In Mitchell v Pope 11th Circuit 2006 Donya Mitchell alleged that she was sexually harassed in the County Sheriff’s Department by a fellow officer Michael Overby. The 11th Circuit Court ruled in favour of the defendant that the behaviour of Overby did not meet the test for ‘severe or pervasive’ conduct constituting sexual harassment. Donya Mitchell described 16 occasions in which she felt sexually harassed ranging from verbal abuse, to physical approaches, and vulgar and obscene behaviour.
Mitchell alleged harassment both within and outside the workplace, at hotels on work trips and stalking at her family home. The 11th Circuit Court misapplied the Harris test finding that the totality of Overby’s behaviour did not reach the threshold of sexual harassment. Furthermore the Court described Overby’s behaviour as ‘horseplay’ drawing on the Supreme Court judgement in Oncale, however misapplying it in this case to a male-female relationship rather than a male-male relationship which it was originally applied to.
Sixteen separate incidents were not taken in totality but measured against a checklist individually and found deficient, leading to a lack of justice for Donya Mitchell. In Duncan v General Motors Corp 8th Circuit Court 2002 Diana Duncan faced a similar miscarriage of justice. Diana Duncan was an employee of General Motors Corporation between 1994 and 1997. She was forced to resign from her position due to the sexual harassment of a co worker.
The harassment included unwelcome propositions, exposure to pornography on office computers, differential adverse treatment compared to other workers and retaliatory behaviour and accusations. When the defendant’s sexual advances were rejected she was accused of being a man-hater and ostracised in the workplace. The defendant had even planned to have Duncan ‘arrested’ at a charity function at the office.
Despite Duncan winning the case initially, the Eight Circuit Court overturned the judgement of the lower court claiming that Title VII was not aimed at purging a workplace of vulgarity in its entirety (Keller and Tracy, 2008, p. 258). The Court cited other cases of more egregious levels of sexual harassment which did not meet the standard for sexual discrimination. However the Court misapplied the tests for subjective and objective harassment finding that Duncan met the subjective test but that the action of the defendant did not meet the objective test.
The test of ‘severe and pervasive’ behaviour to constitute sexual harassment is sufficiently vague to allow for misapplication by lower courts which often leads to absurd results in favour of the defendant despite ample evidence of a wide range, scope and intensity of sexually harassing behaviour. This only further highlights the inadequacy of Title VII of the Civil Rights Act 1964. Only an ERA which addresses the issue of sexual harassment of women in more explicit terms can aim to reduce ambiguity and ensure punishment of transgressors.