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What counts as discrimination?

Recent news headlines have focused on allegations of sexual harassment against film tycoon Harvey Weinstein. While the allegations are troubling, they also provide us with an opportunity to consider whether employment discrimination law would properly respond to them. In the United States, the answer is not as clear as one might hope.

Even though many of the women claim that Mr. Weinstein’s actions related to work, American employment discrimination law may not cover these women. Title VII is the federal statute that prohibits sex discrimination in employment in the United States. However, the statute has a major loophole: it does not protect independent contractors, interns, or most volunteers. The courts have interpreted Title VII as limited to the context of employers and their applicants, current employees, and former employees. If a person falls outside of these categories, Title VII does not protect them from sex discrimination, even if that discrimination is occurring in a scenario that we would otherwise classify as work. Individual state laws may provide some protection, but federal law does not.

It is more surprising to learn that even if some of the women in the Weinstein case fell within Title VII’s protections, they still might not be able to prove sexual harassment. The American courts have developed a framework for evaluating harassment claims that requires the harassment to be severe or pervasive. While a single sexual assault would qualify the worker for protection, courts often dismiss harassment cases where men repeatedly ask women out on dates or for sexual favors, as this behavior is deemed not to meet the requirements stated above. Courts have also dismissed cases where women have presented evidence that men have groped their breasts or buttocks. When courts dismiss these cases, they reason that the conduct is not serious enough to constitute harassment.

Harvey Weinstein at the 2010 Time 100 Gala by David Shankbone. CC BY 3.0 via Wikimedia Commons.

This doctrine also affects retaliation cases. Some courts have held that when a woman complains about harassment and then faces a negative consequence, federal law does not protect her. Some courts hold that if the harassment that generated the complaint is not serious enough, the woman does not receive protection from retaliation when she complains about it. Courts dismiss these retaliation cases even though the discrimination statutes rely on worker complaints as an important part of their remedial scheme.

American employment discrimination law is growing increasingly out of touch with not only the words of the statutes designed to protect workers, but also with the expectations of what reasonable workers believe about what counts as unlawful employment discrimination. Most Americans assume that an employee alleging workplace discrimination faces the same legal system as other litigants. After all, we do not usually think that legal rules vary depending upon the type of claim brought. That assumption is wrong.

Over the course of the last half century, employment discrimination claims have come to operate in a fundamentally different legal system than other claims. It is in many respects a parallel universe, one in which the legal system systematically favors employers over employees. A host of procedural, evidentiary, and substantive mechanisms serve as barriers for employees, making it extremely difficult for workers to access the courts. These mechanisms make it fairly easy for judges to dismiss a case prior to trial.

Many Americans are unaware of how the system operates. Those alleging employment discrimination have fared increasingly poorly in American courts. In recent years, judges have dismissed scores of cases in which workers presented evidence that supervisors referred to them using racial or gender slurs. In one federal district court, judges dismissed more than 80 percent of the race discrimination cases filed over a year. If we are serious about ending workplace discrimination, we must work together to make sure the laws actually protect workers. One easy place for federal courts to start is to re-examine the severe or pervasive doctrine.

Featured image credit: Justitia by FrankMagdelyns1. CC0 Public domain via Pixabay.

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