Journal Article

LABORATORIES OF DEMOCRACY: STATE LAW AS A PARTIAL SOLUTION TO WORKPLACE HARASSMENT

McGinley, Ann C

2023

Overview

STRUCTURAL, LEGAL, AND POLITICAL FAILURES Despite the recent public awakening concerning both sexism and racism in our society,1 the federal courts have systematically chipped away at employees' civil rights under Title VII of the 1964 Civil Rights Act to be free of both sexual and racial harassment at work.2 Since the 1970s, lower federal courts have recognized hostile work environments caused by race and sex as violative of Title VII of the 1964 Civil Rights Act.3 In 1986, the U.S. Supreme Court concluded in Meritor Savings Bank v. Vinson that sexually hostile work environments constitute sex discrimination prohibited by Title VII.4 But despite some progressive Supreme Court opinions since then,5 the Court has also decided cases that narrow plaintiffs' rights to be free of employment discrimination under various federal statutes.6 Moreover, generally, federal district courts and the U.S. Courts of Appeals have on many occasions signaled their lack of interest in protecting the rights of individuals to be free of illegal harassment and other illegal discrimination.7 This anti-plaintiff orientation results not only from substantive doctrines applied to the interpretation of Title VII, most of which do not appear in the text of the civil rights acts, but also from the application of procedural rules to Title VII and other employment discrimination cases that has unduly reduced the success rates of plaintiffs.8 Empirical research confirms an \"anti-plaintiff effect\" in employment discrimination cases at all stages of litigation in federal courts.9 In federal district courts and in the U.S. Courts of Appeals, employment discrimination plaintiffs suffer a significant disadvantage compared to non-employment discrimination plaintiffs in federal court and employment discrimination defendants.10 For example, one study found that although plaintiffs in civil cases other than discrimination cases had a success rate of 51%, plaintiffs in employment discrimination cases won at a rate of only 15%.11 Moreover, while the research shows that both judges and juries find for plaintiffs less frequently in employment discrimination cases than cases alleging other violations, plaintiffs in employment discrimination cases do better with juries than in bench trials.12 Considering the low rate of success that employment discrimination plaintiffs have at the trial level, it is even more remarkable that the federal courts of appeals reverse plaintiffs' victories at a considerably higher rate than they reverse defendants' employment discrimination victories.13 Additionally, lower courts have created substantive doctrines out of whole cloth that makes it nearly impossible for plaintiffs to succeed.14 These doctrines, which former federal district court judge Nancy Gertner calls \"loser's rules\" and \"heuristics,\"15 are applied unthinkingly by other district courts, citing the original district courts that use these made-up doctrines for precedent. The Trump administration appointed to the Supreme Court three Justices with records that promise little protection for workers from sexually and racially hostile environments,25 one of whom had a serious allegation of sexual assault against him.26 The alignment on the Supreme Court is currently six-three, conservatives to liberals, with at least five of the six being extremely conservative. Besides Justice Kavanaugh, the Trump appointee alleged to have committed sexual assault as a teenager, Justice Thomas, who has been on the Court since 1991, allegedly sexually harassed his female subordinates when he was the EEOC. Chairman and as head of the Department of Education.27 We cannot expect this bench to protect workers from harassment sufficiently. [...]there is little hope that the lower federal courts will protect employment discrimination plaintiffs more than they have in the past. The combination of rights-limiting substantive decisions in this area of Title VII law with procedural mechanisms that have the effect, if not the design, of curtailing plaintiffs' rights to jury trials has resulted in an ever-encroaching diminishment of protection of victims who suffer harassment at work. [...]even a generous interpretation of Title VII would impose significant limitations on civil rights in the workplace, especially for the most vulnerable Americans.

• Publisher: American University
• Subject: Civil rights / Civil Rights Legislation / Court Litigation / District courts / Employees / Employers / Employment discrimination / Federal Courts / Judges & magistrates / Juries / Law / Race / Racial harassment / Sex crimes / Sex discrimination / State court decisions / Success / Trials