The “Severe or Pervasive” Hurdle to Sexual Harassment Cases

Serving Clients in Virginia Beach, Hampton Roads, Washington D.C. & Throughout the U.S.

Sexual HarassmentThis fall has seen an empowering movement for women who have been sexually harassed in the workplace. From revelations about the egregious conduct of one of the most powerful men in Hollywood, Harvey Weinstein, to the downfall of one of the most recognizable faces in network news, Matt Lauer, America has begun to see how pervasive sexual harassment in the workplace is.

The #metoo trend on social media has given victims a voice and a national stage on which to be heard, but the question many people are asking is why have men been traditionally given free rein to harass their females co-workers and subordinates.

The answer lies partially in a Supreme Court decision from 1986, Meritor Savings Bank v. Vinson. The landmark decision officially recognized sexual harassment as a prohibited form of discrimination under Title VII of the Civil Rights Act, which was a giant step forward in leveling the playfield for women in the workplace. However, the case limited actionable harassment to those instances that were “severe or pervasive.” Although those words do not appear in Title VII, they have since been held as the legal threshold for bringing a sexual harassment case. When a judge is deciding whether to dismiss a case before trial, he or she does not determine whether the alleged facts actually happened, but instead uses the severe and pervasive standard to determine whether a jury could reasonably find for the plaintiff given the alleged facts.

The result of this standard is that cases that involve some truly abhorrent conduct can still be dismissed, such as Weiss v. Coca-Cola Bottling Company, in which a woman’s supervisor attempted to kiss her, touched her without permission, and left “I love you” signs at her desk.

The message that dismissals like this have sent to women over the last 30 years is that sexual harassment has to rise to truly unbearable heights in order to be considered actionable. Without recourse for “lesser” offenses of sexual harassment, the American work culture has evolved to accept a certain amount of unwanted sexual advances as part of the normal cost of doing business as a woman.

Encouragingly, over the past several months women have begun to stand up en masse and declare that zero tolerance is the only acceptable standard. We, of course, have a long history of precedence to overturn to make that standard closer to a legal reality, but each woman who stands up for her rights is a step in the right direction.  

Call James H. Shoemaker Today for Help

Are you ready to take a stand against sexual harassment? James Shoemaker can help you. With over 20 years of experience, attorney Shoemaker is a compassionate and dedicated employment lawyer who can help you understand your rights and pursue your sexual harassment case.

If you have faced sexual harassment at your place of work, Attorney Shoemaker is here to stand by your side and help see dignity restored and justice served. Please call our Virginia Beach office at 877-445-3160 to schedule a free and confidential consultation today.

Located in Virginia Beach, Attorney Shoemaker serves victims of sexual harassment and abuse throughout the nation.