Print Issue Volume 98 - No. 5

State Sexual Harassment Definitions and Disaggregation of Sex Discrimination Claims

Sex discrimination hostile work environment jurisprudence has developed along two separate lines. Claims for harassment based on sexual advances or other sexual conduct constitute “sexual harassment” and must fulfill the sexual-specific definitions and rules developed by courts and the EEOC. On the other hand, hostile work environment claims based on “non-sexual harassment”—where an employee has been denigrated, scorned, or harassed merely due to her status as a “woman,” without any sexual component—are not subject to this sexual-specific analysis. As scholar Vicki Schultz has observed, at the federal level, this has resulted in the disaggregation of sexual and non-sexual harassment and a parsing out of non-sexual and sexual components of sex discrimination claims, utilizing a two-tiered analysis. Disaggregation has seriously weakened the claims of non-sexual, as opposed to sexual, harassment plaintiffs or plaintiffs who are bringing “mixed harassment” claims—claims including allegations of both sexual and non-sexual discriminatory conduct.

However, due to the existence of sexual harassment definitions in states’ civil rights acts, disaggregation has now been formally adopted at the state level. While the federal Civil Rights Act does not contain a definition for sexual harassment, state legislatures have adopted such definitions, modeling them after the EEOC guidelines. The presence of these statutory definitions has resulted in the formal and explicit splitting of sexual and non-sexual harassment claims, and the weakening or failure of non-sexual or mixed harassment claims, solidifying the disaggregation problem at the state level and imposing fatal obstacles for plaintiffs whose claims include non-sexual harassment components. This Note explores this problem.

This Note argues that the pigeonholing effect of sexual harassment definitions in state civil rights acts has imposed unnecessary burdens and obstacles for sex discrimination plaintiffs and their attorneys. However, when properly constructed, sexual harassment definitions could actually call attention to and combat the disaggregation problem in sex discrimination law. This Note proposes methods to combat disaggregation at every level of the legal process, including careful pleading and briefing of non-sexual or mixed harassment claims, development of “aggregation rules” at the judicial level, and adopting statutory “aggregation provisions” that more clearly contextualize sexual harassment within the broader umbrella of sex discrimination.

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