Rising racial tensions in the South following desegregation catalyzed the introduction of the 1964 Civil Rights Act (CRA). However, protections based on gender were not included until the House floor debate on the bill. Congressman Howard Smith, a staunch segregationist, introduced “sex” as a protected class in Title VII of the act as a “poison pill” meant to kill the bill.4 Title VII of the CRA—prior to Smith’s amendment—prohibited employment discrimination based on race, color, religion, or national origin. Supporters of the bill feared the inclusion of sex would cause Northern Democrats allied with labor unions to abandon their support of the Act, since labor unions opposed expanding employment protections to women. Despite these concerns, the House approved the CRA with Smith’s amendment included. But the inclusion of “sex” was not taken seriously by the Equal Employment Opportunity Commission (EEOC), the enforcers of Title VII protections. The first executive director of the EEOC, Herman Edelsberg, called the “sex amendment” a “fluke . . . conceived out of wedlock.” And, when a reporter asked the first chairman of the EEOC, Franklin Roosevelt, Jr., “What about sex?” he joked, “Don’t get me started. I’m all for it.” Washington, D.C., and the public feared that enforcing gender-based protections in Title VII would irreparably damage the workplace status quo. Noyes Powers, who served as acting executive director before Edelsberg, stated that the “commission is very much aware of the importance of not becoming the sex commission.” Edelsberg would later tell the press that “no man should be required to have a male secretary.” Among members of Congress, the inclusion of sex in Title VII was often referred to as the “bunny problem,” based on a hypothetical situation where Playboy would have to hire male and female models. An editorial from the New York Times lamented that “a maid can now become a man” and “the Rockettes may become bi-sexual.” Martha Griffiths, speaking on the House floor, summarized the damaging effects of these attitudes: This emphasis on odd or hypothetical cases has fostered public ridicule which undermines the effectiveness of the law, and disregards the real problems of sex discrimination in employment. By emphasizing the difficulties of applying the law in these odd cases, the impression is created that compliance with the law is unnecessary and that its enforcement can and will be delayed indefinitely or wholly overlooked. These dismissive attitudes identified by Griffiths led to a general pol- icy of apathy toward gender-based discrimination in the workplace. For ex- ample, in the EEOC’s first year, approximately one-third of the 8,854 complaints filed were due to sex-based discrimination. To address this grow- ing crisis, the EEOC hired a single temporary worker, the wife of an EEOC employee, to process all gender-related claims. Though society’s views on workplace gender discrimination have matured, similar fears continue to impact gender-based hostile work environment claims. Past concerns that Title VII would upturn accepted gender roles in the workplace have morphed into a more general concern about interfering with typical socialization between men and women in the work- place. Courts today worry Title VII will turn into a civility code if they hold employers liable for ordinary socializing in the workplace. To prevent Title VII from becoming a civility code, the Supreme Court has held that “not all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title VII.” Rather the Court held that sexual harassment only becomes actionable when the harassment is “sufficiently severe or pervasive ‘to alter the conditions of employment.’” The severe or pervasive standard has set a high bar for employees seeking to establish a viable hostile work environment claim and has prevented sexual harassment jurisprudence from evolving alongside societal expectations. This comment will explore current is- sues with the “severe or pervasive” standard used by courts when determining if an employer fostered a hostile work environment in violation of Title VII. Part A of Section II discusses the historical development of hostile work environment claims and the associated severe or pervasive standard, and Parts B and C examine modern judicial applications of the severe or pervasive standard in hostile work environment claims based on sex and race, respectively. Section II further highlights two shortcomings of the severe or pervasive standard: (1) judges’ tendency to reference outdated cases despite changing social expectations, and (2) the liberal use of summary judgment to dismiss hostile work environment claims. Section III examines how Montana has most recently applied the severe or pervasive standard in a hostile work environment claim, and Section IV recommends two potential changes for Montana courts when reviewing hostile work environment claims to ensure the severe or pervasive standard stays aligned with current workplace expectations. Section V concludes this comment.
Levi Kimmel, Comment, The Severe or Pervasive Standard in the Modern Age, 84 Mont. L. Rev. 2 (2023).