Civil rights remedies can be a tool for accountability and redress.
If the recent wave of sexual harassment and sexual assault revelations has taught us anything, it’s that we have not done enough to end sexual harassment and gender-based violence.
It has been over 30 years since a unanimous U.S. Supreme Court, in an opinion written by Justice Rehnquist, declared that “without question,” a supervisor’s unwanted sexual advances at work are a form of unlawful sex discrimination. It has been over 25 years since the Clarence Thomas hearings spurred a national conversation about sexual harassment in the workplace. And it has been over 10 years since social activist and community organizer Tarana Burke coined the phrase “Me Too” to promote empowerment, primarily among women of color, who experienced sexual abuse.
The fact that #MeToo has taken off as a viral hashtag is a stark reminder that gender-based violence and harassment persist despite years of public attention and law reform. This is true even in the workplace, where there is a body of decisions from cases brought over the last 30 years. It’s clear that we need to refocus our public dialogue and use of the law on how to actually stop gender-based violence and harassment, both in and out of the workplace. To that end, we need more meaningful measures of accountability, which include civil rights remedies that shift the focus from punishing the offender to providing redress for the victim while holding the offender accountable.
As commentators such as Judith Levine, who has written several books about sex and gender, Masha Gessen of the New Yorker, and Rebecca Traister of New York Magazine have pointed out, punitive approaches that rush to judgment and sanctioning those accused of sexual misconduct risk over-policing women’s virtue and casting women as victims who lack agency. These approaches also advance policies that prioritize incarceration over personal responsibility, while doing little to dismantle power disparities that leave marginalized groups vulnerable. Responses that reflexively pronounce success when those accused of abuse are fired or punished may compromise due process safeguards we all should value, particularly in these times when rights are under threat on multiple fronts.
As we consider new responses to sexual assault and abuse, we should look beyond punishment as the sole goal and should find ways to gauge when someone has meaningfully taken responsibility for harmful actions. Restorative justice — practices that provide opportunities for the victim to communicate to the offender the impact of the offense in a safe setting and to jointly come up with ways the offender can take responsibility — are being explored and hold promise for alternative approaches. These could include an apology, training, or engagement in community service and dialog.
On the legal front, we need to fix loopholes in existing civil rights laws so that they more effectively compensate those harmed by sexual harassment and gender violence as well as do a better job of deterring it. Civil rights remedies, such as federal and state anti-discrimination laws, can be used against those who commit acts of gender-based violence and harassment. However, these laws are limited — both in the spheres in which they apply and the actors who may be held accountable. Most civil rights laws prohibit gender-based violence and harassment at work, in housing, and by state actors. In the workplace, they often only hold employers or managers accountable and may not reach the individuals who actually committed the abuse. There is no federal civil rights law that provides a remedy for gender-based violence or harassment committed by a private individual — which is the most common form.
For a brief six years, such a remedy was available under the 1994 Violence Against Women Act. A civil rights provision of VAWA enabled survivors of gender violence and harassment to sue abusers and to be compensated for their losses as a result. But in 2000, in U.S. v. Morrison, a case brought by a college student raped at school in her first semester of college, the Supreme Court struck down the law on the basis that Congress exceeded its authority in passing federal legislation that interfered with state’s rights.
Although there is no longer a federal law enabling a woman to file a civil suit against her individual harasser, over a dozen state statutes allow individuals who have committed gender-based harm to be held to account. For example, under Illinois’ Gender Violence Act, a woman was able to bring a claim against her eye doctor, who repeatedly sexually assaulted her during and in the course of her treatments. And in New York City, a woman attacked for her actual or perceived sexual orientation or gender identity while eating brunch at a Sizzler restaurant reached a settlement with the restaurant and its manager under New York City and New York State’s gender violence laws.
After Morrison, Congress introduced the Violence Against Women Civil Rights Restoration Act of 2001, legislation that would retain a federal civil rights remedy for gender violence while addressing the issues the Supreme Court found problematic. This could be the time to revive those proposals and to make more use of the laws on the books in the states.
While a civil rights remedy is not a panacea, it can offer recourse for those who suffer harassment outside of traditional employment relationships. This could include low-wage workers, who are often employed as independent contractors rather than employees, as well as models and actors. It also could provide a civil rights-based remedy for those harassed or assaulted by individuals at places like malls or other public forums, which are not otherwise covered by anti-discrimination laws. These civil rights laws sometimes include longer statutes of limitations and may allow successful plaintiffs to recover attorneys’ fees from the defendant. And they frame sexual assault, harassment, and other forms of gender-based violence as a problem of civil rights and discrimination, which can provide a critical frame for shifting dialog, rhetoric, and culture.
The mood in the country is ripe for action to end gender-based violence and harassment. The moment calls on all of us to take stock, to consider new strategies, and to enact and use laws to hold those who commit abuse accountable and to compensate those who are harmed.
Julie Goldscheid is a professor at CUNY Law School. She argued U.S. v. Morrison at the Supreme Court. The views expressed in the article are the author's own and do not necessarily represent or reflect the views of the ACLU.