85 Pages Posted: 16 Jun 2004
In this article, I propose the reconceptualization of sexual harassment in the workplace as a form of disparate impact discrimination, in addition to the more traditional conceptualization of sexual harassment as a form of disparate treatment. Under the disparate treatment theory, a showing of intent to discriminate and different treatment of men and women is generally required, and in a number of recent cases, the courts have found these elements to be lacking, either because of uncertainty as to whether the harassment might have been motivated by some factor other than gender or because both men and women have been subjected to similar conduct. By contrast, the disparate impact theory focuses on the disproportionate effects of employer actions, regardless of the intent of the employer, and can result in liability even when no different treatment on the basis of gender has occurred. The disparate impact theory should be applicable to sexual harassment cases because women - as a group - are disproportionately disadvantaged by the presence of sexually harassing conduct in the workplace.
This article examines the degree to which the existing requirements of sexual harassment claims are consistent with the theoretical foundation of the disparate impact theory and explains how a sexual harassment claim could meet the doctrinal requirements of the theory. The article concludes that sexual harassment claims can be asserted under either the disparate treatment or the disparate impact theory, consistent with the existing statutory provisions of Title VII of the Civil Rights Act of 1964 and current judicial interpretations of those provisions.
Keywords: Title VII, harassment, disparate impact, Meritor, Oncale, Griggs
JEL Classification: J70, J71, J78, K31
Suggested Citation: Suggested Citation
Hebert, L. Camille, The Disparate Impact of Sexual Harassment: Does Motive Matter?. University of Kansas Law Review, Vol. 53, 2004. Available at SSRN: https://ssrn.com/abstract=555341