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62 Md. L. Rev. 85 (2003)
License to Harass Women: Requiring Hostile Environment Sexual Harassment to Be Severe or Pervasive Discriminates among Terms and Conditions of Employment

handle is hein.journals/mllr62 and id is 95 raw text is: 


                 LICENSE TO HARASS WOMEN:
 REQUIRING HOSTILE ENVIRONMENT SEXUAL HARASSMENT
 TO BE SEVERE OR PERVASIVE DISCRIMINATES AMONG
        TERMS AND CONDITIONS OF EMPLOYMENT


                        JUDITH J. JOHNSON*


                           INTRODUCTION

     Title VII was intended to remedy discrimination; thus, it is ironic
that the courts themselves discriminate among terms and conditions
of employment by treating hostile environment discrimination less
favorably, most commonly in sexual harassment cases. As the Su-
preme Court said in its first sexual harassment case, hostile environ-
ment harassment must be severe or pervasive to be actionable.1
However, many lower courts have used this language to excuse harass-
ment against women. This Article suggests that the problem
originates in the Court's continued use of the phrase severe or perva-
sive to describe actionable conduct. This rather dramatic terminol-
ogy in fact overstates the Supreme Court's later interpretation of the
phrase severe or pervasive. In Harris v. Forklift Systems, Inc.,2 the
Court held that to be actionable the discriminatory conduct had to
create an objectively hostile or abusive work environment-an envi-
ronment that a reasonable person would find hostile or abusive.3
Such conduct falls far short of severe or pervasive. Unfortunately,
the Supreme Court has continued to use the phrase severe or perva-
sive, and many lower courts have misinterpreted the standard, using
it to bar causes of action by employees who have been subjected to



    * Professor of Law, Mississippi College School of Law. B.A., University of Texas at
Austin; J.D., University of Mississippi. I would like to thank Elizabeth Jones, Mark Modak-
Truran, Matthew Steffey and Carol West for editorial assistance and Suzanne Collip, Sibyl
Byrd, Della Berry, Olivia Taylor and Heather Aby for editorial and research assistance.
    1. Meritor Say. Bank, F.S.B. v. Vinson, 477 U.S. 57, 67 (1986).
    2. 510 U.S. 17 (1993).
    3. Id. at 21. The holding in Harris affirmed a middle path between making actiona-
ble any conduct that is merely offensive and that which causes a tangible psychological
injury. Id. The discriminatory conduct must be enough to be subjectively perceived by
the plaintiff, but need not be so great that it leads to physical or psychological impairment.
Id. at 21-22. In other words, the conduct must produce an environment that would rea-
sonably be perceived, and is perceived, as hostile or abusive. Id. at 22.

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