We should revisit what protections are available to these state workers and push for reforms that further sexual equality. One way to do so is to decrease the size of Title VII’s trapdoor. This Note aims to fight sexual harassment in politics by advocating for a narrower understanding of the trapdoor, such that more plaintiffs are eligible to bring Title VII actions rather than Government Employee Rights Act of 1991 (GERA) actions. Specifically, this Note explains why the “personal staff” trapdoor should be narrowed and then provides a method for how to do so—by settling a circuit split on the interpretation of “personal staff.”
Part I explains the relationship between Title VII and GERA. It illustrates the machinery behind the trapdoor and details how the “personal staff” exemption can take a charging party out of Title VII and plug them into GERA. Part II then presents policy reasons for narrowing the “personal staff” exemption. While GERA does offer some protection, the protections of Title VII are more desirable. Given the context of state politics, Title VII offers a better forum (federal court and juries), better remedies (punitive damages), and better oversight by the EEOC (through Commissioner charges). Furthermore, extending Title VII protection to state government workers will give them equivalent protection to congressional workers. Whereas Part II explains “why,” Parts III and IV describe “how.” Part III details the circuit split over the “personal staff” exemption. In deciding between two multifactor balancing tests, one by the Fourth Circuit and one by the Fifth Circuit, Section IV.A argues that the Fourth Circuit’s test will better narrow the trapdoor and offer more litigants Title VII protection. Section IV.B then provides a legal basis for choosing the Fourth Circuit’s test. Because the Fourth Circuit test better aligns with congressional intent, Title VII’s legislative purpose, and agency interpretations of the statue, it represents the proper interpretation of the “personal staff” exemption and should be favored.
Narrowing the Trapdoor of the Government Employee Rights Act,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol95/iss1/9