Elisabeth A. Keller & Judith B. Tracy, “Hidden in Plain Sight: Achieving More Just Results in Hostile Work Environment Sexual Harassment Cases by Re-Examining Supreme Court Precedent”

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The abstract:

Lower federal courts often fail to provide plaintiffs in sexual harassment cases the relief intended by Title VII of the Civil Rights Act of 1964 and mandated by the Supreme Court when it recognized the cause of action twenty years ago. There is little doubt that sexual harassment in the workplace persists. However, lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers jury instructions and guidelines to judges that reflect what the Supreme Court intended.

A female deputy sheriff alleged that, in violation of Title VII of the Civil Rights Act of 1964, she was sexually harassed by another officer in the County Sheriff’s Department where they worked.1 The co-worker’s harassing behavior included, among other acts, his comment to the deputy that “you can just walk into the room and I get an erection;” his calling the deputy a “frigid bitch” on two occasions, once when he tried to kiss her after a department Christmas party, and another time when she refused to join him in a hot tub at a hotel where they both were attending a conference; his telling her that “her ass sure does look fine;” and his descriptions to her and others of a golf tournament where the caddies were strippers and they were directed “to place golf balls into their vaginas and to squirt them onto the green.”2

The federal district court granted summary judgment for the defendants. In 2006, the Court of Appeals for the Eleventh Circuit affirmed the lower court’s [*pg 248] decision, stating that the conduct was not sufficiently severe or pervasive to constitute actionable sexual harassment.3

Read the article here!

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