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Things began to change, albeit slowly, in the '60s. In 1964 Southern members of Congress tacked "sex" onto the list of protections in the pending Civil Rights Act, not because they cared about harassment but because they thought the idea so laughable that it would kill the entire bill. It wasn't until the 1970s that courts started taking the antidiscrimination provisions on sex seriously, and not until 1977 that a federal court of any stature--the U.S. Court of Appeals for the District of Columbia--said quid pro quo harassment violated the act. After the 1991 furor between Anita Hill and Clarence Thomas raised public consciousness, George Bush signed a law granting sexual-harassment plaintiffs the right to jury trials and big-money damages.
Even then, quid pro quo cases remained tough to prove, since employers could simply say the retribution resulted from poor job performance. Victims began to point out that co-workers could create an abusive climate against women without actually demanding sex in exchange for something. One such victim was Mechelle Vinson. In the 1970s Vinson worked as a teller at Meritor Savings Bank, where, she later claimed, her boss began asking her for dates. At first she said no, but eventually she relented; she estimated they had sex 40 or 50 times. She claimed that she felt pressured into the relationship and that he exposed himself, groped her at work and even raped her several times. Still, he never fired or even demoted her when she objected. Vinson lost her court case.
With the support of several women's groups, however, she appealed. In 1986 the Supreme Court ruled in her favor--and in doing so threw open a huge new arena for sexual-harassment claims. In its first ruling ever on sexual harassment, the court held that speech or conduct in itself can create a "hostile environment"--like the one Vinson alleged at Meritor--and that such an environment violates the Civil Rights Act. According to the Justices, unwelcome verbal or physical behavior, if "severe or pervasive" enough, is discriminatory even when there is no quid pro quo.
Today quid pro quo cases remain hard to win, and most sexual-harassment cases are based on the looser principle of "hostile environment." At a trial last year, Staci Bonner, a former research editor suing Spin magazine and its publisher Bob Guccione Jr., failed to convince a jury that because Guccione gave choice assignments and other perks to women who slept with him--but not to her--he was guilty of quid pro quo harassment. But the jury did say that his apparent favoritism, as well as other editors' coarse propositions and unwanted back rubs, created a hostile environment at the music magazine. The case is being appealed.
Given the expansive terminology, just about anything can count as a hostile environment, depending on who's defining the terms. In 1995 the Montana Human Rights Commission awarded damages to Josephine Dernovich, a former municipal clerk horrified by smutty pictures her co-workers passed around. The images were stomach churning to her--some depicted bestiality and incest--but no one else complained. None of the pictures was directed solely at her, and most of her colleagues were women. It's hard to understand how she was discriminated against because of her sex (and not, say, her attitudes about sexual pictures). Still, Dernovich won.