UC Berkeley

Abstract

Hostile Environment?

The Development of Sexual Harassment Law in the United States 1971 - 1991

by Pamela Coukos

Doctor of Philosophy in Jurisprudence and Social Policy

University of California, Berkeley

Professor Lauren B. Edelman, Chair

How did the sexual harassment litigation campaign succeed in defining a new antidiscrimination principle in the midst of the Reagan-era backlash against civil rights? In 1986, the U.S. Supreme Court definitively established sexual harassment as a violation of Title VII. Meritor v. Vinson, 477 U.S. 57 (1986). This unanimous conclusion, with an opinion drafted by conservative jurist William Rehnquist, capped a series of victories for sexual harassment plaintiffs in the federal appellate courts. This feminist revolution gained steam at the same moment as the Reagan-era conservative backlash against civil rights law began. Legal accountability for sexually hostile work environments seemingly developed in a hostile political environment.

My aim is to use this case to ask when and how organized rights mobilization can be effective despite a seemingly hostile political climate. In particular, I explore the role of litigants, who make important decisions about how rights are contested in our legal system. The work of parties in general, and social movements in particular, remains both relatively under-theorized in public law, and frequently absent from prominent empirical works.

Working from findings of socio-legal literatures on claims mobilization, law and organizations, and law and social movements, I identify and assess potential explanatory factors: (1) characteristics and strategies of the individuals, lawyers, and movement organizations who engaged the legal system for and against this claim; (2) the political opportunity structure; (3) networks and resources provided by organizations and professionals, which act to construct and diffuse legal meaning and engage the legal system and (4) how law itself serves as a resource to movements and individuals mobilizing rights. While this literature, taken together, provides a potential theoretical framework, little prior work specifically addresses how social movements use law to overcome politically hostile opponents.

In a multi-method study I ultimately conclude that a combination of historically fortuitous timing, differences in organization and engagement between proponents and opponents, and the effect of path-dependent legal decisionmaking made it possible to defend a liberal legal expansion during a period of civil rights retrenchment. I also find evidence that the shift in partisan control had a lagged negative effect on plaintiff success rates.