How Supreme Court made it harder to stop sex harassment

Flashback: Anita Hill's explosive opening statement
Flashback: Anita Hill's explosive opening statement

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Flashback: Anita Hill's explosive opening statement 03:20

Story highlights

  • 25 years after the Anita Hill hearings, there's a significant legal barrier that prevents many victims of sexual harassment from suing their employers, Vijay Das writes

Vijay Das is a Washington-based essayist and policy advocate who writes on social, health and economic justice issues. Follow him on Twitter @vijdas. The views expressed are his own.

(CNN)October marks the 25th anniversary of the storied Anita Hill Senate committee hearings on the confirmation of Clarence Thomas' nomination to the U.S. Supreme Court.

Vijay Das
In testimony that riveted the nation, the Senate Judiciary Committee heard Hill's allegations that her then-supervisor at the U.S. Department of Education and at the Equal Employment Opportunity Commission (EEOC), Clarence Thomas, made unwelcome sexual comments to her at work. On October 15, the Senate confirmed Thomas' nomination to the court.
    Today, sexual harassment remains a serious issue infecting America's workplaces. What's really telling about Donald Trump's comments in the leaked 2005 "Access Hollywood" hot mic tape is that we are living in a culture in which men feel entitled to make sexual advances upon women without their consent.
    Flashback: Clarence Thomas responds to Anita Hill
    Flashback: Clarence Thomas responds to Anita Hill

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    Flashback: Clarence Thomas responds to Anita Hill 03:47
    Workplace harassment is unfortunately all too common in all types of employment settings. Just look at the allegations by high-profile Fox News employees that resulted in a reported $20 million settlement with Gretchen Carlson and smaller settlements with others.
    Yet many people might be surprised to learn that the legal landscape for bringing harassment cases is more challenging now than a quarter century ago. When Anita Hill brought her accusations, working women had more authority to challenge supervisors that sexually harassed them.
    Title VII under the Civil Rights Act of 1964 prohibits workplace sexual harassment, a form of sex discrimination. Employers are generally liable for harassment committed by supervisors. Courts have traditionally reasoned that it's fair to link the conduct of a supervisor to employers since employers hired and trained that supervisor.
    But the 2013 Vance v. Ball State University Supreme Court ruling severely narrowed the definition of workplace supervisors. The justices defined supervisors as those that are authorized to carry out employment actions against another employee, including hiring, firing and demotion. They effectively exempted lower-level supervisors from this definition.
    With the court's narrower view of a supervisor, it's increasingly onerous for harassment victims to file discrimination lawsuits. Employers can better escape liability by stating that they had no knowledge about a low-level supervisor's harassing of a junior employee.
    As expected, lawyers are advising companies to consolidate hiring and firing authority at a higher level to escape civil rights liability.
    The ruling has further opened the floodgates for preventable workplace abuses, hurting a large swath of America.
    The National Women's Law Center found that low-level supervisors increasingly assume complete authority over their subordinates. There are 3 million lower-level supervisors for more than 17 million low-wage workers -- virtually the entire low-wage workforce. Another 3 million low-level supervisors oversee workers who don't earn low wages.
    Harassment goes on unpunished. One 2014 report found that 43 sexual harassment lawsuits have been thrown out because of Vance. That number has surely grown.
    Harassment is rampant and victims deserve a legitimate way to fight it.
    In 2013, 30,000 harassment charges came before the EEOC and state and local Fair Employment Practices Agencies. More than 10,000 of these charges involved sexual harassment. Women brought more than 80% of them. Last year, the EEOC was asked to investigate nearly 7,000 harassment charges.
    Harassment particularly cripples working women. Workplace harassment largely affects millions of cashiers, stock persons and home-care workers who take abuse daily and don't speak out for fear of workplace retaliation.
    The Restaurant Opportunities Center United (ROC) reported that more than 10% of restaurant workers experienced sexual harassment. Women comprise over 70% of food servers and similarly make up nearly three-quarters of all low-wage labor. These stats are staggering, but they are a sliver of what's happening. According to a 2013 Huffington Post poll, nearly three-quarters of people who face harassment fail to come forward.
    And a recent ABC News/Washington Post poll found that 25% of women and 10% of men said they experienced sexual harassment at work.
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    The Fair Employment Protection Act, introduced in Congress this past summer, reverses the Vance decision to restore protections and legal remedies for abused workers. Congress should pass this bill.
    Without congressional action, victims won't file lawsuits. For those who do, many will be thrown out. America's legal system will ignore the mounting evidence that women feel vulnerable at work, operating in oppressive environments for them to make a living.
    We very well might witness the ultimate professional glass ceiling shatter this fall with Hillary Clinton taking the White House. Yet without Congress moving on this issue, many workers will still fear reporting to work on November 9.