Added: September 5, 2015 – Last updated: September 5, 2015


Author: Pamela Coukos

Title: Hostile Environment?

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

Thesis: Ph.D. Thesis, University of California at Berkeley

Year: Fall 2011

Pages: 123pp.

Language: English

Keywords: 20th Century | U.S. History | Prosecution: Laws; Types: Sexual Harassment


Link: eScholarship: Open-Access Scholarly Publishing Services to the University of California (Free Access)



»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.« (Source: Thesis)


  Figures and Tables (p. ii)
  Acknowledgements (p. iii)
  Chapter 1 (Introduction)
How Did Sexual Harassment Law Survive the Reagan Revolution? (p. 1)
    Abstract (p. 1)
    Summary (p. 1)
    A New Civil Right (p. 5)
    Situating this Project in the Existing Literature (p. 9)
    Research Questions and Methodology (p. 14)
    Summary of the Chapters That Follow (p. 19)
  Chapter 2
From MacKinnon to Meritor: Grassroots Litigants and Lawyers Build to an Organized Feminist Mobilization (1971-1986) (p. 21)
    Abstract (p. 21)
    Introduction (p. 21)
    Social Movements and Legal Change (p. 23)
    Cause Lawyering and Claims Mobilization (p. 26)
    Plaintiffs as Political Actors (p. 28)
    The Invention of Sexual Harassment (p. 30)
    An Eclectic Array of Legal Professionals Constructs a New Legal Claim (p. 37)
    The U.S. EEOC (p. 39)
    Evolving from Individuals to Structure (p. 41)
    Bridges and Resources (p. 44)
  Chapter 3
Backlash Politics and Sexual Harassment Law (1981-1991) (p. 46)
    Abstract (p. 46)
    Introduction (p. 46)
    The New Administration Opens for Business (p. 49)
    The Civil Rights Backlash (p. 50)
    The Reagan Revolution and the Federal Courts (p. 51)
    Bureaucratic Resistance at the EEOC (p. 53)
    Legislative Politics and Sexual Harassment Law (p. 57)
    Structural Constraints on the Meritor Decision (p. 57)
  Chapter 4
Law, Politics and Social Change (p. 59)
    Abstract (p. 59)
    The Legal Model (p. 61)
    The Social Science Model (p. 66)
    Emerging Hybrid Accounts (p. 70)
    Data and Methodology (p. 72)
    Results of the Network Analysis (p. 76)
    Result - Logistic Regression Analysis (p. 83)
    Summary of Results (p. 91)
  Chapter 5
Conclusion - Fitting This Case Into a Law and Society Framework (p. 93)
    Abstract (p. 93)
  Bibliography (p. 100)
  Appendix 1: Court of Appeals Cases in Dataset (p. 110)
  Appendix 2: District Court Cases in Dataset (p. 114)
  Appendix 3: Variables Coded in Court of Appeals Dataset (p. 116)
  Appendix 4: Timeline of Significant Events (p. 122)

Wikipedia: Sexual harassment