Sexual harassment is a relatively recent concept in law. It was first thematized in the 1970s by a grass roots women’s movement that identified sexual pressure on the job as sexism, a form of gender discrimination.
Title VII of the 1964 Civil Rights Act had already declared it unlawful for an employer “to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual’s sex.” Yet not until 1980 did the Equal Employment Opportunity Commission (EEOC) draw up guidelines making sexual harassment an actionable form of gender discrimination under Title VII. By 1986 the Supreme Court identified two broad forms: quid pro quo harassment, the conditioning of employment benefits on submission to sexual advances; and the creation of a “hostile work environment,” one so polluted by intimidation, ridicule, and insult that it discriminatorily alters the terms and conditions of employment. Like harassment based on race, religion, or national origin, discriminatory harassment based on sex can constitute a civil rights violation even where the employee suffers no tangible economic loss. The Courts recognition of this was a major victory for feminism. (Francis Achampong, 1999)
Unlike other forms of group-based harassment, however, the status insults deployed in sex discrimination are imbricated with sex, creating a unique set of problems for definition, regulation, and adjudication. Indeed, in its 1986 decision, the Court ruled that even consensual sex could be coercive. The gravamen of a sexual harassment claim is not “consent” but whether the alleged sexual advances are unwelcome and the misconduct sufficiently “severe” or “pervasive” as to “unreasonably” interfere with and alter the conditions of the victims employment and create an abusive working environment.
Nevertheless, it was not until the aftermath of the Clarence Thomas confirmation hearings that Congress passed the 1991 Civil Rights Act expanding......
