This Article analyzes the substantive and procedural problems created by the federal judiciary in Title VII hostile work environment law that concurrently drains federal anti-harassment law of its meaning. The premise is that, at least for the near future, relying on federal courts and/or the U.S. Congress to protect employees' civil rights is likely fruitless. Instead, we should encourage state legislatures that seek to improve civil rights in employment in their own jurisdictions and state supreme courts to interpret their own state laws to recognize employees' civil rights to the fullest extent possible. Part II analyzes how federal courts decide cases under Title VII. It focuses on how procedural injustice, combined with the courts' creation of substantive doctrines that help them dispose of cases earlier in the litigation process, deprives the most vulnerable workers of their civil rights. Finally, Part III discusses how states can protect workers' rights to be free of race- and sex-based harassment by enacting more protective legislation, refusing to adopt federal procedures, and limiting doctrines when courts interpret their own state laws.
30 Am. U. J. Gender Soc. Pol'y & L. 245 (2022).
McGinley, Ann C., "Laboratories of Democracy: State Law as a Partial Solution to Workplace Harassment" (2022). Scholarly Works. 1395.