|Theodore Roosevelt National Park|
The recent attack on Eugene Scalia, Trump's nominee to be Labor Secretary, belies an ignorance of the very legal concepts that his attackers purport to defend. In 1998, Scalia wrote an insightful and prescient law review article that criticized the legal doctrine of "quid pro quo sexual harassment," the brainchild of law professor Catherine MacKinnon. Far from being worthy of scorn, Scalia's article should be praised for being spot on. Only a few months after the article was published, the Supreme Court wholeheartedly agreed with Scalia's central contention -- that the doctrine of quid pro quo sexual harassment is a confusing extra-statutory creation that adds little to traditional legal analysis.
As Scalia pointed out, no one disputed in 1998 that if an employee is subjected to retaliation for rejecting a sexual proposition, the employer is strictly liable for the adverse action. Previously, employers had argued that firing an employee for rejecting a sexual advance is personal and not a form of sex discrimination. The concept of quid pro quo sexual harassment responded to those contentions, but it was redundant from the get-go because it referred to cases that were clearly unlawful under existing legal principles. Refusing to hire a female applicant because you don't want a woman in the position is not legally distinguishable from refusing to hire a woman because she rejected your sexual advances. Each is an example of a woman unlawfully denied a job based on her sex.
Most devastating for defenders of quid pro quo doctrine is Scalia's discussion of submission cases. Consider the "quid without quo scenario," in which an individual submits to sexual advances but is denied the promised job benefit. If the supervisor provided the benefit, then the individual was subjected to quid pro quo sexual harassment, but if the supervisor reneged, then the individual would not have a quid pro quo claim. This result in which the employee who was treated better has the stronger claim is patently absurd.
Scalia may or may not be well-qualified for the Labor post, but his 1998 law review article certainly does not disqualify him. Reactions to the article reflect more than mere disagreement with his views -- they also reflect the fear that he is sharp and competent enough to defend his own views and explain why his opponents are wrong.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.