The difficulty for women in gaining justice in sexual harassment cases is not so much due to a deficiency in the Title VII provision in the Civil Rights Act of 1964, or Supreme Court interpretation of the legislation, but in the inability of lower courts to adequately implement Supreme Court jurisprudence. In Meritor Savings Bank v Vinson 1986 the Supreme Court held that Title VII of the Civil Rights Act 1964 which prohibits sex discrimination gives cause for action in the case of sexual harassment which creates a hostile or abusive work environment (Keller and Tracy, 2008, p.
250). The Court quoted from the guidelines issued by the Equal Employment Opportunity Commission in 1980 which explicitly mentioned sexual harassment as a form of sexual discrimination in Title VII. The Court stated that lower court jurisprudence had already established sexual harassment as an offence at par with racial discrimination (Keller and Tracy, 2008, p. 250). The Court created a standard of ‘severe or pervasive’ behaviour to establish sexual discrimination. Further guidance was given in determining ‘severe or pervasive’ behaviour.
The Court instructed that the situation should be judged in totality, in context and keeping in mind any history of sexual harassment in a workplace. The Court further developed the standard seven years later in Harris v Forklift Systems Inc 1993 in which it stated that ‘discriminatory intimidation, ridicule and insult’ would provide for a violation of Title VII. The Court further refined the standard introducing both subjective and objective abusive behaviour to measure the change in the work environment (Keller and Tracy, 2008, p252).
In Oncale v Sundowner Offshore Services Inc 1998 the Supreme Court extended Title VII to harassment in the workplace between members of the same sex. This case saw a further exposition of the ‘severe and pervasive’ standard seeking to exclude mere sexual flirtation or innuendo in order avoid creating judicial workplace code of civility (Keller and Tracy, 2008, p. 253). The lack of appropriate implementation of Supreme Court guidance on the application of Title VII stems from a number of factors. There has generally been a narrow application of Supreme Court precedent, combined with confusion over the subjective and objective tests.
Often the two are combined rather than separately assessed. There is also error in applying the ‘totality’ test from Harris. In Harris Justice O’Conner listed factors which help to establish totality of a hostile working environment such as the frequency of particular discriminatory conduct, the presence of any physically threatening conduct and whether a worker’s performance is interfered with (Keller and Tracy, 2008, p. 255). However lower courts have often used this as check list rather than guide in establishing totality.