Source: Christine J. Back, Wilson C. Freeman, Congressional Research Service, CRS Report, R45155, April 9, 2018
Title VII of the Civil Rights Act of 1964 (Title VII) generally prohibits discrimination in the workplace, but does not contain an express prohibition against harassment. The Supreme Court, however, has interpreted the statute to prohibit certain forms of harassment, including sexual harassment. Since first recognizing the viability of a Title VII harassment claim in a unanimous 1986 decision, the Court has also established legal standards for determining when offensive conduct amounts to a Title VII violation and when employers may be held liable for such actionable harassment, and created an affirmative defense available to employers under certain circumstances.
Given this judicially created paradigm for analyzing sexual harassment under Title VII, this report examines key Supreme Court precedent addressing Title VII sexual harassment claims, the statutory interpretation and rationales reflected in these decisions, and examples of lower federal court decisions applying this precedent. The report also discusses various types of harassment recognized by the Supreme Court—such as “hostile work environment,” quid pro quo, constructive discharge, and same-sex harassment—and explores tensions, disagreements, or apparent inconsistencies among federal courts when analyzing these claims.
Finally, this report examines sexual harassment in the context of retaliation. Does Title VII’s anti-retaliation provision protect an employee from being fired, for example, for reporting sexual harassment? How do federal courts approach the analysis of a Title VII claim alleging that an employer retaliated against an employee by subjecting him or her to harassment? The report discusses Supreme Court and federal appellate court precedent relevant to these questions….
Source: Jasmine Tucker, National Women’s Law Center, April 10, 2018
Families depend on women’s wages now more than ever. But a woman working full time, year round is typically paid just 80 cents for every dollar her male counterpart is paid. This gap, which persists by educational attainment and occupation, amounts to a loss of $10,086 per year for the typical woman working full time, year round, and today, April 10th, is the day her pay catches up to men’s in 2017 alone.
For a typical woman, this wage gap adds up to a staggering loss of $403,440 over a lifetime of work. And depending on a woman’s race or ethnicity and where she lives, the situation can be much, much worse.
Here are the worst states for women’s earnings losses over a lifetime…..
Source: Julie Anderson, Jennifer Clark, Institute for Women’s Policy Research, Fact Sheet, IWPR# R532, March 2018
From the summary:
This Fact Sheet presents findings from analysis of the Employment & Earnings Index and Poverty & Opportunity Index of The Status of Women in the States series, a comprehensive project that presents and analyzes data for all 50 states and the District of Columbia. The state grades, rankings, and data provided on these two measures of women’s economic status provide critical information to identify areas of progress for women in states across the nation and pinpoint where additional improvements are still needed. The state-by-state grades are based on composite indices first developed by the Institute for Women’s Policy Research in 1996. For a complete discussion of data sources and methodology, and to find fact sheets on the economic status of women in each state, please visit the interactive Status of Women in the States website at statusofwomendata.org.
The Economic Status of Women in the U.S.: What Has Changed in the Last 20 – 40 Years
Source: Heidi Hartmann, Institute for Women’s Policy Research, Presentation, March 28, 2018
Source: Jeff Hayes, Heidi Hartmann, Institute for Women’s Policy Research, Quick Figures, IWPR# Q069, April 2018
From the summary:
Millennial women are the most educated generation of women in the United States and are now more likely than men to have a college degree. At the same time, progress on closing the gender wage gap has stalled for nearly two decades, indicating that unequal pay continues to be a challenge to new generations of women workers.
Source: Marissa Miller, Teen Vogue, April 10, 2018
Not negotiating is not an option. …
….Women continue to make an average of 80 cents for every man’s dollar, but research shows everyone wins with gender-based pay parity. The McKinsey Global Institute found that moving towards a more egalitarian workforce could add up to $4.3 trillion in annual GDP by 2025. But at the rate we’re going, the Institute for Women’s Policy Research finds women will only see pay checks equal to those of their male counterparts in 232 years. (And if that sounds bad, remember that women of color, on average, face much larger pay gaps than white women. While Asian women have the smallest gap between their wages and those of white men, the AAUW reports that Hispanic women average 54 percent and black women 63 percent of what white men make.)
Thankfully, trailblazers like Libby Leffler, VP of membership at SoFi, are working at the local level to enact real change. With stops on her resume including Google and Facebook, the business executive has negotiated her salary at every position she’s held with the expectation that her employees will to do the same (and as Facebook COO Sheryl Sandberg’s former business lead, she’s fluent in the language of Leaning In). In honor of Equal Pay Day, April 10, Libby talks to Teen Vogue about everything from negotiating your worth to never taking your group texts for granted…..
Source: Ariane Hegewisch, M.Phil., Emma Williams-Baron, Institute for Women’s Policy Research, Fact Sheet, IWPR# C467, April 2018
From the summary:
Women’s median earnings are lower than men’s in nearly all occupations, whether they work in occupations predominantly done by women, occupations predominantly done by men, or occupations with a more even mix of men and women. Data for both women’s and men’s median weekly earnings for full-time work are available for 121 occupations. The occupation with the largest gender wage gap is ‘personal financial advisor;’ in 2017, the median weekly earnings of women ‘personal financial advisors’ were only 58.9 percent of those of men’s, corresponding to a gender wage gap of 41.1 percent….
Source: Kenneth Robert Davis Ohio State Law Journal, Vol. 79, Fall 2018, Date Written: March 26, 2018
From the abstract:
A pandemic of sexual harassment has stricken the country. A recent EEOC report shows that, depending on how the question is posed, between 25 and 85 percent of women respond that they have experienced harassment in the workplace. The report also states that 90 percent of incidents go unreported. Victims do not believe that their employers will be receptive to their complaints, and many fear censure or retaliation. The law is limited in its capacity to deter a pandemic that has psychological, sociological, and cultural causes. Nevertheless, the law has a role to play, particularly in the workplace. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sex, and the courts have long recognized sexual harassment as a form of sex discrimination. The Act has established a framework focused on conciliation, and, where efforts at settlement fail, on litigation. Regrettably, this framework has failed to achieve its mission of deterrence. In Meritor Bank v. Vinson, the Supreme Court established the elements of hostile-work-environment claim. A plaintiff must prove that she was subjected to unwelcome, discriminatory words or conduct of a sexual or gender-related nature so severe or pervasive that they altered the conditions of her employment. In applying this standard, federal courts have rejected claims alleging highly offensive and even egregious misconduct. Several reasons account for the failure of current law to curtail sexual harassment in the workplace. One of the primary reasons is the law’s focus on conciliation and litigation. Under the current model, complainants file grievances with the EEOC, which seeks to settle disputes. If efforts at settlement fail, the current approach authorizes a federal court action. Settling cases may do little to deter abuses. After entering into a settlement agreement, an employer may slip back into complacency. Litigation also fails to promote deterrence because the current framework focuses on compensating victims. To strengthen Title VII’s deterrent impact, this Article proposes that Congress supplement the current model by granting the EEOC expanded enforcement powers. The EEOC should have broad authority to initiate civil enforcement proceedings in federal court and in quasi-judicial enforcement proceedings. Rather than compensating victims, the purpose of such proceedings would be to identify instances of workplace harassment, and, where appropriate, sanction irresponsible employers. Because the EEOC, in such enforcement proceedings, would not seek relief on behalf of victims, the elements that establish injury would be superfluous. In such proceedings the EEOC should merely have to prove that discriminatory, sexual or gender-related words or conduct would be highly offensive to a reasonable person. By adopting the “highly offensive to a reasonable person” standard, Congress would maximize prevention of sexual harassment in the workplace.
Source: Sarah Jaffe, Dissent, Spring 2018
Now we know the issue that unites women across workplaces is abuse by more powerful men, how do we come up with demands that move beyond naming and shaming?
Source: Marion G. Crain, Kenneth Matheny, Washington University in St. Louis Legal Studies Research Paper No. 18-03-04, March 26, 2018
From the abstract:
In the waning months of 2017, Americans endured an almost daily barrage of news reports describing sexual harassment by powerful men in entertainment, media, politics and law. While sexual harassment had been headline news before — most notably, during the 1991 Anita Hill-Clarence Thomas debacle — never had so many victims joined hands and come forward demanding change. The media spotlight presented a tremendous opportunity to reframe sexual harassment from an individual, personal and idiosyncratic instance of sexual desire to a common abuse of gender and economic power affecting millions of working women and men on a daily basis. Feminist legal scholars have known for years that expectations about appropriate gender roles create an environment where sexual harassment functions to protect male privilege. But the message that sexual harassment is a systemic feature of workplace gender inequality never reached the general public. Instead, the mainstream media’s systematic focus on sexual harassment as a twisted manifestation of male sexual desire grabbed headlines and implied that when the harasser is discharged, the story ends. But sexual harassment is about much more than men behaving badly. It is a structural problem linked to unequal pay and occupational segregation by sex.
One might think that labor unions would come forward as advocates for such a large segment of workers suffering economic disadvantage in the workplace. Yet despite the frequent use of the word “solidarity” in media reports about #MeToo, organized labor was conspicuously absent from the dialogue. While union leaders made public statements denouncing sexual harassment and promised to redouble union efforts to eradicate it, most disclaimed legal responsibility for preventing and addressing sexual harassment in the workplace. Not all the blame for labor’s passive stance can be laid at labor’s doorstep, however. Unions are hamstrung by a legal structure that creates a fundamental role conflict where they represent a workforce that includes both potential harassers and victims, and NLRA protection for worker concerted action for mutual aid has been cabined by courts and the Board to the point that labor’s tradition of solidarity is barely recognizable.
What, then, are the prospects for engaging unions in combating workplace sexual harassment? And how could a more proactive role for labor be realized within the existing legal structure? The answer is both deceptively simple and complex: unions must take sexual harassment seriously. This means not only cleaning labor’s own house, but dedicating resources to efforts in partnership with feminist, civil rights and “alt-labor” groups in a coordinated campaign to challenge sexual harassment at the worksite and sectoral levels, modeled on the Fight for $15. A new, more collaborative understanding of solidarity will be essential. Unions should dedicate legal expertise to translating solidarity into labor law, pressing for an understanding of concerted activity for mutual aid that includes eradicating sexual harassment for the benefit of all workers. Finally, if ensuring redress for victims of sexual harassment were at the front of union consciousness, unions could invoke that goal as a lever to challenge employer rules that tend to silence efforts to raise rights-consciousness among victims or undermine claims assertion, such as rules prohibiting discussion of workplace investigations and arbitration clauses banning class claims. Ultimately, challenging sexual harassment could re-brand labor unions and offer an opportunity for partnerships with their social justice allies that would capture hearts and minds.
Source: Ariane Hegewisch, Emma Williams-Baron, Institute for Women’s Policy Research, IWPR #C464, March 2018
From the abstract:
The gender wage gap in weekly earnings for full-time workers in the United States did not improve between 2016 and 2017. In 2017, the ratio of women’s to men’s median weekly full-time earnings was 81.8 percent, a decrease of 0.1 percentage points since 2016, when the ratio was 81.9 percent, leaving a wage gap of 18.2 percentage points, nearly the same as the 18.1 percentage points in 2016. Women’s median weekly earnings for full-time work were $770 in 2017 compared with $941 for men. Adjusting for inflation, women’s and men’s earnings increased by the same amount, 0.7 percent, since 2016.
Another measure of the wage gap, the ratio of women’s and men’s median annual earnings for full-time, year-round workers, was 80.5 percent in 2016 (data for 2017 are not yet available). An earnings ratio of 80.5 percent means that the gender wage gap for full-time, year-round workers is 19.5 percent.
The gender earnings ratio for full-time, year-round workers, which includes self-employed workers, tends to be slightly lower than the ratio for weekly earnings (which excludes the self-employed and earnings from annual bonuses, and includes full-time workers who work only part of the year). Both earnings ratios are for full-time workers only; if part-time workers were included, the ratios of women’s to men’s earnings would be even lower, as women are more likely than men to work reduced schedules, often in order to manage childrearing and other caregiving work.