Equal Rights Advocates takes a hard look at that question
in this Report. Founded in 1974, ERA grew up with the
Civil Rights Act of 1964. Over our 40-year history, ERA
has relied on Title VII to pursue groundbreaking cases to
end sex discrimination in the workplace. Our early equal
protection pregnancy discrimination cases before the U.S.
Supreme Court, like Geduldig v. Aiello (1974),2 buoyed
passage of an amendment to Title VII to confirm the law’s
prohibition against pregnancy discrimination as a form of
sex discrimination (the Pregnancy Discrimination Act of
1978).3 ERA also led cases to combat workplace sexual
harassment (Miller v. Bank of America),4 the exclusion of
women from male-dominated fields like firefighting (Davis
v. San Francisco),5 and pay and promotion discrimination
(Dukes v. Wal-Mart Stores).6 ERA has fielded calls from
tens of thousands of women across the country with
concerns about discrimination and harassment at work.
The stories of our many clients, recent data from the
Equal Employment Opportunity Commission, and input
from the nation’s top gender equity experts, all informed
this Report.
The answer to whether Title VII has improved women’s
economic opportunities and security depends on which
women are the subject of the question. This Report
focuses on low-wage women workers and women
of color. Troubling statistics drive this focus. Women
are nearly two-thirds of minimum wage workers in this
country.7 They are twice as likely as men to be employed
in occupations that pay poverty wages.8 African-American
women and Latinas are even more likely than women
as a whole to be employed in lower-paying service
occupations and significantly more likely to be among the
working poor.9 Women with children remain concentrated
in low-wage jobs and are paid substantially less than
fathers or men and women who are not parents.10
This Report is a three-part series that examines:
sexual harassment and violence, discrimination against
pregnant workers and working mothers, and the gender
wage gap.
The first obstacle examined in this report – sexual
harassment and violence in the workplace – has
been largely ignored as an economic issue despite its
devastating impact on a large number of working women.
Sexual harassment compromises the economic security
of women workers because women who are harassed
are often denied or deterred from promotions, fired, or
forced to leave their jobs, regardless of whether they file
Page 3
Moving Women Forward: Executive Summary
sexual harassment and violence
discrimination against pregnant workers and working mothers
the gender wage gap
a complaint.11 And millions of women workers who rely
on customer tips to support themselves and their families
(particularly in states where the tipped minimum wage is
just $2.13 per hour) too often face the impossible choice
of enduring sexual harassment or losing income critical to
their survival.12
The second part of this Report examines discrimination
and lack of accommodation for pregnant workers and
caregivers. It is a problem that is only getting worse.
The number of pregnant women who are fired or laid
off has actually grown over the past two decades13
and is especially high for African-American women and
Latinas.14 Pregnant women and new mothers working in
low-wage jobs are heavily burdened by discrimination.15
Low-wage workers are filing a disproportionate
number of pregnancy discrimination charges,16 and the
discrimination these women face has long-term negative
effects on their earning capacity and economic stability.17
The third installment of this Report addresses the gender
wage gap – a glaring and measurable example of
persistent sex discrimination in the American workforce.
The wage gap between male and female workers has
remained stagnant for over a decade and closed by only
about 14 cents in the last five decades.18 Women working
full-time earn on average 77 cents for every dollar paid
to male workers, and women of color fare even worse.
Despite laws prohibiting discrimination, most women and
men work in different fields that are highly segregated by
gender, and “women’s work” continues to be worth less
than work done mostly by men.
How Has Title VII Succeeded? How
Has it Failed?
The cases, stories, and data examined in this Report
reveal a law that has bright spots as a tool in the
movement for women’s equality, but one that has its
blind spots, too. In many ways, advocates seized the
opportunity presented by the last minute addition to Title
VII prohibiting sex discrimination. We have enforced the
law to protect and advance opportunities for women
and used it to successfully challenge sex discrimination
in hiring, pay, promotion, other working conditions. Title
VII can be credited, in part, for the radical increase in
women’s and mothers’ participation in the workforce
and labor market. Women now make up nearly half the
workforce and have entered almost every profession.
But today, as Dukes v. Wal-Mart Stores and subsequent
retail cases demonstrate, entire industries remain
infected by sex discrimination and other unfair practices.
Today, ERA represents women shipyard works in
Norfolk, Virginia who suffer from blatant discrimination
and harassment in their workplace, where they are
outnumbered by men 16 to 1. Many are women of color
who have been denied raises and higher paying jobs
despite decades of service and exemplary qualifications.
It is a workplace where women are commonly called
“whores” and other slurs, and where supervisors and
senior managers alike participate in or turn a blind eye to
this rampant sexual harassment.
Why Are We Lagging in 2014?
Title VII was not designed to address many of the
barriers to economic security for women that still exist
today, such as a lack of paid leave and poor access
to affordable, quality child care. Moreover, while we
have enjoyed some tremendous victories in the courts,
judicial misinterpretations of Title VII have held back
progress for many women workers in significant ways.
Fundamental obstacles also remain to even accessing
the protections of Title VII for far too many workers,
leading to widespread under-enforcement in low-wage
industries and occupations. Few women know their rights
or can access a qualified lawyer to represent them when
they need legal help. Many are fearful of retaliation or are
too financially vulnerable to challenge discrimination at all.
Others have been stopped by attacks on workers’ ability
to challenge discriminatory practices collectively through
class actions.
Page 4
Moving Women Forward: Executive Summary
These gaps and obstacles pose serious threats to the
economic security of women in this country. And while
we are heartened by the efforts of partners nationwide
to enforce Title VII, including for women of color and
low-wage women workers, we cannot wait another
50 years for workplace equality. A recent poll shows
that more than 70 percent of Americans believe that
women’s contributions to our national economy are
essential.19 A significant 90 percent of American voters
favor policies that would help women get equal pay for
equal work and raise wages for women and families.20
This polling data reflects the consensus documented
in a number of reports released over the past year:
Americans want women to be treated fairly in the
workplace and will support policies to even the playing
field for working women and their families.
How Will We Seize on Today’s
Moment of Opportunity for the
Women’s Movement?
Fifty years after Title VII’s historic passage, the time
has come once again to revolutionize the judicial
system to better protect women workers. This Report’s
three sections detail specific recommendations for
policy makers, administrative agencies, advocates,
and employers to get this process started. These
recommendations include suggestions for improving
the enforcement of Title VII and to correct flagrant
misinterpretation of the law’s provisions. We also make
recommendations on how to fill Title VII’s gaps through
a series of policy initiatives that take a holistic approach
to improving the economic security of women in this
country today.
This bold and comprehensive approach to boost
and equalize economic opportunity and security for
women is gaining traction. In 2013, U.S. House of
Representatives Minority Leader Nancy Pelosi (D-CA)
and U.S. Representative Rosa DeLauro (D-CT) unveiled
a policy platform called When Women Succeed, America
Succeeds: An Economic Agenda for Women and
Families. The agenda outlines a broad set of federal
policy initiatives to advance the economic security of
working families by promoting fair pay, family-friendly
workplaces, and universal child care. The momentum for
similar agendas is growing strong at the state level too.
Minnesota, for example, recently passed the Women’s
Economic Security Act,21 which strengthens fair pay laws
and expands protections for pregnant workers. Equal
Rights Advocates has joined a chorus of partners calling
for a sweeping women’s economic agenda in California
that will lead the nation in its inclusion of initiatives to meet
the basic needs of impoverished women and families.
The work of our movement is not done. Let us draw
inspiration from Title VII’s 50th Anniversary and push
ahead now to reach its intended goal – to create and
protect workplaces in which all workers have a chance to
contribute, participate, and flourish, no matter their sex.
Noreen Farrell
Executive Director
Equal Rights Advocates
October 9, 2014
Page 5
Moving Women Forward: Part One
Sexual Harassment
Still Exacting a Hefty Toll
ERA represents women working for a large military contractor who have brought a Title
VII class action to challenge sexual harassment and other forms of discrimination against
them and other women workers. Why should they have to tolerate this kind of mistreatment
simply because they work in a blue-collar male-dominated field?
Moving Women Forward: Part One
Fifty years after the passage of Title VII of the Civil Rights Act of 1964 and over 20 years
since the Clarence Thomas Supreme Court confirmation hearing where law professor
Anita Hill’s explosive testimony about sexual harassment by the nominee brought the
issue into the public limelight, sexual harassment remains rampant in the workplace.
The 1991 Tailhook scandal,22 in which more than 100
military officers were accused of sexually assaulting at
least 83 women and 7 men over a several-day event,
was just one of many that exposed the seriousness of
the problem. In 2013, over 20 women came forward
with allegations that former Congressman and San
Diego Mayor Bob Filner subjected them to unwelcome
sexual advances, including inappropriate comments,
kissing, and groping.23 Scandal also rocked professional
football earlier this year, when a Miami Dolphins player
resigned after accusing his teammate of sexual taunting
and racial slurs.24
Recent reports from Human Rights Watch and the
Southern Poverty Law Center, as well as “Rape in the
Fields,” a 2013 documentary from Frontline and Univision,
recount the stories of sexual harassment and assault
endured by immigrant women who pick and process
the food we eat.25 Victims are reluctant to come forward
because their harassers control their jobs and whether they
can feed their children and keep roofs over their heads.26
Kirby Dick’s recent award-winning documentary, The
Invisible War, exposes an epidemic of sexual harassment
and sexual assault against our nation’s military women
that goes well beyond Tailhook and has persisted for
decades.27 In 2012, over 26,000 military personnel were
sexually assaulted, but only a fraction of these assaults
were reported.28 Anticipation of career reprisals deters
victims from coming forward, as more than 62 percent of
military women who reported sexual assault experienced
some form of retaliation. 29
Unfortunately, these high profile stories reflect what is
happening on the ground elsewhere. For the past several
years, workplace sexual harassment complaints have
represented the majority of calls to ERA’s toll-free, national
advice and counseling hotline.30 Workers across a range
of industries, from technology to building maintenance
to food service and preparation, have relayed countless
stories of sexual harassment on the job. Fear of reprisal
and other factors often prevent women from speaking out
at work or complaining publicly about the harassment.
Page 7
This fear is realized all too frequently, as many callers
report experiencing retaliation after reporting harassment
to their employers.31 A recent national survey tells a similar
story: 32 percent of women reported experiencing sexual
harassment in the workplace, and 70 percent of those
women never reported it, citing fear of retaliation as the
reason for staying silent.32
Whether reported or hidden, we have known for
decades that sexual harassment in the workplace has
dire emotional and physical consequences for women.
The financial impacts are severe.33 Sexual harassment
undermines the long-term earning capacity of women
workers and contributes to the gender wage gap.
It can undermine job performance and professional
credibility. Those who keep their jobs may be obstructed
by harassing supervisors or may decline certain
opportunities for professional advancement in order to
avoid the harassment.34 Workers subjected to sexual
harassment are often fired or forced to leave their jobs,
regardless of whether they file a complaint.35 Additionally,
millions of women workers who rely on customer tips
to support themselves and their families (particularly in
states where they make the federal tipped minimum
wage of just $2.13 per hour) are given the impossible
choice of enduring sexual harassment or losing wages
critical to their survival.36
The continued prevalence of sexual harassment and
retaliation that silences victims has a profound economic
toll on women workers. On the 50th anniversary of Title
VII, we must consider the following questions:
◆◆ What has Title VII done to protect women
from sexual harassment?
◆◆ What challenges do women subjected to
workplace harassment face in accessing
protections and exercising rights under Title
◆◆ What can be done, both within and beyond
Title VII, to overcome these challenges?
Title VII’s Bright Spots: Progress
in Addressing Harassment Based
on Sex
The interpretation of Title VII to prohibit sexual
harassment has come a long way since passage of the
Civil Rights Act of 1964. The term “sexual harassment”
does not appear in the statute; nor is it referenced in
Title VII’s legislative history given the last-minute inclusion
of sex as a protected class shortly before the Act’s
passage.37 Worse yet, early federal court interpretations
of Title VII determined that the prohibition on sex
discrimination did not include sexual harassment.38
But by the late 1970s, the term “sexual harassment”
came into use as a phrase, and by 1980 the Equal
Employment Opportunity Commission (EEOC) published
its first guidelines on workplace sexual harassment.39 In
1986, the Supreme Court’s decision in Meritor Savings
Bank, FSB v. Vinson recognized that sexual harassment
is a form of sex discrimination prohibited by Title VII, even
if it does not involve employment actions like firing, failing
to hire, or denying promotion to someone based on sex.40
Over time, courts came to recognize that sexual
harassment can manifest in different ways – from daily
inappropriate comments to a single incident of sexual
assault – and that all these forms can and do deprive
women of equal employment opportunity. In the 1993
case of Harris v. Forklift Systems, Inc., the Supreme
Court confirmed the importance of examining all the
circumstances in a given situation to determine whether
unlawful harassment was present, specifically directing
courts to look at the frequency of the alleged misconduct
as well as its severity.41 It also acknowledged that even
when harassment does not have a measurable impact
on an employee’s psychological health, it frequently can
and does undermine job performance and maintenance
as well as career advancement.42
Courts continued to make progress in their interpretation
and application of Title VII to address sexual harassment
in its many forms, including same-sex harassment.
Building upon earlier cases that held that Title VII
outlawed sex stereotypes to influence employment
decisions,43 the Supreme Court in Oncale v. Sundowner
Offshore Services (1998), recognized that harassment
“based on sex” did not have to be motivated by sexual
or romantic desire to be unlawful.44 Oncale established
the important principle that Title VII also protects
individuals who experience harassment based on
their nonconformity to gender stereotypes, or in other
words, the perception that they are not acting how men
or women “should.”45 While Title VII still has not been
amended to include “sexual orientation” or “gender
identity” as protected categories, the line of cases
following Oncale spurred introduction of the Employment
Non-Discrimination Act (ENDA), pending federal
legislation which would outlaw workplace discrimination
on the basis of sexual orientation or gender identity.
Despite the evolution of case law addressing sexual
harassment in the workplace as a form of unlawful
discrimination under Title VII, troubling obstacles remain
for many groups of women. Some of these obstacles
have been exacerbated by recent developments in the
law that will have a particularly adverse impact on lowwage workers, especially immigrant women.
Why is Title VII falling short for these women?
Title VII Blind Spots: How Does the
Law Fall Short for Women Sexually
Harassed at Work?
Sexual harassment victims still face tremendous
hurdles in accessing and exercising their civil rights in
the workplace. Employers who establish bare-bones
company policies or who operate in traditionally maledominated, blue-collar industries are getting a free pass
when it comes to sexual harassment. Some courts
refuse to merit harassment claims based on race and
sex. Equally troubling, especially for low-wage immigrant
women workers, is the double blow dealt by two recent
Supreme Court decisions that increase the odds that
sexual harassment by certain supervisors and retaliation
against those who complain will occur without recourse.
Employers Are Let Off the Hook with
“File Cabinet Compliance.”
In its earlier Title VII harassment cases, the Supreme
Court decided that employers could defend themselves
from claims of workplace harassment by showing that
they did what they could to prevent the harassment and
had procedures in place for employees to complain about
harassment.47 While the Court may have intended to
motivate employers to take meaningful steps to prevent
sexual harassment, subsequent cases have incentivized
the opposite outcome.48
Page 8
Federal courts in nearly every circuit around the country
have determined that as long as an employer has a
sexual harassment policy and a grievance procedure, it
has met its obligation to prevent harassment (regardless
of whether the policy and procedure have been effective
at that or any other workplace).49 Straining to avoid an
intrusion on how employers structure their workplaces,
courts are ignoring the discrimination that can fester in
these workplace structures.50
Go Beyond Mere Policies.
• Rather than being rewarded for “file cabinet
compliance,” employers should be encouraged to
take steps to address the actual causes of such
harassment by, for example, keeping records
of harassment complaints, implementing postcomplaint procedures, periodically assessing and
revising anti-harassment” policies and procedures,
and evaluating supervisors’ compliance with the
policies and procedures.51
Treat Sexual Harassment as Workplace Violence.
• Too often, when a worker reports that she has
been sexually assaulted on the job, a manager
hesitates or declines to involve law enforcement.
The manager may ask the worker for “proof,”
or whether she is “sure” about what happened.
Sexual assaults are violent crimes; employers
should treat them as such and contact law
enforcement immediately.
Tougher Standards of Proof Are
Required in Blue-Collar Jobs.
ERA client Janet, a specialist shipfitter, has worked at a
shipyard for the past 30 years. Male coworkers regularly
use sexual and sexist language like “bitch” and “whore”
in the workplace, tell graphic “jokes” about their sexual
conquests with women, and make comments about
women not belonging in the shipyard. Female workers
are discouraged from speaking out about this hostile
conduct because their discrimination and harassment
complaints are often ignored or dismissed and the men
who perpetrate it largely go unpunished.
egregious harassment.52 In a troubling trend, some
courts have allowed “workplace culture” to act as a
defense to sexual harassment, undermining the rights
of workers in blue-collar fields by determining that crude
and offensive sexist behavior is simply “part and parcel”
of those jobs.53
Patricia Gross, a female truck driver for a construction
company, worked under a supervisor who repeatedly
referred to her as “dumb,” a “cunt,” and other
demeaning terms. He told her that she was only hired to
meet federal requirements against gender discrimination
and openly expressed his dislike for women who were
outside the 19-to-25 age range and weighed more
than 115 pounds. The supervisor also threatened to
retaliate against her because he heard that she was
contemplating filing an EEOC charge.54 A federal appeals
court found that Patricia’s work environment should
be evaluated in light of its blue-collar nature “where
crude language is commonly used by male and female
employees.”55 The court then contrasted the setting of
Patricia’s job with that of a prep school faculty meeting
or the floor of Congress to conclude that different
speech is permissible in different types of workplaces.56
Unfortunately, many courts have followed suit, giving
credence to this so-called “workplace class culture
defense” against sexual harassment allegations in
blue-collar settings.57 This sort of deferential view to
“workplace culture” – the attitude of “that’s just the way
it is” – has weakened the force of Title VII to compel
change in the workplace58 and address gender-based
occupational segregation.59
The Sixth Circuit Court of Appeals got it right in
Williams v. Gen. Motors Corp (1999): “We do not
believe that a woman who chooses to work in the
male-dominated trades relinquishes her right to be
free from sexual harassment; indeed, we find this
reasoning to be illogical, because it means that
the more hostile the environment, and the more
prevalent the sexism, the more difficult it is for a
Title VII plaintiff to prove that sex-based conduct is
sufficiently severe or pervasive to constitute a hostile
work environment. Surely women working in the
trades do not deserve less protection from the
law than women working in a courthouse.”60
Women like Janet who work in blue-collar jobs
traditionally held by men are more likely to endure
Page 9
However, even when women of color reach the
courthouse steps, judges have often mistreated their
Title VII harassment claims.62 The case of Phyllis Clay
illustrates this point. When Clay, an African American
woman working as a security officer, alleged that her
white coworkers physically assaulted her because of
her race and subjected her to verbal abuse, repeatedly
calling her names like “ni**er bitch,” making derogatory
references to her sexual orientation, and using
demeaning stereotypes about black people “liv[ing] off
welfare because they are lazy,” a federal court refused to
acknowledge that her harassment claim was based on
her race as well as her sex.63
Women of color suffer from racialized sexual harassment.
Many courts deciding cases under Title VII aren’t getting it.
Harassment Claims Brought by Women
of Color Get Short-Changed.
A week after ERA client Alma* started a new job at a
small restaurant in Northern California, her boss began to
make offensive and demeaning comments about Latinas.
He regularly referred to Latinas, including Alma, as
“whores” and “sluts” and “thieves” who are so stupid that
they are only good for one thing – having sex. When this
harassment became too much to bear, Alma developed
anxiety and depression and was forced to leave her job.
Alma’s boss harassed her not only because she was
a woman, and not only because she was Latina, but
because she was a Latina woman.
Like Alma, women of color often confront harassment
in the workplace that is filtered through the lens of their
race and sex. Women of color are also particularly
vulnerable to sexual harassment, and they have less
access to the legal system through which they can
seek redress.61
*Real name not used.
Many women of color experience workplace harassment
because of their race and because of their sex; both
elements are equally at play. For example, slurs like
“ni**er bitch” refer to black women specifically, and
would not be used against black men or white women –
they convey both a racialized form of sexual harassment
and a gendered form of racial harassment, which
cannot be broken down into separate parts.64 Even
though Title VII prohibits discrimination based on race
and sex, courts interpreting and applying the law in
harassment cases brought by women of color often fail
to acknowledge or allow plaintiffs to show how race and
sex-based harassment overlap, forcing these workers
to compartmentalize their experiences or fold one type
of harassment into another in order to assert or support
their claims of discrimination.65
Women of color alleging harassment claims under
Title VII should not have to parse out the evidence
supporting their claims into “race” and “sex” categories
and then choose one as the primary or only focus of
their case.
The Bar to Hold Employers Liable for
Supervisor Harassment Is Too High.
ERA client Maria Bojorquez worked as a janitor for a
national building and maintenance services company
when she was sexually harassed and assaulted by the
foreman of the building. He trained Maria, assigned her
to a work station, and checked her work each night. She
primarily worked alone, and the foreman had unrestricted
access to all areas of the building, including the offices
Page 10
sexual harassment by supervisors in the workplace,66
a recent Supreme Court decision, Vance v. Ball State
University (2013),67 has wreaked havoc on a critical piece
of that equation: the definition of a supervisor. Rejecting
well-established supervisor definitions embraced by
the EEOC68 and some lower courts,69 the Vance Court
reclassified direct supervisors like Maria’s as co-workers,
defining “supervisors” as only those with the actual
authority to hire and fire subordinates.70
ERA client Maria Bojorquez, while working as a janitor
cleaning offices at night, was sexually harassed and
assaulted by her immediate supervisor. Maria was then
subjected to retaliation by her employer. Maria prevailed
on both counts at trial and was vindicated with a jury
verdict of over $812,000. However, the outcome of
Maria’s sexual harassment claim may have been different
if adjudicated under today’s Title VII test governing liability
for supervisor harassment. A fix is needed.
Maria was assigned to clean. Not long after she started
working, the foreman began making embarrassing
sexually explicit comments to her, demanding sexual
favors, touching her breasts and buttocks against her
will, and exposing himself to her. He repeatedly warned
her that if she told anyone, no one would believe
her because he was “the boss” and she was just a
“temporary” worker.
Maria is like many low-wage workers, and immigrant
workers in particular, who often endure harassment
from their immediate supervisors who direct their daily
activities, set their schedules, and tell them what to do
and when to do it.
While Maria’s case resulted in a jury verdict against her
employer, it might have ended differently if decided
under the standards governing Title VII today. While early
Supreme Court cases established circumstances under
which an employer is strictly or automatically liable for
This artificial, unworkable distinction ignores the realities
of today’s workplace and is especially harmful for
low-wage workers, especially immigrants, many of
whom have little or no contact with, and do not receive
work assignments or supervision from, the high-level
supervisors empowered to hire and fire them. In a
description of the chain of command in agricultural jobs
applicable to many other industries with large low-wage,
immigrant workforces, Regional Attorney for the EEOC
San Francisco District Office William R. Tamayo explains
this dynamic:
The owners of the major farms tend to be white,
English speaking longtime family members who
turn over operations of the farm to “Jose,” a
long time employee who is bilingual and who is
expected to maintain the operations and keep labor
protections to a minimum – you know, “out of sight,
out of mind.” 71
Workers naturally view Jose as the only “supervisor”
they know. Because they are geographically isolated,
have limited options, and live in poverty, workers
“are dependent on Jose to navigate the Englishspeaking world for them. If Jose is a predator and/or
his supervisors below him are predators, it is the ideal
situation for sexual harassment to occur – unfettered,
unpunished, and unstopped.”72
Unfortunately, the industries where Vance will have the
most harmful impact are the same industries where
sexual harassment is most rampant – service industries
with large populations of low-wage73 and immigrant
workers, like building maintenance74 and restaurants.75
It is in these industries where the typical chain of
command frequently facilitates unbridled supervisor
sexual harassment of vulnerable subordinates.76 It
is common in these industries for employers to give
bilingual middlemen supervisory authority that may
fall short of the ability to hire and fire but that allows
them to use their relative authority to prey on isolated,
Page 11
economically desperate female workers who cannot
speak English and have no relationship with or
understanding of upper management.77 These harassers
choose low-wage immigrant women workers precisely
because they lack power relative to other workers
and because they perceive the women as passive
and unable to complain.78 These middlemen are not
discouraged from engaging in sexual harassment
because certain formal powers have not been delegated
to them; rather they are emboldened by the authority
with which they have been vested.
By ignoring these workplace realities, Vance both
diminishes employers’ incentive to train the direct
managers who control their subordinates’ daily
activities79 and makes it harder for women who suffer
the consequences of this lack of training to bring a legal
claim. As a result, 50 years after the passage of Title VII,
the Supreme Court has undermined Title VII’s objectives
of preventing and remedying harassment, especially for
low-wage and immigrant women workers.
• Pass the Fair Employment Protection Act,
pending federal legislation that would amend
Title VII to clarify that employers may be held
vicariously liable for harassment and other forms of
discrimination committed by individuals authorized
to perform tangible employ-ment actions like
hiring, firing, and promoting, as well as directing an
employee’s day-to-day activities.80
• Urge the EEOC’s strict adherence to its Strategic
Enforcement Plan FY 2013-2016, which
prioritizes enforcement actions on behalf of
vulnerable workers, including immigrant workers.81
Silence in the Face of Retaliation and
Poverty Wages.
ERA hotline caller Luisa* is an undocumented Mexican
immigrant who worked as a line cook for a large fast
food restaurant chain. She was terrorized each day
by a kitchen supervisor who asked her out, made
sexual comments, stalked her during off-work hours,
touched her breasts, and made efforts to kiss her. He
told Luisa that she “owed” him for weekend shifts and
if she didn’t do what he wanted, he would have her
fired and reported to immigration authorities. A senior
manager laughed at her complaints and requests for
transfer, asking “Who do you think you are? I know you
are undocumented. How are you going to ask for a
transfer?” After Luisa complained, the kitchen supervisor
threatened her brother’s job, cut her hours, and changed
her shift so he could work alone with her.
Fears of reprisal and other factors prevent many
women from speaking out at work or complaining
publicly about sexual harassment.82 All too often, these
fears are realized for the significant portion of sexual
harassment victims who find themselves worse off after
complaining.83 Not surprisingly, nearly every sexual
harassment case the EEOC has filed in court contains
a related retaliation claim. This reality rings particularly
true for low-wage immigrant women workers.85 As
EEOC Regional Counsel Tamayo has explained, power
disparities often facilitate the infliction of the most
egregious and devastating acts of retaliation on this
demographic of women:
Retaliation is an indispensable weapon in
an harasser’s arsenal. Perhaps of all settings,
the workplace exhibits the greatest imbalance of
power especially for non-English speaking women,
immigrants, those who work in the fields, and those
who are geographically, socially and linguistically
isolated. After all, the harasser supervisor can
control whether the victim has a job, can feed her
children, has a roof over her head and whether the
members of her family can stay alive.86
Unfortunately, the Supreme Court’s recent decision in
University of Texas Southwestern Medical Center v.
Nassar (2013)87 will diminish Title VII’s anti-retaliation
protections and further discourage low-wage and
immigrant women who have been victims of workplace
harassment from reporting such unlawful conduct to
their employers. In Nassar, the Court held that a plaintiff
who has been discriminated and retaliated against must
meet a more difficult standard for proving retaliation
than for proving the discrimination itself. After Nassar,
it is not enough to show that an employee’s complaint
about harassment was one “motivating factor” for the
employer’s retaliation; instead, an employee must show
that the retaliation would not have happened had she
not complained.88 Some employers may attempt to push
this standard even further, arguing that an employee
must prove that the retaliation happened only because
she complained.
*Real name not used.
Page 12
Though a Title VII Nassar fix may assist victims of sexual
harassment who face retaliation when they complain,
retaliation is not the only factor coercing workers into
silence. Economic realities also play a major role. Today,
workers making minimum wage and slightly above
have less buying power than their peers from several
generations ago.89 One study finds that a family of four
requires close to $90,000 a year to get by in the nation’s
capital – the equivalent of six minimum wage jobs.90
This reality has a disproportionate impact on women
and women-headed households, since women in the
workforce tend to hold the lowest-paying jobs. Nearly
two-thirds of minimum wage earners are women.91
A legislative fix to the Nassar decision, clarifying
that the same standard applies to establishing
employer liability for discrimination as to establishing
employer liability for retaliation under Title VII, is critical
to protect low-wage women workers from retaliation.
Congress must also enact comprehensive
immigration reform to address the well-founded
fears of many undocumented immigrant workers that
complaining about or opposing discrimination will lead
to their deportation.
The picture is even bleaker for tipped minimum wage
workers. Poverty-level wages in the restaurant industry
force women to rely on tips and fuel sexual harassment
in the workplace.92 In many states, the tipped minimum
wage has been stuck at just $2.13 per hour for more
than 20 years.93 Refusing to tolerate customer sexual
harassment can jeopardize a woman’s ability to earn the
tips that support her and her family.94
Advocates and policy makers should promote
legislation that raises the minimum wage,
including the tipped minimum wage of $2.13 per hour,
to a living wage. Higher wages will ensure that lowwage women workers can better support themselves
and their families, provide greater purchasing power
so workers are not living paycheck to paycheck,
and permit greater mobility to leave abusive work
environments where sexual harassment is rampant.
Momentum is on the rise for this fix across the
country in restaurants and other industries. Equal
Rights Advocates has joined forces with Restaurant
Opportunities Centers United and other partners,
calling for the end of a tipped minimum
wage and advocating for a fair minimum wage for
workers in the restaurant industry and beyond.95
President Obama has called on Congress to raise
the federal minimum wage,96 and Democratic
legislators have introduced a bill to increase it
from $7.25 to $10.10 per hour in three steps and
tie future rates to inflation.97 Thirty-eight states
recently introduced legislation related to minimum
wage issues.98 Ten states and Washington, D.C.
enacted bills that will raise the minimum wage in
those states this year,99 while voters in New Jersey
approved a Constitutional amendment to raise the
minimum wage in 2014 and tie future increases to
the cost of living. Workers are pushing for even
more drastic change, demanding that employers
pay a “living wage” above and beyond the
proposed minor hike to the federal minimum wage.
Recently, thousands of non-unionized fast food
restaurant workers from across the country who
earn the minimum wage or just above it walked
out of their jobs to demand a living wage of $15
an hour.101 Seattle made history by becoming the
first big city to approve a $15 minimum wage, the
highest rate in the country.102
Page 13
Addressing Common Roadblocks
for Low Wage, Immigrant Workers
Increase Cultural Competency.
To better meet the needs of today’s increasingly
diverse and multilingual workforce, attorneys
who represent employees should increase their
representation of low-wage and immigrant
women workers in sexual harassment and
retaliation cases and commit to developing the
cultural and linguistic competencies necessary
for such representation.
Enact Immigration Reform.
Perhaps it is no coincidence that Professor Anita Hill
chose this year to release Truth to Power, a documentary
about her decision to testify about the sexual harassment
she endured while working with Clarence Thomas at the
U.S. Department of Education and the EEOC. In the 50
years since Title VII was enacted, and especially since
Professor Hill testified about her experience before the
U.S. Senate 22 years ago, many courageous women
have come forward to speak truth to power and have
sought to hold their employers accountable for workplace
harassment. Yet, in spite of this progress, there are
women who work in restaurants, in the military, on farms,
in processing plants, and in other people’s homes and
offices who are far less privileged than Professor Hill was
and for whom sexual harassment is quite simply a term
of employment. For these women significant obstacles
remain in accessing, exercising, and vindicating their
workplace civil rights.
But these obstacles are not insurmountable. As
discussed above and in the Recommendations section
ahead, there are specific steps we can take and
strategies we can deploy, both within and outside the
bounds of the legal system and Title VII itself, to restore
and expand protections against sexual harassment
and retaliation and better ensure women workers
access to justice.
Undocumented women who fear immigration
consequences are often scared to assert their
rights. Attorneys should familiarize themselves
with the crimes that allow a victim to qualify
for a U visa or T visa, which can give a victim
an opportunity to obtain legal status while
assisting in the investigation of the perpetrator.
Additionally, advocates should support
comprehen-sive immigration reform.
Develop Holistic Services.
Non-legal advocates, community-based
organizations, rape crisis counselors, and other
service providers are essential to combating
sexual harassment and violence because of their
ability to connect survivors with the non-legal
support and assistance they need to be able to
assert their rights and make it through the legal
process in one piece. It is critical that lawyers
representing workers who have been subjected
to workplace sexual harassment and assault
reach out to and form collaborative working
relationships with these service providers to
ensure the best possible care and representation
for clients.
Page 14
Seizing the Moment:
Summary of Part One Recommendations
To address persistent sexual harassment in the workplace, a broad set of measures and actions are needed to
move women forward on this 50th Anniversary of the Civil Rights Act of 1964. These suggested actions will correct
misinterpretations of Title VII, improve enforcement of this law and others designed to advance women at work, and
fill policy gaps that leave too many without the help and protection they need to enjoy economic security and equal
1. Policymakers should enact broad women’s
economic security policy agendas at the
federal and state level, like the federal When
Women Succeed, America Succeeds Agenda
introduced by House Democrats and the recentlypassed Minnesota Women’s Economic Security
Act. The agendas should take a comprehensive
approach with initiatives to meet the basic needs
of women in poverty, raise income, open pathways
to quality jobs, improve workplace fairness, and
improve access to high quality and affordable
child care.
2. Policymakers should pass the Fair
Employment Protection Act. This law would
correct a Supreme Court misinterpretation of Title
VII by clarifying that employers may be held liable
for harassment by individuals who control the dayto day activities of workers, regardless of whether
these individuals are formally authorized to hire
and fire.
3. Policymakers should pass legislation to
improve enforcement of Title VII retaliation
claims. Legislation is needed to reverse a recent
Supreme Court decision making it harder for
workers to prove Title VII retaliation claims.
4. Policymakers should pass the Equal
Employment Opportunity Restoration Act or
similar legislation to eliminate some of the obstacles
to class certification erected by the Supreme Court
in Wal-Mart v. Dukes and ensure an avenue for
workers to address collectively systematic forms of
5. Policymakers should raise the minimum wage
and abolish the tipped minimum wage, which is
as low as $2.13 per hour in some states. Workers
should not be forced to tolerate sexual harassment
in order to earn tips to supplement poverty wages.
6. Policymakers should support comprehensive
immigration reform so that immigrant women
workers do not fear retaliation for complaining about
sexual harassment.
7. The Equal Employment Opportunities
Commission should proceed with full
implementation of the EEOC Strategic
Enforcement Plan FY 2013-2016, which focuses
on eliminating discriminatory hiring practices,
combating discrimination against immigrant
workers, fighting gender-based pay discrimination,
and deterring workplace harassment.
Page 15
8. Worker advocates should encourage greater
cultural and linguistic competency among
attorneys and non-attorney advocates to better
serve and represent low-wage and immigrant
women workers.
9. Worker advocates should consider immigration
remedies for undocumented clients.
Undocumented women who fear immigration
consequences are often afraid to assert their rights.
Attorneys should familiarize themselves with the
qualifying crimes that allow a victim to qualify for a
U visa or T visa, which can enable a victim to obtain
legal status while assisting in the investigation of
the perpetrator.
10. Worker advocates should increase
collaboration with non-legal advocates,
community-based organizations, rape crisis
counselors, and other service providers.
Working with these providers is essential to ensuring
that clients have the support and assistance they
need as they assert their rights and navigate the
often stressful and demanding legal process.
11. Employers should enforce both the letter and
the spirit of laws ensuring equal opportunity,
fair treatment, and non-discrimination in the
workplace and adopt best practices for gender
equity in employment. To effectively reduce
the incidence of harassment in the workplace,
employers must go beyond mere compliance
practices. They should track harassment
complaints, implement a system of post-complaint
follow-up, and obtain outside evaluations of their
anti-harassment policies and procedures.
12. Employers should treat workplace sexual
assault as workplace violence and contact
law enforcement immediately when such violence
takes place.
13. Employers should support workers’ rights to
organize and act together so they can support
promote fair workplaces.
Page 16
The original draft of Title VII of the Civil Rights Act of 1964 would have prohibited workplace discrimination on the basis “race, color, religion,
or national origin.” See, e.g., Louis Menand, The Sex Amendment, THE NEW YORKER (July 21, 2014), http://www.newyorker.com/magazine/2014/07/21/sex-amendment. Two days before the bill went to vote in the House of Representatives, the amendment to add sex was
introduced by Representative Howard W. Smith, a Democrat from Virginia who was vocally opposed to civil rights for African-Americans.
See Robert C. Bird, More than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination in the 1964 Civil Rights Act,
3 WM. & MARY J. WOMEN & L. 137, 150 (1997) (citing 100 Cong. Rec. 2577). While there are several theories about why Smith introduced
the sex amendment, it is undisputed that Representative Martha Griffiths’ passionate defense of it contributed to its passage in the House.
Id. at 139-40, 155-56; see also United States House of Representatives History, Art & Archives, Griffiths, Martha Wright,
http://history.house.gov/People/Listing/G/GRIFFITHS,-Martha-Wright-%28G000471%29/ (last visited July 31, 2014).
2417 U.S. 484 (1974).
42 U.S.C. § 2000e(k).
600 F.2d 211 (9th Cir. 1979).
890 F.2d 1438 (9th Cir. 1989) (affirming consent decree).
603 F.3d 571 (9th Cir. 2010), rev’d, 131 S. Ct. 2541 (2011).
See Nat’l Women’s Law Ctr., 10 Reasons Raising the Minimum Wage to $10.10 Is a Women’s Issue, at 1 n.1 (Feb. 2014),
http://www.nwlc.org/sites/default/files/pdfs/10.10_minimumwagefactsheet_green.pdf (citing U.S. Dep’t of Labor, Bureau of Labor Statistics,
Characteristics of Minimum Wage Workers: 2012, Table 1, available at http://www.bls.gov/cps/minwage2012tbls.htm).
See Ariane Hegewisch & Maxwell Matite, Inst. for Women’s Policy Research, Fact Sheet #C350a, The Gender Wage Gap by Occupation, at
4 (Apr. 2013), available at http://www.iwpr.org/publications/pubs/the-gender-wage-gap-by-occupation-2.
See U.S. Dep’t of Labor, Bureau of Labor Statistics, supra note 7, at Table 1 (Black and Latina women are more than twice as likely as white
women to be living in poverty and more than twice as likely as white men to work in jobs that pay at or below the minimum wage).
Joya Misra et al., Cross-National Patterns in Individual and Household Employment and Work Hours by Gender and Parenthood, 28, 39
(Luxembourg Income Study Working Paper Series, July 2010) (rates and hours of employment); Joya Misra et al., Work-family policies and the
effects of children on women’s employment hours and wages, in Community, Work & Family 14:2, 148-49 (Routledge ed., 2011)
John W. Whitehead, Eleventh Hour Amendment or Serious Business: Sexual Harassment and the United States Supreme Court’s 1997-1998
Term, 71 TEMPLE L. REV. 773, 779 (2005); Gillian K. Hadfield, Rational Women: A Test for Sex-Based Harassment, 83 CALIF. L. REV. 1151,
1174 (1995).
Rest. Opportunities Ctrs. United, Tipped Over the Edge: Gender Inequity in the Restaurant Industry (Feb. 13, 2012), http://rocunited.org/
files/2012/02/ROC_GenderInequity_F1-1.pdf; see also Steven Rosenfeld, National Restaurant Association Ensures Poverty Wages, SALON
(Aug. 28, 2013, 5:41 AM), http://www.salon.com/2013/08/28/the_other_nra_how_the_national_restaurant_association_ensures_poverty_
wages_partner/; Jeanne Smalek, Waitresses Stuck at $2.13 Hourly Minimum for 22 Years, BLOOMBERG (Apr. 25, 2013, 9:01 PM),
http://www.bloomberg.com/news/2013-04-25/waitresses-stuck-at-2-13-hourly-minimum-for-22-years.html; Living Off Tips, ROCUnited.org,
http://rocunited.org/living-off-tips-our-campaign-to-raise-the-tipped-minimum-wage/ (last visited June 12, 2014).
U.S. Census Bureau, Maternity Leave and Employment Patterns of First Time Mothers: 1961-2008, at 9 (Oct. 2011), available at www.census.
gov/prod/2011pubs/p70-128.pdf (percentage of pregnant employees fired or laid off increased from 3.5 percent in 1981-1985 to 4.7 percent in
Latina pregnant women/new mothers, for example, were fired or laid off at nearly double the rate of their white counterparts, and African
Americans at nearly one and a half times the rate of their white female counterparts. Id. at 11, Table 7 (data from 2006-2008).
Pregnant women or new mothers without a high school degree—those likely to work in lower-wage jobs—are three times more likely than more
educated women workers to be fired upon the birth of their first child. Ann O’Leary, How Family Leave Laws Left Out Low-Income Workers, 28
BERKELEY J. EMP. & LAB. L. 1, 7 (2007).
U.S. Equal Emp’t Opportunity Comm’n, Office of Legal Counsel, Response to Equal Rights Advocates Freedom of Information Act (FOIA)
Request (Aug. 27, 2013) (on file with Equal Rights Advocates); Nat’l P’ship for Women & Families, The Pregnancy Discrimination Act: Where
We Stand 30 Years Later, 4-6, 8-9 (Oct. 2008), available at http://go.nationalpartnership.org/site/DocServer/Pregnancy_Discrimination_Act_-_
Where_We_Stand_30_Years_L.pdf (discussing the rise in pregnancy discrimination claims across the country).
See Diane M. Houston & Gillian Marks, The Role of Planning and Workplace Support in Returning to Work After Maternity Leave, 41 British J. of
Indus. Rel. 197, 199 (2003).
See Ariane Hegewisch et al., Inst. for Women’s Policy Research, Fact Sheet #C413, The Gender Wage Gap: 2013, at 3 (Mar. 2014), available at
Page 17
Maria Shriver & Ctr. for Am. Progress, The Shriver Report: Woman’s Nation Pushes Back from the Brink: Executive Summary (Jan. 12, 2014),
available at http://shriverreport.org/a-womans-nation-pushes-back-from-the-brink-executive-summary-maria-shriver/. This data was drawn
from a poll conducted by Greenberg Quinlan Rosner Research, in collaboration with the Center for American Progress and The Shriver Report,
which contacted 3,500 adults by landline, including Spanish speakers. See The Shriver Report: Woman’s Nation Pushes Back from the Brink
(Jan. 12, 2014), at Loc. 44 (“Powerful and Powerless” chapter) n.12.
See Women’s Voices Women Vote Action Fund, Americans Overwhelmingly Support Economic Proposals that Aid Women (July 22, 2013),
available at http://www.wvwvaf.org/news/american-voters-overwhelmingly-support-economic-proposals-that-aid-women/.
H.F. 2536, 88th Leg. (Minn. 2013-14).
The Tailhook sex abuse scandal involved a series of incidents where 100 military officers were alleged to have sexually assaulted at least 83
women and 7 men, or otherwise engaged in “improper and indecent” conduct at the Las Vegas Hilton during the Tailhook Association
Symposium in 1991. After investigation by the Department of the Navy and the Department of Defense, a number of officers were formally
disciplined or refused advancement in rank. See Frontline, The Navy Blues: Tailhook ’91 (PBS television broadcast),
http://www.pbs.org/wgbh/pages/frontline/shows/navy/tailhook/ (last visited Apr. 14, 2014).
Mayor Filner resigned only after months of colleagues and constituents calling on him to step down and in the face of a civil sexual harassment lawsuit and multiple criminal charges. The City of San Diego ultimately settled the civil suit for $250,000, and Filner pleaded guilty to
three criminal charges. See Rob Davis & Adam Nagourney, Ex-Mayor of San Diego Pleads Guilty to Charges of Sexual Harassment, N.Y.
TIMES, Oct. 15, 2013, at A19, available at http://www.nytimes.com/2013/10/16/us/criminal-charges-for-bob-filner-former-san-diego-mayor.
html; Tony Perry, Sexual Harassment Suit against Ex-Mayor Filner Settled for $250,000, L.A. TIMES (Feb. 10, 2014, 3:46 PM), available at
http://www.latimes.com/local/lanow/la-me-ln-filner-lawsuit-20140210,0,6518061.story#axzz2wKXSwoZQ; Tony Perry & Richard Marosi, San
Diego Mayor Bob Filner Resigns, Faces Criminal Investigation, L.A. TIMES (Aug. 23, 2013), available at http://www.latimes.com/local/la-me-filner-20130824,0,6901643.story.
See ESPN.com news services, Incognito, Others Tormented Martin, ESPN.com (Feb. 15, 2014, 12:03 PM), http://espn.go.com/nfl/story/_/
Mary Bauer & Monica Ramirez, Southern Poverty Law Center, Injustice on Our Plates: Immigrant Women in the U.S. Food Industry (Nov. 2010),
http://www.splcenter.org/sites/default/files/downloads/publication/Injustice_on_Our_Plates.pdf; Grace Meng, Human Rights Watch, Cultivating
Fear: The Vulnerability of Immigrant Farmworkers in the U.S. to Sexual Violence and Sexual Harassment (May 2012), http://www.hrw.org/sites/
default/files/reports/us0512ForUpload_1.pdf; Frontline, Rape in the Fields (PBS television broadcast June 25, 2013), available at
http://www.pbs.org/wgbh/pages/frontline/rape-in-the-fields/. Ninety percent of female farmworkers report that sexual harassment is a major
problem. Maria Ontiveros, Lessons from the Fields: Female Farmworkers and the Law, 55 ME. L. REV. 157, 169 (2003).
William R. Tamayo, Rape, Other Egregious Harassment, Threats of Physical Harm to Deter Reporting, and Retaliation 1 (Nov. 2011),
http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011/ac2011/036.authcheckdam.pdf; see also Meng,
supra note 25.
See INVISIBLE WAR (Amy Ziering 2012).
Jennifer Steinhauer, Sexual Assaults in Military Raise Alarm in Washington, N.Y. TIMES, May 7, 2013 at A1, available at http://www.nytimes.
Julie Watson, Retaliation Prevalent in Military, Rape Victim Says 14 Years After Assault, HUFFINGTON POST (May 31, 2013),
For each year between 2010 and 2013, sexual harassment complaints represented between one-quarter and one-third of calls fielded on ERA’s
advice and counseling hotline, the most of any category. Nearly 50 percent of sexual harassment callers in each of these years reported they
also had experienced retaliation. Equal Rights Advocates, A&C Statistical Reports, 2010-2013.
In a 2013 HuffPost/YouGov poll, 13 percent of respondents reported having been sexually harassed by a boss or supervisor and 19 percent
reported harassment by a co-worker. See Jillian Berman & Emily Swanson, Workplace Sexual Harassment Poll Finds Large Share of Workers
Suffer, Don’t Report, HUFFINGTON POST (Aug. 27, 2013, 1:13 AM), http://www.huffingtonpost.com/2013/08/27/workplace-sexual-harassment-poll_n_3823671.html.
Harris v. Forklift Sys., 510 U.S. 17, 19, 22 (1993) (stating that “[a] discriminatorily abusive work environment, even one that does not seriously
affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining
on the job, or keep them from advancing in their careers.”).
See Whitehead, supra note 11, at 780.
Whitehead, supra note 11, at 779; Hadfield, supra note 11, at 1174.
Because they comprise two-thirds of tipped restaurant workers, women disproportionately bear the economic burden of this wage stagnation.
See Rest. Opportunities Ctrs. United, supra note 12; see also Rosenfeld, supra note 12; Smalek, supra note 12; Living Off Tips, supra note 12.
Robert Turner, Making Title VII Law and Policy: The Court’s Sexual Harassment Jurisprudence, 22 HOFSTRA LAB. & EMP. L.J. 575, 578-80
(Spr. 2005).
Page 18
See, e.g., Corne v. Baush & Lomb, Inc., 390 F. Supp. 161, 164 (D. Ariz. 1975) (determining that a ruling that sexual harassment was actionable
under Title VII “would be a potential lawsuit every time any employee made amorous or sexually oriented advances toward another,” a result
which could only be avoided by hiring “asexual” workers); see also Tomkins v. Public Service Electric & Gas Co., 422 F. Supp. 553, 556 (D. N.J.
1976) (holding that sexual harassment was not sex discrimination under Title VII since the federal law seeks to “make careers open to talents
irrespective of race or sex” and is “not intended to provide a federal tort remedy” for sex-based conduct at the office), rev’d 568 F.2d 1044 (3d
Cir. 1977) (determining that an employee’s claim that her job depended on her submission to a supervisor’s sexual advances did state a cause
of action for sex discrimination under Title VII).
Turner, supra note 37, at 580-84.
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). In Meritor, a bank employee alleged that she was forced to have sex with her direct
supervisor and bank branch manager 40 or 50 times. Id. at 60. She also alleged that the manager touched her private parts and exposed
himself to her, and that he kept telling her that she was indebted to him because he was responsible for her employment. Id.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 19, 23 (1993) (acknowledging that sexual harassment can take a variety of forms, from daily
inappropriate comments to a single incident of sexual assault).
Id. at 22.
Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).
Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 77 (1998) (confirming that Title VII bans same-sex sexual harassment driven by
employee’s nonconformity with gender stereotypes).
See, e.g., Nichols v. Azteca Rest. Enters., 256 F.3d 864, 869-70 (9th Cir. 2001) (reversing grant of summary judgment in favor of employer
on sexual harassment claims where there was evidence that male coworkers frequently taunted another employee because of his effeminate
mannerisms, referring to him as “she” and “her,” mocking him for walking “like a woman,” and calling him a “faggot” and “female whore”); see
also Rene v. MGM Grand Hotel, 305 F.3d 1061, 1064, 1066-67 (9th Cir. 2002) (reversing grant of summary judgment in favor of employer where
there was evidence that male coworkers touched plaintiff “like they would to a woman,” grabbed him in the crotch and poked their fingers in his
anus through his clothing).
On November 7, 2013, for the first time in history, the U.S. Senate voted to approve the Employment Non-Discrimination Act (ENDA), federal
legislation that would outlaw workplace discrimination on the basis of sexual orientation or gender identity. Amanda Terkel, ENDA Vote: Senate
Votes to Outlaw LGBT Workplace Discrimination, HUFFINGTON POST (Nov. 7, 2013, 2:17 AM), http://www.huffingtonpost.com/2013/11/07/
enda-vote_n_4228502.html. Unfortunately, earlier this year, House Republicans voted against even considering ENDA. Dave Jamieson, Busy
Day for House GOP: Blocks Bills on Minimum Wage, Equal Pay, LGBT Rights, Mine Safety, HUFFINGTON POST (Apr. 9, 2014, 4 :59 PM),
Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
The creation of this “avoidable consequences” defense to damages and liability for employers in the Faragher/Ellerth rulings (and the lower
federal courts’ subsequent interpretation of the scope of that defense) has since been viewed by many as an unequivocal sign that the Supreme
Court and lower federal courts are increasingly deferential to institutionalized business and “file cabinet compliance,” which in turn erects new
barriers to plaintiffs’ ability to hold their employers accountable in workplace harassment cases. See Anne Lawton, Operating in an Empirical
Vaccum: The Ellerth and Faragher Affirmative Defense, 13 COLUM. J. GENDER & L. 197, 212-16 (2004); see also Samuel R. Bagenstos, The
Structural Turn and Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1, 24-26 (2006); Susan Bisom-Rapp, An Ounce of Prevention Is a Poor
Substitute for a Pound of Cure: Confronting the Developing Jurisprudence of Education and Prevention in Employment Discrimination Law, 22
Berkeley J. Emp. & Lab. L. 1, 4-6, 27-28 (2001); David Sherwyn et al., Don’t Train Your Employees and Cancel Your ‘1-800’ Harassment Hotline: An Empirical Examination and Correction of the Flaws in the Affirmative Defense to Sexual Harassment Charges, 69 Fordham L. Rev. 1265,
1266-67 (2001); Joanna L. Grossman, The First Bite is Free: Employer Liability for Sexual Harassment, 61 U. PITT. L. REV. 671, 708-15 (2000).
See, e.g., Lawton, supra note 48, at 217-223, nn. 100-04.
This trend can be explained, at least in part, by federal courts frequently construing anti-harassment and other civil rights laws as merely banning
discrimination without intruding upon employer discretion in structuring and regulating the workplace. Id. at 199. In other words, federal courts
generally resist inserting themselves into how employers set up their workplaces and oversee and “police” daily conduct in their workforce.
Bagenstos, supra, note 48, at 24-26. But by failing to do so, courts overlook the reticence of victims to report harassment, especially where
perpetrated by a supervisor. In our amicus brief in Faragher, ERA, the National Women’s Law Center, and Women’s Legal Defense Fund cited
several studies that show the low rate at which victims report sexual harassment, and we argued that the Court should create and impose
liability standards that acknowledge the reticence of victims to report harassment, especially where the perpetrator is their supervisor. Brief of
Amici Curiae Nat’l Women’s Law Ctr. et al., Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (No. 97-282); cf. E.E.O.C. v. Bud Foods, LLC,
5:04CV156, 2006 U.S. Dist. LEXIS 54972, at *60 (W.D.N.C. Aug. 7, 2006) (finding that plaintiff’s fear of retaliation did not excuse her “failure to
follow the complaint procedures in the Policy”); Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001) (“A generalized fear of
retaliation does not excuse a failure to report sexual harassment.”); Dowdy v. North Carolina, 23 F. App’x 121, 123-24 (4th Cir. 2001) (affirming
trial court order granting employer motion for summary judgment, explaining that plaintiff’s broad fear of retaliation did not excuse her failure
to follow her employer’s policy and lodge her harassment complaint with the designated persons); Watkins v. Prof’l Sec. Bureau, No. 98-2555,
1999 U.S. App. LEXIS 29841, at *19-20 (4th Cir. 1999) (affirming trial court order granting employer motion for summary judgment and
concluding that plaintiff’s “embarrassment and fear of reprisal” did not excuse her failure to report “promptly and fully” according to her
employer’s policy), cert. denied, 529 U.S. 1108 (2000).
See Lawton, supra note 48.
Page 19
Id. at 227 (citing research “indicat[ing] that women holding jobs in fields dominated by men, construction or police work, for example, are more
likely to encounter harassing behavior because they work in male-defined jobs in a male-dominated work environment.”).
Rebecca K. Lee, Pink, White and Blue: Class Assumptions in the Judicial Interpretations of Title VII Hostile Environment Sex Harassment, 70
BROOK. L. REV. 677, 678 (2005).
Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1536 (1995).
Id. at 1535-36.
Id. at 1538.
See, e.g., McNeil v. Kennecott Holdings, 381 F. App’x 791, 795 (10th Cir. 2010) (determining that there was no hostile work environment harassment because Kennecott’s mining operation was the sort of “blue collar environment where crude language is commonly used”); Shepherd
v. Slater Steels Corp., 168 F.3d 998, 1008 (7th Cir. 1999) (noting that an appropriate sensitivity to social context will enable courts and juries to
distinguish between “simple teasing” and “roughhousing”); Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir. 1997) (opining that lewd behavior
and language are “commonplace” in certain circles, and more often than not, are simply expressions of “animosity” or “juvenile provocation”);
Vaughn v. Pool Offshore Co., 583 F.2d 922, 924-25 (5th Cir. 1982) (concluding that hazing and practical joking should be viewed realistically as
“male interaction” and not “atypical” of the work environment).
See, e.g., Bagenstos, supra note 48.
See infra Chapter Three.
Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir. 1999) (holding that proving a long-standing or traditional hostility toward women in
the workplace will not excuse hostile work environment sexual harassment); see also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798,
810 (11th Cir. 2010) (finding ample evidence of gender-specific harassment and explaining that Title VII does not allow “boorish employers a
free pass to discriminate against their employees specifically on account of gender just because they have tolerated pervasive but indiscriminate
profanity as well”); O’Rourke v. City of Providence, 235 F.3d 713, 735 (1st Cir. 2001) (rejecting the notion that a woman who chooses to work in
male-dominated trades relinquishes her right to work in an environment free from sexual harassment); Conner v. Schrader-Bridgeport Int’l, Inc.,
227 F.3d 179, 194 (4th Cir. 2000) (dismissing the idea that a prevailing workplace culture can excuse discriminatory actions); Jackson v. Quenx
Corp., 191 F.3d 647, 662 (6th Cir. 1999) (reversing district court decision that condoned continuing racial slurs and graffiti on the grounds that
they occurred in a blue-collar environment).
See Robert L. Allen, Stopping Sexual Harassment: A Challenge for Community Education, in RACE, GENDER AND POWER IN AMERICA 129,
135 (Anita Faye Hill & Emma Coleman Jordan eds. 1995).
See Kathryn Abrams, Title VII and the Complex Female Subject, 92 MICH. L. REV. 2479, 2498-2502 (1995). While Abrams acknowledges that
“[o]ne strength of Title VII has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject
groups,” and “[t]his flexibility is particularly evident with respect to women,” she also critically acknowledges that Title VII enforcement has faced
challenges in responding to accounts of discrimination “that emphasize the complex, intersectional character of the female subject and the
variability of the discriminatory animus that subject encounters.” Id. at 2479-81.
Clay v. BPS Guard Services, No. 92 C 2127, 1993 U.S. Dist. LEXIS 8399, at **4, 9 (N.D. Ill. June 18, 1993); see also Abrams, supra note 62,
at 2498-2502, for thoughtful analysis of the court’s treatment of the intersectional nature of claims in Clay.
See Abrams, supra note 62, at 2498-2502 (discussing the effects of this forced compartmentalization and analyzing discrimination cases
involving intersectional claims of race and sex harassment).
See, e.g., Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-1416 (stating that black female plaintiffs in race harassment and sex harassment
claims should be able to “aggregate evidence of racial hostility with evidence of sexual hostility”); Stingley v. Ariz., 796 F. Supp. 424, 428 (D. Ariz.
1992) (same); see also Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1032 (5th Cir. 1980) (non-harassment discrimination case
concluding that “discrimination against black females [could] exist even in the absence of discrimination against black men or white women”);
Lam v. University of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994) (“Where two bases for discrimination exist, they cannot be neatly reduced to
distinct components.”); Olmstead v. L.C., 527 U.S. 581, 598 n.10 (1999) (citing Jefferies with approval); cf. Lewis v. Bloomsburg Mills, Inc.,
773 F.2d 561, 564-66 (4th Cir. 1985) (upholding district court’s refusal to redefine a certified class of African-American women to include
African-American men when the evidence demonstrated that the employer discriminated against African-American women to a greater degree
than it discriminated against African-American men, and recognizing the class of African-American women as “special victims” of a more general
racial animus).
See Faragher, 524 U.S. 775; Ellerth, 524 U.S. 742.
Vance v. Ball State University, 133 S. Ct. 2434 (2013).
In 1999, the year after Faragher and Ellerth were decided, the EEOC published an Enforcement Guidance based on those decisions, noting that
in those cases the Supreme Court reasoned that “vicarious [or automatic] liability for supervisor harassment is appropriate because supervisors
are aided in such misconduct by the authority that the employers delegated to them.” See U.S. Equal Emp’t Opportunity Comm’n, Enforcement
Guidance on Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999), http://www.eeoc.gov/policy/docs/harassment.html.
Based on this reasoning, the EEOC concluded that the “authority must be of a sufficient magnitude so as to assist the harasser explicitly or
implicitly in carrying out the harassment” and “[t]he determination as to whether a harasser had such authority is based on his or her job function
rather than job title (e.g., ‘team leader’) and must be based on the specific facts.” Id. (emphasis added). Accordingly, the Commission determined that an individual qualifies as an employee’s “supervisor” if “the individual has authority to undertake or recommend tangible employment
Page 20
decisions affecting the employee; or the individual has authority to direct the employee’s daily work activities.” Id. The EEOC also acknowledged
that an individual may qualify as a “supervisor” even when that employee does not have actual authority over the victimized employee, if the
victimized employee reasonably believed that the harasser had this power, such as when the chain of command is unclear or when an employee
is delegated broad powers that could significantly influence employment decisions regarding other employees. Id.
See, e.g., Mack v. Otis Elevator Co., 326 F. 3d 116, 126-127 (2d Cir. 2003); see also Dawson v. Entek Int’l, 630 F. 3d 928, 940 (9th Cir. 2011).
Vance, 133 S. Ct. at 2443.
Tamayo, supra note 26, at 3.
See Fatima G. Graves et al., Nat’l Women’s Law Ctr., Reality Check – Seventeen Million Reasons Low-Wage Workers Need Strong Protections
from Harassment (2014).
In recent years, the EEOC has brought many enforcement actions on behalf of sexual harassment victims in the janitorial industry, most notably
a class action lawsuit against ABM Industries Incorporated, the same national building services contractor that employed Maria. In that lawsuit,
the EEOC represented a class of mostly monolingual Latina janitors in the Central Valley of California who had been sexually harassed by their
supervisors and co-workers; one of them was raped on the job. ABM agreed to pay $5.8 million to settle the case. See E.E.O.C. v. ABM Indus.
Inc., 261 F.R.D. 503 (E.D. Cal. 2009); see also EEOC v. Allstar Fitness, LLC, CV-10-1082, 2011 WL 87420 (W.D. Wash. Jan. 10, 2011) (case
settled for $150,000 where Latina janitor and mother of three alleged she was forced to have sex with her supervisor at the Seattle-based health
club where they worked and was threatened with termination if she refused to have sex or reported the activity to management; when she finally
said that she would not have sex with him, he fired her).
Recent EEOC data reflects that almost 37 percent of EEOC sexual harassment charges filed by women came from the restaurant industry,
even though less than 7 percent of women work in that industry. See Rest. Opportunities Ctrs. United, supra note 12, at 7. A review of the last
four years of EEOC sexual harassment settlements and verdicts in the restaurant industry found over 25 major cases resulting in $15.4 million
in settlements and damages awarded to over 219 women workers. Id. at 29. Eleven of these cases involved hostile work environment sexual
harassment, and 50 percent of the cases involved some form of sexual assault. Id. Eighty-eight percent of the cases involved abuse and
harassment by management. Id.
Tamayo, supra note 26, at 3; see also sources cited at supra note 12.
Tamayo, supra note 26, at 1, 3.
As Justice Ginsburg notes in her powerful dissent in Vance, “[w]hen employers know that they will be answerable for the injuries a harassing
jobsite boss inflicts, their incentive to provide preventative instruction is heightened.” 133 S. Ct. at 2461 (Ginsburg, J., dissenting).
See the Fair Employment Protection Act, S. 2133, H.R. 4227, 113th Cong. (2014).
U.S. Equal Emp’t Opportunity Comm’n, Strategic Enforcement Plan FY 2013-2016, http://www.eeoc.gov/eeoc/plan/sep.cfm (last visited July
29, 2014).
Indeed, 70 percent of poll respondents who reported being sexually harassed never reported it. Berman and Swanson, supra note 32; see also
A&C Statistical Reports, supra note 30.
See, e.g., Louise F. Fitzgerald et al., Why Didn’t She Just Report Him: The Psychological and Legal Implications of Women’s Responses to
Sexual Harassment, 51 J. SOC. ISSUES 117, 123-24 (1995); Jane Adams-Roy & Julian Barling, Predicting the Decision to Confront or Report
Sexual Harassment, 19 J. ORG. BEHAV. 329, 334 (1998) (describing a study finding that women who reported sexual harassment through formal organizational channels experienced more negative outcomes than those who did nothing); Theresa M. Beiner, Using Evidence of Women’s
Stories in Sexual Harassment Cases, 24 U. ARK. LITTLE ROCK L. REV. 117, 124-25 (2001) (“[M]any plaintiffs’ lawyers would tell you that once
an employee complains about discrimination on the job, he or she can usually consider that employment relationship over.”); Anne Lawton,
Between Scylla and Charybdis: The Perils of Reporting Sexual Harassment, 9 U. PA. J. LAB. & EMP. L. 603, 605 (2007) (“Reporting Professor
White [to university officials] stopped the [sexual] harassment, but also generated a pattern of conduct, some of which was clearly retaliatory in
nature, which made my life as a tenure-track faculty member substantially more difficult than it had been prior to reporting.”).
Tamayo, supra note 26, at 7.
William R. Tamayo, Retaliation in Harassment Cases and Threats to Deter Reporting 12-17 (June 2013), http://www.americanbar.org/content/
Id. at 2 (emphasis in original).
University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013).
Id. at 2533.
Mark Bittman, Fast Food, Low Pay, N.Y. TIMES, July 25, 2013 at A23, available at http://opinionator.blogs.nytimes.com/2013/07/25/fast-foodlow-pay/?_r=0.
Page 21
Annie-Rose Strasser, Why the Minimum-Wage Is a Women’s Issue, in Three Charts, THINKPROGRESS (Feb. 13, 2013, 5:30 P.M.),
See, e.g., Rest. Opportunities Ctrs. United, supra note 12; Living Off Tips, supra note 12.
See Living Off Tips, supra note 12.
Annie Lowrey, Raising Minimum Wage Would Ease Income Gap but Carries Political Risks, N.Y. TIMES (Feb. 13, 2013),

See the Fair Minimum Wage Act of 2013, H.R. 1010, 113th Cong. (2013), available at http://beta.congress.gov/bill/113th-congress/housebill/1010; see also The Fair Minimum Wage Act, Democrats Committee on Education and the Workforce, http://democrats.edworkforce.house.
gov/issue/fair-minimum-wage-act (last visited June 18, 2014).
See Nat’l Conference of State Legislatures, 2014 Minimum Wage by State, http://www.ncsl.org/research/labor-and-employment/state-minimum-wage-chart.aspx (last visited July 15, 2014).
100 Id.; see also Nat’l Conference of State Legislatures, 2013 State Legislation on Minimum Wage, http://www.ncsl.org/research/labor-and-employment/2013-state-minimum-wage-legislation.aspx (last visited July 15, 2014).
101 Steven Greenhouse, Fighting against Wretched Wages, N.Y. TIMES (July 27, 2013), available at http://www.nytimes.com/2013/07/28/sunday-review/fighting-back-against-wretched-wages.html.
102 Kirk Johnson, Seattle Approves a $15 Minimum Wage, Setting a New Standard for Big Cities, N.Y. TIMES (June 2, 2014), available at

103 The White House Summit on Working Families, U.S. Dep’t of Labor, http://www.dol.gov/wb/workingfamilies/ (last visited June 18, 2014)
(announcing the Summit).
Page 22
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Student Response 1
– This week’s reading titled Discussion Favoritism Clarence Thomas was an excerpt
from the EEOC’s Policy Guidance on Employer Liability under Title VII for Sexual
Favoritism.1 The full version of the policy on the EEOC’s website has footnotes that
go into more detail on the various cases mentioned in the reading. In the following
referenced cases, Benzies v. Illinois Dept. of Mental Health, Bellissimo v.
Westinghouse Electric, Miller v. Aluminum Co. of America, and DeCintio v.
Westchester County Medical Center, even though it was proven that sexual
favoritism had resulted in preferential treatment towards certain employees, the
courts decreed that no violation of Title VII sexual discrimination had occurred. In
the Miller case, one of the judges wrote “Favoritism and unfair treatment, unless
based on a prohibited classification, do not violate Title VII.”2
Week 2s PowerPoint slide on Consent and Offensive Conduct said “If two employees
dated and engaged in consensual sex, this would not be sexual harassment. If one of the
two then wanted to terminate the relationship, and the other used the unequal relative
terms and conditions of employment of the work place to further the relationship, this
would be sexual harassment in the workplace.” This made me think about the fact that
when subordinates are receiving preferential treatment due to a consensual
relationship with a superior, there is no violation of Title VII, and the subordinate is
probably happy with the arrangement. But what happens when the relationship ends?
The subordinate is no longer receiving preferential treatment, and probably unhappy.
Employers and supervisors need to be especially careful in those situations.
An article titled “Office Romances Can Get You Sued” warns employers that “In the
event an office romance ends badly … the most common downside is the chance that an
employee will file a claim of harassment, sexual or otherwise”.3 In reference to the
case Clark v. Cache Valley Electric Company, which ruled that preferential treatment to a
single female employee who was his paramour was not discrimination against Clark as a
male, one law firm cautions “While this case is favorable to employers, they should still
be aware that liability may result when the supervisor’s relationship with the paramour
sours, particularly where the subordinate accuses the supervisor of engaging in
harassment or discrimination prohibited by Title VII.”4 An article on workforce.com
related to sexual favoritism, though stating that “special treatment is permissible as long
as it is not based on an impermissible classification” goes on to warn that “lots can go
wrong when an office romance goes south. For example, what if, after the relationship
ends, one says to the other, “I can do something to your job!”? Or, worse, the threats
could be followed by extortion or blackmail.”5 The Society for Human Resources, in an
article recommending employers have clear anti-harassment policies and reporting
procedures, asks “What happens when a consensual office romance ends?” The article
also points out “What may be acceptable one day may not be acceptable the next day.” 6
1 https://www.eeoc.gov/policy/docs/sexualfavor.html
2 https://law.justia.com/cases/federal/district-courts/FSupp/679/495/1529472/Miller v.
Aluminum Co. of America

Office Romances Can Get You Sued

5 https://www.workforce.com/news/the-difference-between-sexual-discrimination-andsexual-favoritism
6 https://www.shrm.org/resourcesandtools/legal-and-compliance/employmentlaw/pages/when-workplace-relationships-lead-to-harassment.aspx
Student Response 2
Hello class!
In this week’s reading I was surprised by something that I read in the “Moving Women
Forward” article. I was reading about Maria Bojorquez, who was sexually harassed and
assaulted by her immediate supervisor and ended up winning a law suit for $812,000,
and I read that “the outcome of Maria’s sexual harassment claim may have been
different if adjudicated under today’s Title VII test governing liability for supervisor
harassment” (11). A supreme court decision, Vance v. Ball State University, changed
the definition of a supervisor from anyone in charge of another person to “only those
with the actual authority to hire and fire subordinates” (11).
I was shocked to learn about this change because it seems like such an obvious step in
the wrong direction. By changing the definition of a supervisor the legal system is
placing far less responsibility on people who can still exert power over others. There are
often many people in the chain of command in an organization who are in charge of
others but are not in charge of hiring or firing them. This change gives the low-level
supervisors a free pass to harass the workers underneath them, but it takes away the
rights of those workers to sue them. Why would the supreme court decide to take away
responsibility from low-level supervisors when it is clear that increased responsibility
and danger of punishment is a good way to prevent sexual harassment?
Student Response 3
Moving Women Forward by Equal Rights Advocates really opened my eyes to the lack of equity
and support women receive within their jobs. I was introduced to the idea of women being
discriminated against for being pregnant as well as being a mother. This idea is absolutely
baffling to me as men are fathers and they are not mistreated or not given a promotion
because of it. It was interesting to reevaluate Title VII of the Civil Rights Act of 1964 fifty years
after it was passed. As many things have changed in the world, the beginning of this reading
made me think it may be time to amend Title VII due to progression and change. It was
unsettling to see some court cases interpret Title VII in a negative way where the victim did not
receive justice. What stood out to me was the case that got it right, Williams v. General Motors
Corp of 1999 as the courts stated “women working in the trades do not deserve less protection
from the law than women working in a courthouse” (Equal Rights Advocates, p. 9). This case
towards the labor factories that women worked in and there was nothing in place to protect
the few women from the many men that …
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