Seventh Circuit Review


Does calling a female employee "bitch" constitute harassment actionable under Title VII of the Civil Rights Act of 1964? In 1996, in Galloway v. General Motors Service Parts, the Seventh Circuit concluded that it does not. More recently, in Passananti v. Cook County, the court held that such conduct may indeed violate Title VII.

A plaintiff who brings a Title VII claim is required to prove that she was harassed "because of sex." In both of the above cases, the Seventh Circuit interpreted this causation requirement to mean that the harasser must be subjectively motivated by the plaintiff's sex. In Galloway, the court concluded that the harasser harbored a personal animus toward the plaintiff and thus did not act on the basis of sex. In Passananti, the court found that because there was no evidence of personal animus, the harasser was probably motivated by the plaintiff's sex.

This Note argues that Title VII does not mandate an inquiry into the harasser's subjective mental state to establish the causation element in harassment cases. The subjective motivation standard adopted by the Seventh Circuit erroneously borrows an intent-based causation requirement from discrimination cases involving adverse employment decisions. This approach is too deferential to employers because harassment, unlike a personnel decision, does not entail a presumptively valid exercise of business judgment. Furthermore, the assumption that actionable harassment must be driven by conscious hostility toward women ignores the reality that discrimination today is more likely to result from unconscious bias.

This Note develops an alternative to the subjective motivation standard. It proposes that courts analyze causation from the victim's point of view.

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