Gender-Based Harassment and the Hostile Work Environment
![handle is hein.journals/duklr1990 and id is 1374 raw text is: GENDER-BASED HARASSMENT AND THE
HOSTILE WORK ENVIRONMENT
I. INTRODUCTION
Gender discrimination is a pervasive evil that potentially confronts
all women who enter the job market. Title VII of the Civil Rights Act of
1964 provides female employees with remedies for gender discrimination
affecting the terms, conditions, or privileges of their employment.'
When an employer discriminates against women with regard to tradi-
tional terms of employment, such as hiring, firing, and promotion, ag-
grieved employees may seek a remedy under Title VII by filing disparate
treatment or disparate impact claims.2 Gender discrimination, however,
often affects an altogether different aspect of the employment relation-
ship-the work atmosphere. Courts have recognized that the environ-
ment in which an employee works is a protected term of employment
under Title VII.3 Female employees may thus bring what are known as
hostile work environment actions to remedy gender discrimination
that poisons the work atmosphere.4
1. Title VII of the Civil Rights Act of 1964, § 703, 42 U.S.C. § 2000e-2 (1988). Subsection (a)
of the statute provides:
It shall be an unlawful employment practice for an employer-(l) to fail or refuse to hire
or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national origin.
Id. § 2000e-2(a)(l).
2. For the standards of proof for a disparate treatment claim, see McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) (allegation of racially discriminatory refusal to re-hire a black employee);
and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) (allegation of gender dis-
crimination in employer's decision not to promote and to subsequently terminate female employee).
For the standards of proof for a disparate impact claim, see Griggs v. Duke Power Co., 401 U.S. 424
(1971) (allegation that high school diploma requirement and use of standardized intelligence test as
criteria for hiring and promotion have racially discriminatory impact); Watson v. Fort Worth Bank
& Trust, 487 U.S. 977 (1988) (allegation that use of subjective criteria in promotion decisions has
racially discriminatory impact); Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642 (1989) (alle-
gation that employer's hiring and promotion policies create racial stratification in work force).
3. See Meritor Say. Bank v. Vinson, 477 U.S. 57, 65 (1986) (Title VII affords employees the
right to work in an environment free from discriminatory intimidation, ridicule, and insult.); Rog-
ers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) (the phrase 'terms, conditions, or privileges of
employment' in Section 703 [codified at 42 U.S.C. § 2000e (1988)] is an expansive concept which
sweeps within its protective ambit the practice of creating a working environment heavily charged
with ethnic or racial discrimination.), cert. denied, 406 U.S. 957 (1972). The extent to which the
work environment is a protected term of employment is discussed in Part II of this Note.
4. See Meritor, 477 U.S. at 66. See infra text accompanying note 9. The hostile work environ-
ment remedy is also available for discrimination based on race, religion, and national origin. See
infra note 22.
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Gender-Based Harassment and the Hostile Work Environment
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