What counts as discrimination?
Recent news headlines have focused on allegations of sexual harassment against film tycoon Harvey Weinstein. While the allegations are troubling, they also provide us with an opportunity to consider whether employment discrimination law would properly respond to them. In the United States, the answer is not as clear as one might hope.
Even though many of the women claim that Mr. Weinstein’s actions related to work, American employment discrimination law may not cover these women. Title VII is the federal statute that prohibits sex discrimination in employment in the United States. However, the statute has a major loophole: it does not protect independent contractors, interns, or most volunteers. The courts have interpreted Title VII as limited to the context of employers and their applicants, current employees, and former employees. If a person falls outside of these categories, Title VII does not protect them from sex discrimination, even if that discrimination is occurring in a scenario that we would otherwise classify as work. Individual state laws may provide some protection, but federal law does not.
It is more surprising to learn that even if some of the women in the Weinstein case fell within Title VII’s protections, they still might not be able to prove sexual harassment. The American courts have developed a framework for evaluating harassment claims that requires the harassment to be severe or pervasive. While a single sexual assault would qualify the worker for protection, courts often dismiss harassment cases where men repeatedly ask women out on dates or for sexual favors, as this behavior is deemed not to meet the requirements stated above. Courts have also dismissed cases where women have presented evidence that men have groped their breasts or buttocks. When courts dismiss these cases, they reason that the conduct is not serious enough to constitute harassment.