Sexual Harassment Trajectories: Limits of (Current) Law and of the Administrative State

ABSTRACT

The current attack on the administrative state and its more inclusive policies is accompanied by a push to limit judicial deference to administrative rulemaking. This recent trend stands in tension with the #MeToo movement and a shift in constitutional culture regarding sexual misconduct that has been developing over several decades. While the Equal Employment Opportunity Commission has continued to expand what counts as discrimination on the basis of sex under Title VII of the 1964 Civil Rights Act (recently adding sexual orientation to that list), and the Supreme Court has recognized some of these expansions, #MeToo invites rethinking what Title VII has and has not accomplished for women, why, likely prospects for addressing sexual misconduct, and the limits of law.

KEYWORDS:

• Sex discrimination
• administrative rulemaking
• #MeToo
• sexual misconduct
• EEOC
• Supreme Court

Acknowledgments

I owe thanks to Mark Graber, Marley Weiss, Hank Chambers, Leslie Goldstein, and other participants in the February 2018 Maryland Law Schmooze for suggestions and comments on an early draft of this article; to Eileen McDonagh, Julie Novkov, and Ruth O’Brien for reading and commenting on a recent draft; to Linda McClain and Morgan Marietta for additional suggestions; and to excellent suggestions from an anonymous reviewer. Thanks also to Swarthmore College students Abigail Diebold ’20 and Elizabeth Balch-Crystal ’19 for research assistance.

Disclosure statement

No potential conflict of interest was reported by the author.

Cases

Auer v. Robbins. 1997. 519 U.S. 452.

Burlington Industries, Inc. v. Ellerth. 1998. 524 U.S 742.

Chevron U.S.A. v. Natural Resources Defense Council, Inc. 1984. 467 U.S. 837.

Circuit City Stores, Inc. v. Adams. 2001. 532 U.S. 105.

Christiansen v. Omnicom Group, Inc. 2017. 2nd Circuit. 852 F. 3d 195.

EEOC v. Sears Roebuck & Co. 1986. N.D. Ill. 628 F. Supp. 1264.

EEOC v. Sears Roebuck & Co. 1988. 7th Circuit. 839 F. 2d 302.

Evans v. Georgia Regional Hospital. 2017. 11th Circuit. 850 F. 3d 1248.

Geduldig v. Aiello. 1974. 417 U.S. 484.

General Electric v. Gilbert. 1976. 429 U.S. 125.

Heckler v. Chaney. 1985. 470 U.S. 821.

Hively v. Ivy Tech. Community College of Indiana (15-1720). 2017. 7th Circuit. 853 F. 3d 339.

Jenson v. Eveleth Taconite. 1993. D. Minn. 824 F. Supp. 847.

Jenson v. Eveleth Taconite. 1997. 8th Circuit. 130 F. 3d 1287.

Loving v. Virginia. 1967. 388 U.S. 1.

Meritor Savings Bank v. Vinson. 1986. 477 U.S. 57.

National Federation of Independent Businesses v. Sebelius. 2012. 567 U.S. 519.

Oncale v. Sundowner Offshore Services, Inc. 1998. 523 U.S. 75.

Price Waterhouse v. Hopkins. 1989. 490 U.S. 228.

R.G. & G.R. Harris Funeral Homes v. EEOC. 2018. 6th Circuit (16-2424). Accessed at http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0045p-06.pdf.

Scenic America v. Department of Transportation. 2017. 583 U.S. ___.

Skidmore v. Swift & Co. 1944. 323 U.S. 134.

Vance v. Ball State University. 2013. 570 U.S. 421.

Washington v. Davis. 1976. 426 U.S. 229.

Zarda v. Altitude Express, Inc. 2018. 2nd Circuit. 883 F. 3d.

Notes

1. There were, to be sure, setbacks in discrimination law more generally. The EEOC lost a major sex discrimination case against Sears in Federal District Court in 1986 and on appeal to the Seventh Circuit (EEOC v. Sears 1986, 1988), with the court ruling that patterned, statistical outcomes were not sufficient to establish a claim of discrimination under Title VII. Interview questions for would-be commission sales workers could include probing for interest in watching or participating in contact sports, since Sears claimed there was evidence that aggressive people were more successful commission sales agents. The loss followed a line of reasoning established by the Supreme Court, emphasizing discriminatory intent rather than disparate impact, in Washington v. Davis (1976).

2. See https://www.eeoc.gov/eeoc/history/35th/milestones/1972.html.

3. The PDA of 1978 was passed to reach Supreme Court decisions, especially General Electric v. Gilbert (1976) that found no violation of Title VII in private plans that excluded pregnancy-related disabilities from the plans. The Act arguably did away with the Court’s interpretation that the equal protection clause posed no bar to exclusion of pregnancy-related disabilities from coverage in a state disability plan in Geduldig v. Aiello (1974).

4. Macy v. Holder, Appeal 0120120821 (April 20, 2012) https://www.eeoc.gov/decisions/ 0120120821%20Macy%20v%20DOJ%20ATF.txt; Baldwin v. Department of Transportation, Appeal 0120133080 (July 15, 2015) https://www.eeoc.gov/decisions/0120133080.pdf . Hively v. Ivy Tech. Community College of Indiana (2017). In Part A, the Seventh Circuit points to Baldwin v. Fox, the same decision cited above as Baldwin v. Department of Transportation. The Seventh Circuit decision stands in tension with several recent decisions coming out of other circuits. See the Second Circuit decision in Christiansen v. Omnicom Group, Inc. (2017) and the Eleventh Circuit decision in Evans v. Georgia Regional Hospital (2017; petition to Supreme Court denied December 11). However, see the discussion of the Second Circuit case of Zarda v. Altitude Express, Inc. (2018) in the text, aligning its position with the Seventh Circuit’s Hively decision and with the EEOC’s 2015 Baldwin v. Fox position.

5. Woods Rodgers, Attorneys at Law, https://www.woodsrogers.com/whats-happening-eeoc/, January 27, 2017. Accessed February 17, 2018. See “Fact Sheet: Recent EEOC Litigation Regarding Title VII and LGBT-Related Discrimination,” https://www1.eeoc.gov//eeoc/ litigation/selected/lgbt_facts.cfm?renderforprint = 1. Last updated 07–08-2016. Accessed February 17, 2018. This includes the case of EEOC v. R.G. & G.R. Harris Funeral Homes (2018). See https://www.aclu.org/ cases/eeoc-v-rg-gr-harris-funeral-homes. Accessed February 17, 2018. From 1997 through 2017, approximately 30% of all individual charges filed with the EEOC were charges of discrimination based on sex. https://www.eeoc.gov/eeoc/statistics/ enforcement/charges.cfm. In charges alleging sexual harassment filed with the EEOC, about 22.4% resulted in Merit Resolutions in 2017, with some years approximating 25% (US Equal Opportunity Commission data for FY 2010 through FY 2017). The high was 25.9% in FY 2010; the low was 22.4% in FY 2017. Accessed September 30, 2018, at https://www.eeoc.gov/eeoc/ statistics/enforcement/sexual_harassment_new.cfm. Merit resolutions include “Charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations.” Definition of terms, US Equal Opportunity Commission, Enforcement and Litigation Statistics, accessed September 30, 2018 at https://www.eeoc.gov/eeoc/ statistics/ enforcement/definitions.cfm.

6. For distinctions between Chevron (1984), Auer (1997), and Skidmore (1944) deference depending on whether the matter is one of administrative rulemaking pursuant to legislative authorization, agencies interpreting their own regulations (Auer), or other kinds of administrative holdings, see Blattmachr, Gans, and Rios (2017, Ch. 1). This Deskbook emphasizes that agency interpretations earned deference before Chevron (Skidmore was decided in 1944) but argues that Chevron increased the level of that deference.

7. Karen Orren and Stephen Skowronek (2017, 190–91) review a few critiques. Their perspective is that Chevron and Auer deference locate authority for rulemaking in the superiority of agency expertise in the executive branch; this is connected to their concern about the legacy of Progressivism and its desire to clear blockages to effective policymaking.

8. Kavanaugh thinks it is time to discard some ambiguity-dependent canons of statutory interpretation (Kavanaugh 2016, 2145); how far this extends to Chevron remains somewhat unclear, but he does note that “Chevron makes a lot of sense in certain circumstances,” such as when Congress delegates to agencies the determination about what level of regulation is reasonable or unreasonable” (2152). Kavanaugh does call Chevron “a textual invention by courts” (2150).

9. Confirmation hearings were held for both these individuals in the fall of 2017, but there has been no Senate vote. Dhillon has no background in antidiscrimination work, but his private sector background is in defending employer interests and advocating for industry’s perspective in judicial proceedings involving employee workplace protections. While Chai Feldblum, a holdover from the Obama administration, was renominated as a commissioner by Trump, two commissioner vacancies remain. There is also a separate nomination for the position of EEOC legal counsel that is pending before the Senate. The Democrats want to vote on the Chair and two other Commissioners as a package; the objecting Republican Senators refuse, and Majority Leader McConnell is resisting separate floor debate and confirmation for each nominee (Penn and Richardson 2018).

10. On the latter point, see O’Brien, who also argues on the same page that the EEOC “is a notoriously weak agency since it relies on the federal courts for enforcement” (2005, 26).

11. According to Circular 230 Deskbook, one of the changes Chevron wrought is that the decision contemplates that agencies be given more flexibility to change its interpretations over time. Citing Skidmore v. Swift & Co. (1944, 140), the authors claim that “Whereas, prior to Chevron, a change in agency position would weaken its claim of deference, such inconsistency is largely irrelevant under Chevron” (Blattmachr, Gans, and Rios 2017, 1–4 and 1–5). Agencies are politically accountable. However, Marley Weiss at University of Maryland Francis King Carey School of Law made the point that the Court’s sexual harassment rulings (actually rather conservative) hold that someone complaining that their firing constituted sex discrimination must demonstrate that “but for” [e.g., sexual orientation] they would not have been fired. In the case discussed in the text, if a woman could show that she was fired for marrying a woman (as opposed to marrying a man), the identity/orientation of the person she married is the “but for” condition, and the Court could accept a lower court finding a sex discrimination in such a case. See Price Waterhouse v. Hopkins (1989, 240–41) for a discussion of but-for causation.

12. Vance is quoting the decision in Burlington Industries, Inc. v. Ellerth (1998), although the dissenters argue that the Court is departing from this case and other precedents.

13. Sarah Staszak, an associate research scholar at the Woodrow Wilson School, Princeton University, is working on a book project on arbitration and litigation reform in the United States and the points in this sentence are made by her. Low employee win rates are substantiated in Colvin (2011).

14. #MeToo was found to be particularly viral and to have particularly extensive reach according to the PEORIA Project of George Washington University’s Graduate School of Political Management and the social media analytics firm, Crimson Hexagon (Ohlheiser 2018). The Me Too movement was founded a decade ago for survivors of sexual assault, especially young women already marginalized.

15. What happens when a movement that gains traction (e.g., #MeToo) sees certain rights as trumps rather than as chips? (Orren and Skowronek 2017, 41; drawing the concept of rights as trumps from Ronald Dworkin, Taking Rights Seriously)? There is no evidence I see to date that Congress, the political parties, or the Court is moving seriously in that direction.

16. I have not noticed any cisgender/transgender woman-against-cisgender/transgender woman charges, but it would not involve precisely the same power dynamic as the most prominent experience, men harassing women. It is important to think further about other kinds of power dynamics that may be involved when gender identity factors in cisgender and transgender harassment situations.

17. At least one of the accusers speaks of an incident while Thomas was serving on the Court (Moira Smith in Coyle 2016).

18. Judge Kozinski announced his retirement, and because he is over 65, he receives his full pension and is immune from prosecution; see Lithwick’s discussion about the difficulty holding judges with lifetime appointments accountable short of impeachment (Schwartz 2018).

19. #WhatAboutUs was started by women working in industry.

20. The first class action sexual harassment lawsuit was Jenson v. Eveleth Taconite (1993), with a finding for the women. The appeal was decided in the Eighth Circuit (1997) in 1997, ordering a new jury trial on damages; 130 F. 3d 1287. Clara Bingham and Laura Leedy Gansler wrote Class Action: The Story of Lois Jenson and the Landmark Case That Changed Sexual Harassment Law (Anchor Books, 2003) and the fictionalized feature film North Country was released in 2005.

21. Dissent by Scalia, Kennedy, Thomas, and Alito, J.J. speaking of the commerce power and its limits, in NFIB v. Sebelius (2012, 660).