Is Sexual Harassment a Civil Rights Violation? It Should Be.

If the recent wave of sexual harassment and sexual assault revelations has taught us anything, it’s that we have not done enough to end sexual harassment and gender-based violence.

It has been over 30 years since a unanimous U.S. Supreme Court, in an opinion written by Justice Rehnquist, declared that “without question,” a supervisor’s unwanted sexual advances at work are a form of unlawful sex discrimination. It has been over 25 years since the Clarence Thomas hearings spurred a national conversation about sexual harassment in the workplace. And it has been over 10 years since social activist and community organizer Tarana Burke coined the phrase “Me Too” to promote empowerment, primarily among women of color, who experienced sexual abuse.

The fact that #MeToo has taken off as a viral hashtag is a stark reminder that gender-based violence and harassment persist despite years of public attention and law reform. This is true even in the workplace, where there is a body of decisions from cases brought over the last 30 years. It’s clear that we need to refocus our public dialogue and use of the law on how to actually stop gender-based violence and harassment, both in and out of the workplace. To that end, we need more meaningful measures of accountability, which include civil rights remedies that shift the focus from punishing the offender to providing redress for the victim while holding the offender accountable.

As commentators such as Judith Levine, who has written several books about sex and gender, Masha Gessen of the New Yorker, and Rebecca Traister of New York Magazine have pointed out, punitive approaches that rush to judgment and sanctioning those accused of sexual misconduct risk over-policing women’s virtue and casting women as victims who lack agency. These approaches also advance policies that prioritize incarceration over personal responsibility, while doing little to dismantle power disparities that leave marginalized groups vulnerable. Responses that reflexively pronounce success when those accused of abuse are fired or punished may compromise due process safeguards we all should value, particularly in these times when rights are under threat on multiple fronts.

As we consider new responses to sexual assault and abuse, we should look beyond punishment as the sole goal and should find ways to gauge when someone has meaningfully taken responsibility for harmful actions. Restorative justice — practices that provide opportunities for the victim to communicate to the offender the impact of the offense in a safe setting and to jointly come up with ways the offender can take responsibility — are being explored and hold promise for alternative approaches.  These could include an apology, training, or engagement in community service and dialog.   

On the legal front, we need to fix loopholes in existing civil rights laws so that they more effectively compensate those harmed by sexual harassment and gender violence as well as do a better job of deterring it. Civil rights remedies, such as federal and state anti-discrimination laws, can be used against those who commit acts of gender-based violence and harassment. However, these laws are limited — both in the spheres in which they apply and the actors who may be held accountable. Most civil rights laws prohibit gender-based violence and harassment at work, in housing, and by state actors. In the workplace, they often only hold employers or managers accountable and may not reach the individuals who actually committed the abuse. There is no federal civil rights law that provides a remedy for gender-based violence or harassment committed by a private individual — which is the most common form.

Have you been harassed on the job? Tell us your story. 

For a brief six years, such a remedy was available under the 1994 Violence Against Women Act. A civil rights provision of VAWA enabled survivors of gender violence and harassment to sue abusers and to be compensated for their losses as a result. But in 2000, in U.S. v. Morrison, a case brought by a college student raped at school in her first semester of college, the Supreme Court struck down the law on the basis that Congress exceeded its authority in passing federal legislation that interfered with state’s rights.   

Although there is no longer a federal law enabling a woman to file a civil suit against her individual harasser, over a dozen state statutes allow individuals who have committed gender-based harm to be held to account. For example, under Illinois’ Gender Violence Act, a woman was able to bring a claim against her eye doctor, who repeatedly sexually assaulted her during and in the course of her treatments. And in New York City, a woman attacked for her actual or perceived sexual orientation or gender identity while eating brunch at a Sizzler restaurant reached a settlement with the restaurant and its manager under New York City and New York State’s gender violence laws. 

After Morrison, Congress introduced the Violence Against Women Civil Rights Restoration Act of 2001, legislation that would retain a federal civil rights remedy for gender violence while addressing the issues the Supreme Court found problematic.  This could be the time to revive those proposals and to make more use of the laws on the books in the states.   

While a civil rights remedy is not a panacea, it can offer recourse for those who suffer harassment outside of traditional employment relationships. This could include low-wage workers, who are often employed as independent contractors rather than employees, as well as models and actors. It also could provide a civil rights-based remedy for those harassed or assaulted by individuals at places like malls or other public forums, which are not otherwise covered by anti-discrimination laws. These civil rights laws sometimes include longer statutes of limitations and may allow successful plaintiffs to recover attorneys’ fees from the defendant. And they frame sexual assault, harassment, and other forms of gender-based violence as a problem of civil rights and discrimination, which can provide a critical frame for shifting dialog, rhetoric, and culture.

The mood in the country is ripe for action to end gender-based violence and harassment.  The moment calls on all of us to take stock, to consider new strategies, and to enact and use laws to hold those who commit abuse accountable and to compensate those who are harmed.

Julie Goldscheid is a professor at CUNY Law School. She argued U.S. v. Morrison at the Supreme Court. The views expressed in the article are the author's own and do not necessarily represent or reflect the views of the ACLU.

Read more in our series, "Dismantling Sexual Harassment"

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Dr. Timothy Leary

Me too! I was once sexually harassed on the job. The owners of the company I worked at used to bring the family dogs to the office. A Golden Labador Retriever tried to hump my leg. I had to pile up office chairs across the front of by cubicle to keep him away from me.

Anonymous

Gender harassed or species harassed?

Dr. Joseph Goebles

It was your mom trying to hump it. Hahahahaha! Nice I love the trolling. Troll troll troll your boat...

Anonymous

I don't see why you would argue for more civil rights laws based on gender while at the same time arguing cases that are eroding the legal definitions of gender. If I am sexually assaulted by an individual with a penis all that individual would have to do is "identify" as a woman and there goes the whole case as far as hate crimes and civil rights violations go. Women are, thanks in part to the ACLU, sharing jail cells with individuals who have penises who have actually murdered and assaulted women then claimed they were women and should be in a women's jail. Right now, any Civil Rights law that is for the "benefit" of women is only going to be used by transgenders to force us to say that individuals with penises can be women so forget it! I'll be taking jiu-jitsu instead.

Member

Doesn’t anyone member Sexual Harrasment panda!?

Dan T.

Don't pander to the panda.

Rody Contreras

CORRUPTION
Is the City of Redondo Beach above the law?

Under Redondo Beach City policy, California State law, and Federal law, it is illegal to retaliate against police supervisors for reporting incidents of sexual harassment or racial discriminatory hiring practices reported to the supervisor by city employees.

State and Federal laws protect both current and former employees who report these law violations on behalf of others against any form of retaliation.

The Mayor of the City of Redondo Beach, the city council, and city management are not exempt from abiding by laws which protect former city employees from any form of post-employment retaliation against them for reporting discrimination and sexual harassment in the workplace.

My name is Rody Contreras. I was born and raised in the City of Redondo Beach. I retired as a police sergeant after dedicating 33 years of my life working for the Redondo Beach Police Department. Since my retirement, the City of Redondo Beach has continued retaliating against me, post-employment, by denying me my contractual pension benefits for reporting discriminatory violations against other city employees. As a single parent I rely on my pension to support my family, but this issue is about more than my pension benefits.
Discrimination should not be tolerated at any level within city government. Sexual harassment and racial discrimination are unacceptable violations against basic human rights and should not exist in the private or public sectors of government. The City of Redondo Beach’s continued retaliation against me for reporting acts of discrimination against my fellow employees leave me little choice but to file a lawsuit next month for breach of employment/retirement contract and violation of my civil rights.

Post-employment retaliation against former police officers sends a strong message to current police officers not to report internal unlawful activity, lest they intend to suffer the consequences of the city’s retaliation. Police officers need to know that they can count on the support of the public when reporting internal unlawful activity.
In a time when the exposure of corruption within law enforcement has generated a great amount of distrust for police officers, it is vital to support officers who stand against this corruption. A healthier and safer police department means a healthier and safer community. In solidarity, we must hold our local government officials accountable.

Please take a moment and fight against sexual harassment, racial discrimination, and government retaliation by emailing your opinions and objections to the Redondo Beach City Manager, Mayor and Council. ***Standup against City corruption***

Redondo Beach City Mayor Bill Brand: bill.brand@redondo.org
Redondo Beach City Council Members – Nils Nehrenheim: nils.nehrenheim@redondo.org, Todd Loewenstein: todd.loewenstein@redondo.org, Christian Horvath: christian.horvath@redondo.org, John Gran: john.gran@redondo.org, and Laura Emdee: laura.emdee@redondo.org
Redondo Beach City Manager Joe Hoefgen: joe.hoefgen@redondo.org

nelle

In NH, an individual may be added as an additional respondent on a charge of discrimination.

David Balashinsky

Ms. Goldscheid makes many good points. Significantly, however, there is a disclaimer accompanying her essay notifying the reader that "The views expressed in the article are the author's own and do not necessarily represent or reflect the views of the ACLU." Notwithstanding, the link that brings the reader to this essay is posted by the ACLU and includes the statement "We need to hold harassers accountable - and compensate victims."

Against this background of the ACLU's taking up the cudgels on behalf of victims of sexual harassment and sexual assault, I am writing here not to fault anything Goldscheid has written but rather to fault the ACLU for its hypocrisy. This is an organization that has consistently turned its back on the right of every male American to grow up with his bodily integrity respected and to be protected against genital mutilation. That right - not to have a part or parts of one's genitals cut off for religious or cultural reasons - apparently applies only to girls - not to boys.

Consider, for example, female circumcision, or genital cutting, or genital mutilation (or simply FGM) which is a deeply entrenched religious and cultural practice throughout the Middle East and Africa but which has been banned in the United States since 1996. As far as I know (and I hope I am not mistaken), the ACLU has never mounted a legal challenge to the federal anti-FGM statute on the grounds that it violates the first-amendment right of U.S. citizens to impose this highly significant religious and cultural practice on their daughters.

In contrast, the ACLU of Northern California several years ago took a public stand in support of male circumcision, or genital cutting, or genital mutilation (or simply MGM) when it filed an amicus curiae brief against a citizens' referendum in San Fransisco that, had the voters been permitted to have their say, and had it passed, would have accomplished nothing more radical than providing exactly the same legal protection for boys against non-therapeutic (that is, non-medically indicated) genital cutting as now exists for girls. One of the ACLUNC staff attorneys at the time claimed that such a ban would infringe on the religious freedom of parents who wish to impose genital cutting on their infant boys.

Why is a ban against FGM not a violation of the first amendment while a ban against MGM is? Why is surgically altering the genitals of girls for religious and cultural reasons ethically and legally indefensible while doing the exact same thing to boys for exactly the same reasons perfectly okay?

A similar double standard can be found in numerous other rights and causes that the ACLU, to its credit, has championed, including abortion rights, the rights of LGBTQ persons (including the right to marry), and now, of course, the right to be free of sexual harassment and violence. And yet every one of these other rights, including the right not to have one's genitals surgically altered by one's parents, all boil down to exactly the same thing: the right of bodily autonomy - the right to own one's own body. That is the bedrock upon which every other right stands: the right to obtain an abortion, the right to make one's own decisions about one's sex life, the right to an open future including the right to decide for oneself what religion - if any - one want to practice, the right to be free from sexual violence: in short, the right to be left alone and to have one's physical boundaries respected. In every case, save one, the ACLU has come down foursquare on the side of the principle of bodily autonomy and the right of the individual. In every case, that is, with the one giant exception of infant male circumcision - male genital mutilation. In this one glaringly inconsistent case, the ACLU cares not a whit for the rights of the victim. Why is that? Why the double standard?

This is particularly relevant in regard to Goldscheid's essay (and the ACLU's post). Rape culture, after all, begin early. What right does our society have to expect men to respect the physical boundaries of others when these same men were not accorded the same right themselves? By what moral authority does the ACLU condemn one sort of sexual violence while actively defending another sort of sexual violence?

Male circumcision has been denounced by numerous medical organizations and legal scholars around the world as a violation of the basic human rights of the individual. It is long past time that the ACLU should have put aside its own cultural blinders and acknowledged and defended the right of every U.S. citizen, regardless of sex, to own and control his own body and to grow up with his genitals intact. Bodily autonomy is a fundamental right. It's high time the ACLU defended that right consistently.

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