Sex Discrimination and Harassment

OVERVIEW:

Sex discrimination is governed by many of the same principles that address race and national origin discrimination. Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate in the workplace on the basis of sex in hiring, promotion, training, termination, and pay. It also makes it illegal to discriminate or harass employees based on sex, pregnancy or child care.

Title VII covers employers with 15 or more employees that work 20 or more calendar weeks in a year. The statute is enforced by the Equal Employment Opportunity Commission (the "EEOC.")

There is a separate section of the Help Center which addresses the issues of medical leave and pregnancy discrimination. This section of the Help Center addresses sexual harassment, sex discrimination, and equal pay issues.

SEXUAL HARASSMENT:

Sex discrimination and sexual harassment are two different areas of law. Sexual harassment is defined by the EEOC as unwelcome verbal or physical conduct of a sexual nature as a condition of employment or as a basis for personnel decisions.

Sexual harassment can also exist if there is a "hostile environment." This can result from repeated practical and other jokes of a sexual nature, and harassing statements. Liability for a hostile environment usually depends on whether a supervisor or someone responsible for the employer knew of the acts constituting a hostile environment.

One employee propositioning another is not sexual harassment unless that person makes personnel decisions or unless the activity is widespread enough to poison the work atmosphere.

To win a sexual harassment claim under Title VII, the plaintiff must prove:

• that he or she was subjected to unwelcome harassment,
• that the harassment was based on sex,
• that the work atmosphere was hostile, and
• that the employer knew or should have known of the harassment.

Many state laws add to the protection available under Title VII. Some of them cover employers which are not covered by the federal law.

SEXUAL DISCRIMINATION:

Employers cannot have employment policies that intentionally or unintentionally discriminate on the basis of sex. It is also illegal to retaliate against employees for claiming the protections offered by this law.

Cases of intentional discrimination can be addressed by plaintiffs suing under a "disparate treatment" cause of action under Title VII. Under the disparate treatment theory, the plaintiff must first establish a basic case of discrimination. This basic or "prima facie" case is made by showing:

1. membership in a protected group;
2. satisfactory job performance by the employee;
3. termination or another adverse employment action taken against the employee; and
4. replacement of the employee by someone outside the protected group who has equal or lesser qualifications.

If the plaintiff can make this "prima facie" case, the burden of proof shifts to the employer to show a legitimate, nondiscriminatory reason for the challenged employment practice. If the employer cannot do this, the plaintiff wins.

If the employer can do this, the plaintiff has to show that the employer's proffered "legitimate" reason is only a sham in order to win the case. The employee must also show that the real reason was sex discrimination.

UNINTENTIONAL DISCRIMINATION

Discrimination may be unintentional, but still harmful. These cases are addressed by plaintiffs suing under a "disparate impact" cause of action under Title VII. Under the "disparate impact" theory, the plaintiff must show that a facially neutral employment practice has a significant adverse effect on women compared to others. The plaintiff does not have to show that the employer had a discriminatory motivation.

EMPLOYER DEFENSES

Title VII allows differential treatment of men and women based on a "bona fide occupational qualification" or BFOQ. The use the BFOQ argument as a defense to an employee's Title VII claim. The BFOQ defense is a claim by the employer that the nature of the position required the particular employment practice being challenged.

It is difficult for employers to show a BFOQ based on sex. An example of a "bona fide occupational qualification" in the area of handicap discrimination will show why. It would be legal to discriminate against people in wheelchairs if you were hiring for the position of marathon runner. Requiring legs would be a BFOQ in that case. However, it's tough to imagine a situation where sex really would be a bona fide occupational qualification.

RETALIATION

Employers cannot retaliate against an employee for opposing an unlawful discrimination practice. Firing someone for filing a charge with the Equal Employment Opportunity Commission (EEOC) is a Title VII violation. The mechanism for filing a charge with the EEOC is discussed elsewhere in the Help Center.

EQUAL PAY ISSUES:

The Equal Pay Act requires similar pay for substantially similar jobs. The difficulty for plaintiffs in this area has been to show that one job is substantially similar to another.

Many lawsuits under the Equal Pay Act have failed when based on "comparable worth" arguments. The "comparable worth" argument is that the skills and training in some female-dominated jobs (i.e., secretarial work) are equivalent or greater to those of some categories of male-dominated jobs (i.e., construction work). The comparable worth theory argues that greater salaries given to construction workers is a form of sex-based discrimination against secretaries. These arguments have been rejected by courts and by the EEOC.

Only jobs which are substantially similar, and which are performed under substantially similar conditions, will be compared. The Equal Pay Act allows unequal payment for similar jobs if it is based on a merit system, on the quantity or quality of work, or on any factor other than sex.

Copyright 1996 David Trieloff, Esq.

Mr. Trieloff passed away on April 16th, 1998 and is sadly missed by the staff of the Business Know-How where he was a member of the volunteer staff.