The delay in the Supreme Court interpretation of Title VII of the Civil Rights Act 1964 may have occurred for a number of reasons. The major focus of the Civil Rights Act 1964 and its associated political movement was based around race rather than gender. Whilst the women’s rights movement from the 1960s onwards was less concerned about Title VII as a means to achieving their goals of gender equality before the law and more intent on using the 14th Amendment to the United States Constitution to broaden and deepen gender rights whilst much political organizing revolved around the adoption of an ERA to the United States Constitution.
Title VII was largely ignored in favour of the other two paths. Furthermore the Supreme Court in its judgement in Meritor Savings Bank in 1986 followed the cue of the Equal Employment Opportunity Commission which had published guidelines in 1980 which had included sexual discrimination under the ambit of Title VII. The Supreme Court needed to be nudged in the direction of developing Title VII for sexual discrimination cases from the administrative branch as well the evolving jurisprudence of lower courts.
This meant a 20 year delay in the evolution of sexual harassment jurisprudence at the Supreme Court level. As has been demonstrated, Title VII and its interpretation by the Supreme Court whilst having the potential and scope to provide protection for women in the workplace have not achieved the desired results at the grassroots level.
A further example of how far lower courts can move away from clear Supreme Court directions on Title VII can be seen in the Seventh Circuit case of Baskerville v Culligan International Co 1995 in which Judge Posner set his own standard for applying Title VII in sexual harassment cases as requiring “hellish” conduct in the workplace. Nowhere had either Title VII or the Supreme Court’s interpretation mentioned the term “hellish” in measuring discrimination or establishing a legal standard (Keller and Tracy, 2008, 256).
An Equal Rights Amendment to the United States Constitution would help clarify the current ambiguity surrounding standards of sexual discrimination which are apparent in the jurisprudence of both Title VII of the Civil Rights Act 1964 and the 14th Amendment to the Constitution. An ERA would favour the victims of sexual harassment enforcing clearer principles upon lower courts rather than the vague and pliable interpretations and formulations which are currently prevalent. Ninety years after the movement advocating an Equal Rights Amendment to the United States Constitution was started it has still not been achieved.
It is debatable whether the current political climate would be conducive to a revival of the movement, however its desirability is clear given the increasing role of women in spheres of activity from which they were previously excluded. The Supreme Court has interpreted the 14th Amendment to the Constitution in a way which seeks to remedy historical discrimination whilst stopping short of a principle of universal equality which allows for some elements of differentiation between the sexes at an administrative level.
The Supreme Court was slow to interpret Title VII of the Civil Rights Act 1964 in the context of sexual harassment of women in the workplace and its interpretations have not been well applied at the level of lower courts. Hence both Title VII and the 14th Amendment both suffer from levels of ambiguity which can only be resolved by the revival of the movement for an Equal Rights Amendment to the Constitution which would necessarily have the legitimacy of political will behind it.
An ERA would result in better legal outcomes for women facing harassment in workplaces around the United States and Courts would be forced to apply a higher legal standard in such cases than the standards currently devised by the Supreme Court (Baldez, Epstein and Martin, 2006, 282). This would avoid the strange outcomes and miscarriages of justice witnessed in Duncan and Mitchell. Furthermore companies would be encouraged to better manage office environments and not tolerate sexual harassment which drives women out of the workplace.An ERA is required for deterrence amongst perpetrators of sexual harassment and the protection of women in the workplace.
Baldez, L. , Epstein, L. , Martin, A. (2006) Does the US Constitution need an Equal Rights Amendment? The Journal of Legal Studies, 35, 243-283. Keller, E. , Tracy, J. (2008) Hidden in plain sight: achieving most just results in hostile work environment sexual harassment cases by re-examining Supreme Court precedent. Duke Journal of Gender law and Policy, 15, 247-265.