Title VII was intended to remedy discrimination; thus, it is ironic that the courts themselves discriminate among "terms and conditions of employment" by treating hostile environment discrimination less favorably, most commonly in sexual harassment cases. As the Supreme Court said in its first sexual harassment case, hostile environment harassment must be "severe or pervasive" to be actionable. However, many lower courts have used this language to excuse harassment against women. This Article suggests that the problem originates in the Court's continued use of the phrase "severe or pervasive" to describe actionable conduct. This rather dramatic terminology in fact overstates the Supreme Court's later interpretation of the phrase "severe or pervasive." In Harris v. Forklift Systems, Inc., the Court held that to be actionable the discriminatory conduct had to "create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive." Such conduct falls far short of "severe or pervasive." Unfortunately, the Supreme Court has continued to use the phrase "severe or pervasive," and many lower courts have misinterpreted the standard, using it to bar causes of action by employees who have been subjected to egregious conduct that, in many cases, would be criminal or at least would outrage any reasonable person.
62 Md. L. Rev. 85 (2003).