Moving Forward, Looking Back: A Retrospective on Sexual Harassment Law

INTRODUCTIONWhen Jane Corne and Geneva DeVane filed a complaint in the mid-1970s against their employer, Bausch and Lomb, they alleged what they deemed a form of discrimination.1 The two women worked as clerical staff and were supervised by a man named Leon Price, who, they alleged, subjected them to repeated verbal and physical sexual advances at work, which escalated to a point that both women were forced to resign.2 The complaint alleged that this behavior violated Title VII of the Civil Rights Act of 1964,3 enacted more than a decade earlier, because the imposition of unwanted sexual advances by a supervisor or the granting of rewards for sexual submission were forms of illegal sex discrimination.4The district judge was openly incredulous about their claim.5 All previous cases of sex discrimination "arose out of company policies" and involved "apparently some advantage to, or gain by, the employer from such discriminatory practices."6 But here, "Mr. Price's conduct appears to be nothing more than a personal proclivity, peculiarity or mannerism. . . . [He] was satisfying a personal urge."7 And if that was the case, how could "it be construed that the conduct complained of was company-directed policy which deprived women of employment opportunities"?8 Indeed, the court continued, a "reasonably intelligent reading of the statute" shows that it cannot be read to cover actions, even by a supervisor, which "had no relationship to the nature of the employment."9 It would be "ludicrous" to find this conduct actionable simply because it was directed at females alone (lots of them, according to the complaint), and recognition of this cause of action would mean "a potential federal lawsuit every time any employee made amorous or sexually oriented advances toward another."10 Employers would be forced to "have employees who were asexual" since that would be the "only sure way . . . [to] avoid such charges."11 (And one could imagine the court's wondering whether there were enough asexual adults in the workforce to make millions and millions of contact lenses.) The court thus concluded that the women had failed to state a claim under Title VII and dismissed the complaint.12The ruling in Corne, like a similar ruling the following year in which a federal district court dismissed a discrimination complaint alleging sexual assault on the theory that Title VII was "not intended to provide a federal tort remedy for what amounts to physical attack motivated by sexual desire on the part of a supervisor and which happened to occur in a corporate corridor rather than a back alley,"13 is a touchstone in the development of sexual harassment law. It signaled the emerging awareness of "sexual harassment," a newfound label for conduct that had long been experienced by (mostly) women in the workplace, but seldom discussed and never challenged. But the ruling also marked the beginning of sexual harassment law by raising questions that courts and commentators would spend decades trying to answer: What is sexual harassment? What does it have to do with equal employment opportunity? And who can be held liable for it?The history of sexual harassment law-which I have occasion to consider as part of this symposium on the fiftieth anniversary of Title VII-can be divided, if not neatly, into three eras. The 1970s was home to the emergence of consciousness about the frequency and harm of sexually harassing behaviors in the workplace-and a name to describe them. The 1980s and 1990s saw the development and embrace of a theoretical understanding of sexual harassment as a form of discrimination, outlined in Catharine MacKinnon's path-breaking 1979 book, The Sexual Harassment of Working Women,14 and the development of a comprehensive set of substantive principles about what constitutes actionable harassment and who can be held liable for it. Finally, the last decade and a half has seen critique on both ends-from some scholars who claim sexual harassment law has gone too far (or in the wrong direction) and from others who claim it has failed to transmit cultural understandings necessary for equality and stalled with a type of complacency about a system that has largely failed to eradicate the harassing behaviors that continue to impede women's equal opportunity in the workplace. …