Courts Strengthening Title VII Harassment Protections

September 21, 2018

Amid calls for stronger protections against sexual harassment, a recent 7th Circuit ruling finding an employer liable for inappropriate harassment by customers is the latest in a string of court decisions that are effectively lowering the burden for proving that unwelcome conduct is deemed “severe or pervasive” under Title VII of the Civil Rights Act.
The decision in EEOC v. Costco Wholesale Corp determined that a customer’s conduct toward an employee does not have to be “overtly sexual” to create a hostile work environment under Title VII and that a tepid response to harassment claims can trigger liability for employers.
The court found the company's response was “unreasonably weak” with regard to an employee's complaints, rejecting the company’s claims that the customer's conduct was not lewd enough to create a hostile environment.
  • The customer “constantly” tried to talk to her and give her his phone number.  He watched her, asked questions about where she lived, who her boyfriend was, and told her she was “pretty,” “beautiful,” and “exotic” while also noting she “look[ed] scared.”
Meanwhile, the bipartisan House Congressional Caucus for Women’s Issues was urged by witnesses to lower the burden on employees to prove sexual harassment and set a standard that the courts can uniformly apply.  The leading bipartisan measure does not address the standard.
A letter from congressional staff also urges Congress to finalize legislation to strengthen Capitol Hill's harassment protections.  Although an agreement before the midterm elections is unlikely, some measure could move before the end of the year in a lame duck session and set the stage for Congress to turn its attention to the private sector next year. 
Outlook:  Advocacy groups and proponents in Congress will continue to press for legislation addressing private sector harassment issues.  The House hearing, titled “#MeToo, What’s Next? Turning a Movement into Action,” sets up potential action in the next Congress.