HRMN 408 Assignment 2: Discrimination and Harassment Case Study

• Equal Pay Act

• Pregnancy

• Harassment in General

• Employer Liability for Harassment

• Sexual Orientation and Gender Identity

• Other Issues

CHAPTER 15

Gender Discrimination

C o p y r i g h t 2 0 1 7 . S o c i e t y F o r H u m a n R e s o u r c e M a n a g e m e n t .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

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Sex discrimination in employment, along with discrimination based on race, color, religion, or national origin, is covered by Title VII of the Civil Rights Act. It is just as illegal for an employ- er to reject an applicant on gender grounds as it is to reject the applicant on racial or religious grounds. Establishment of a glass ceiling, which limits promotion opportunities for women but not for men, is also illegal under Title VII. In other words, all the Title VII principles that apply to discrimination based on race, color, religion, and national origin generally also apply to gender-based discrimination.

But sex discrimination has some unique features. For one thing, sex discrimination is covered by two additional federal laws—the Equal Pay Act and the Pregnancy Discrimination Act—which do not apply to other forms of discrimination. For another, while the inherent differences between persons of varying races, reli- gions, or national origins are superficial at best, there are real biological differences between men and women. Finally, while the term sex as used in Title VII was probably intended to mean gender, the term can also refer to activity that has nothing to do with discrimination.

The special aspects of sex discrimination are discussed in the fol- lowing sections of this chapter.

EQUAL PAY ACT In addition to its minimum wage and overtime pay provisions, the federal Fair Labor Standards Act (FLSA) as amended by the Equal Pay Act prohibits employers from paying males and females at dif- ferent rates for the same work, unless the differential is based on a factor other than sex. And while executives, administrators, and professionals, among others, are exempt from the overtime pay requirements of the FLSA, they are not exempt from its equal pay requirements. So an employer that pays males more than females for equal work violates the Equal Pay Act and, if the discrimination is intentional, also violates Title VII.

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As noted in Chapter 2, some local jurisdictions, such as New York City, have enacted laws prohibiting employers from asking candi- dates about their compensation history, on the theory that using such information to set salaries just perpetuates gender discrimina- tion. In the absences of such a law, may an employer base its salary offer on the candidate’s compensation history? The Equal Employ- ment Opportunity Commission (EEOC) says no; the few courts that have considered the question are split.

PREGNANCY In 1978, Congress enacted an amendment to Title VII known as the Pregnancy Discrimination Act (PDA). As a result of the PDA, Title VII now defines because of sex as including “because of or on account of pregnancy, childbirth, or related medical conditions; women affected by pregnancy, childbirth, or related medical condi- tions shall be treated the same for all employment-related purpos- es, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”

In other words, discrimination because of pregnancy, childbirth, or a related medical condition is sex discrimination, so that an employer cannot refuse to hire a pregnant woman or a woman of childbearing age because of her pregnancy or because of the possi- bility she may become pregnant.

Nor may an employer have special rules for pregnant women. For example, sick leave must be available to pregnant women on the same basis as it is to others. Similarly, employers that have health or disability insurance plans must cover pregnancy-related expenses and disabilities the same as other medical expenses or disabilities.

Title VII does not require an employer to cover abortions in its group health insurance policies, except when the mother’s life would be endangered if the fetus were carried to term and except when medical complications have arisen from an abortion. However, Title VII permits a plan to cover abortions.

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QUICK TIP The federal Newborns’ and Mothers’ Health Protection Act prohibits group health plans

from cutting off benefits for a mother or her newborn child after less than 48 hours of

hospitalization following a normal vaginal delivery or after less than 96 hours of hos-

pitalization following a Cesarean section. (See Chapter 10 for more on group health

insurance.)

ALERT! For employers with 50 or more employees, extended leave without pay for complications

of pregnancy and childbirth, and to care for newborn children, may be required by the

Family and Medical Leave Act (FMLA). (Chapter 8 discusses the FMLA.)

Forced Leave Generally an employer may not require pregnant women to take leave at a specified point in their pregnancies unless the employ- er can demonstrate a business necessity or bona fide occupational qualification (BFOQ) for the rule. Compulsory leave policies for school teachers have routinely been held to violate Title VII. On the other hand, several cases involving the airline industry have held that mandatory maternity leave for flight attendants was justified by passenger safety considerations.

Job Reassignment An important Supreme Court case involved the use of lead in battery manufacturing. Lead poses substantial health risks, including risks to the fetus of a pregnant woman who is exposed to the substance. When a manufacturing company discovered high lead levels in the blood of its pregnant employees, the company adopted a policy bar- ring all women of childbearing age from jobs involving exposure to lead unless they could document that they were incapable of having children.

The Supreme Court held that the policy amounted to sex dis- crimination despite the company’s benign motives. The court said that the policy could not be justified as a BFOQ, since there was no

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evidence that pregnant women were less able than others to man- ufacture batteries. The court concluded that the question of fetal safety should be for the mother, not the company, to decide, and it dismissed as only a remote possibility the company’s fear of suit by children with birth defects attributed to fetal lead exposure.

Maternity Leave and Reinstatement The EEOC takes the position that since pregnancy and childbirth are conditions unique to women, refusal to grant special leave to a pregnant employee may amount to sex discrimination. In other words, according to the EEOC, the employer had better grant leave (assuming it is medically justified) and hold the job open when the mother is ready to return, unless the employer can show that the job cannot remain vacant and it cannot be filled by a temporary replace- ment. It remains to be seen whether the EEOC’s position will be upheld in the courts.

Paternity Leave Unless the FMLA or a state or local mandatory leave law applies, employers are not legally required to grant paternity leave. Howev- er, if the employer offers maternity leave unrelated to the mother’s medical needs, failure to offer equivalent paternity leave would be discriminatory.

HARASSMENT IN GENERAL When the authors of Title VII added the word sex to the list of char- acteristics that an employer could not consider in making personnel decisions, they probably intended the term to be synonymous with gender. In other words, employers cannot consider gender when establishing pay rates or deciding whether to hire, promote, or fire, just as they cannot consider other characteristics, such as race or color, deemed irrelevant to job performance.

But the courts and the EEOC have ruled that sexual harassment is also a form of discrimination prohibited by Title VII. According to

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the EEOC, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when any of the following occurs:

• Submission to such conduct is made either expressly or implicitly a term or condition of employment.

• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual.

• Such conduct has the purpose or effect of unreasonably interfer- ing with an individual’s work performance or creating an intimi- dating, hostile, or offensive working environment.

The illegality of some forms of sexual harassment can probably be explained by traditional Title VII analysis. Take, for example, a male company supervisor who requests a female subordinate to sleep with him, promising her a promotion if she does and threatening to fire her if she does not. This type of sexual blackmail is discriminatory because the supervisor does not make the same request of any male subordinate. In other words, the supervisor has imposed on a female employee, because of her sex, a term or condition of employment that he has not imposed on a similarly situated male. Sex discrimina- tion of this type has sometimes been called quid pro quo harassment.

Hostile Environment The courts and the EEOC have gone beyond quid pro quo harass- ment, ruling that Title VII is violated by a hostile environment as well. To illustrate, suppose the branch manager of a bank requests sex from a teller who works for him, he touches her sexually, and he makes sexual jokes and comments directed to her or in her pres- ence, but he never promises any tangible job benefit, nor threatens to take any away. The courts have held that the mere creation of an intimidating, hostile, or offensive work environment is a form of sex discrimination because, in effect, the employee must tolerate the hostile environment to keep her job. (If the employee finds the environment so hostile that she actually quits, she may have been

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constructively discharged and have a claim of quid pro quo harass- ment as well. See Chapter 4.)

The above example involves a male seeking sex from a female. But make no mistake—a male who is threatened with dismissal or harassed by a female supervisor has just as good a claim. The EEOC even takes the position (not well supported in the case law) that when an employee of either sex is promoted because he or she sleeps with the boss, other employees who do not get the promotion suffer sex discrimination.

CASE STUDY: TOO HOT TO WORK An Iowa dentist hired a dental assistant just after the assistant received her community college degree. The dentist acknowledged that she was a good assistant during her 10-plus years in his employ, and the assistant herself said that the dentist treated her with respect and was a person of high integrity. The problem was that the dentist developed a strong attraction to his assistant that troubled and distracted him. The two started texting each other on both work and personal matters, although the texts were apparently innocuous and not sexual in nature. At one point, the assistant made a statement about the infrequency of her sex life, and the dentist responded, “That’s like having a Lamborghini in the garage and never driving it.” So far as the court case discloses, however, the dentist never took the Lamborghini for a ride himself.

When the dentist’s wife (who also worked in the dental office) found out about the texting, she demanded that the assistant be fired. After consulting with his pastor, the dentist did exactly that. The assistant then sued, claiming sex discrimination. The Iowa Supreme Court rejected her claim, saying that the civil rights laws are not general fairness statutes. In response to the assistant’s argument that but for her gender she would not have been fired, the court recognized a distinction between an employment decision based on a personal relationship (as this one was) and a decision based on gender itself.

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It should be noted that other courts have held a termination under these circumstances to be sex discrimination.

QUICK TIP Although harassment is most often associated with sex discrimination, harassment

based on any discriminatory factor—race, color, religion, national origin, age, or dis-

ability—is also illegal if it is sufficiently severe to create a hostile work environment.

Same-sex harassment is also illegal under Title VII. In a case involving a male roustabout on an oil rig who was repeated- ly subjected to sex-related, humiliating actions against him by other male members of the crew—including physical assaults and threats of rape—the Supreme Court ruled that sexual harassment of any kind is prohibited.

An offensive environment must be severe and pervasive, but it need not be so intolerable as to force the employee to quit or to cause the employee to suffer psychological injury. It is an envi- ronment that the complaining employee finds offensive and that a reasonable person would find objectionable as well. (In other words, the environment must be both subjectively and objective- ly offensive to support a Title VII claim.)

A super-sensitive employee, for example, who takes offense at the retelling of an off-color TV episode, does not have a good claim. But note that the offended employee need not be the spe- cific target of the harassment in order for the environment to be considered hostile. The routine exchange of pornographic email among a willing group of employees may create a hostile work environment for another employee who is not involved in the exchange but who is simply exposed to the material.

Workplace Civility Code A number of courts have ruled that Title VII is not intended as a code of workplace civility. For example, there should be no Title VII violation when the work environment is equally offensive to

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both male and female employees. This occurred in a strange case involving a supervisor who sought sexual favors from two subor- dinates who happened to be husband and wife. The court found no violation of Title VII because Title VII is premised on elimi- nating discrimination; inappropriate conduct that is inflicted on both sexes or is inflicted regardless of sex is outside the statute’s ambit.

ALERT! When workplace incivility becomes extreme, the employee-victim may have a claim

for intentional infliction of emotional distress (discussed in Chapter 4) whether or

not the incivility amounts to discriminatory conduct.

CASE STUDY: DETERMINING DISCRIMINATORY SEXUAL HARASSMENT A security guard supervisor working under contract at the Environmental Protection Agency disciplined two other guards at the worksite. The two guards, apparently infuriated by the discipline, launched a retaliatory campaign against the supervisor that began by repeated slashing of his tires. Later they taunted him in a sexual manner that included lewd gestures and comments.

In response to the supervisor’s Title VII claim, the court ruled that the harassment he complained about, although tinged with offensive sexual connotations, was not based on his sex. The supervisor did not claim, for example, that the two guards were homosexual or that they were seriously proposing to have sex with him. Nor did the supervisor show that the guards were motivated by general hostility to males in the workplace. Instead, according to the court, the guards were motivated by a workplace grudge having nothing to do with sex.

On the other hand, the U.S. Court of Appeals for the 9th Circuit ruled in effect that even equal opportunity harassment could result in employer liability. In that case, a senior official with an office of the National Education Association was rude,

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overbearing, obnoxious, loud, vulgar, and generally unpleas- ant. Significantly, none of the official’s conduct was of a sexual nature.

The 9th Circuit said that even if male and female employees were being treated the same, a reasonable woman may well have a more negative reaction than her male counterpart to the official’s conduct. In other words, according to the court, because women by nature may feel more intimidated or threatened than men by a supervisor’s obnoxious behavior, even when that behavior is directed equally at all employees, women enjoy less desirable working conditions, and they therefore suffer sex discrimination. (Some would argue that this decision promotes the very gender stereotypes that Title VII was intended to abolish.)

How can an employer possibly distinguish between sexual harassment that is discriminatory and sexual harassment that is not? The short answer is there is no safe way to make the distinc- tion. And despite pronouncements that Title VII was not intend- ed as a workplace civility code, that is exactly what it may have become. At the risk of incurring substantial liability, employers have little choice but to prohibit all teasing, horseplay, banter, and other conduct with sexual overtones for fear that a court may view the conduct as discriminatory harassment.

EMPLOYER LIABILITY FOR HARASSMENT Employer liability for sexual harassment has been a controver- sial issue in the courts. The controversy was heightened by the 1991 amendment to Title VII, which added compensatory and punitive damages as available remedies in cases of intentional discrimination.

The Supreme Court has ruled that an employer is always liable for a hostile work environment created by a supervisor when the discrimination takes the form of a tangible employment action— defined as a significant change in employment status. Usually, but not always, a tangible employment action results in economic

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injury because it relates to matters such as hiring, firing, failing to promote, reassignment with significantly different responsibil- ities, or a significant change in benefits. The theory is that when a supervisor takes a tangible employment action with respect to a subordinate, he or she is exercising authority delegated by the employer company, and the company is automatically responsible for how that authority is exercised.

In a hostile environment case involving no tangible job action, the employer is only presumed liable for a supervisor’s harass- ment. The employer may have an affirmative defense against such a claim, and avoid liability, if the employer can show that it had and enforced a policy against sexual harassment and that the complaining employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer.

To evoke this affirmative defense, the employer must have and enforce a policy against sexual harassment. It is not enough simply to adopt a written policy. Many courts have recognized that employers must educate their workforce about the policy, such as by conducting periodic training for both managers and rank-and- file employees. And employers must promptly and objectively investigate complaints of harassment and take appropriate action if the complaint is found to be justified.

Nonsupervisor Conduct Workplace sexual misconduct is not limited to a supervisor’s mistreatment of subordinates. The employer can also be liable for tolerating a hostile work environment created by an employ- ee’s fellow employees and even nonemployees, such as custom- ers, if the employer knows (or should know) about the offensive work environment but fails to take appropriate remedial action. In effect, the law requires employers to make reasonable efforts to provide a working environment free from hostile or offensive harassment; the law does not necessarily care who is doing the harassing.

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Protective Policies Employers have tried different techniques to protect themselves from claims. Some employers require that employees who are involved in an office romance, particularly if the romance is between a higher-level supervisor and a lower-level employee, sign a love contract setting out the ground rules for the relationship. The contract might have the parties acknowledge, for example, that the relationship is consensual and that it can be terminated by either party at any time. Love contracts seem extreme, how- ever, and may expose the employer to liability for invasion of privacy (discussed in Chapter 18).

While no list of do’s and don’ts can completely protect employ- ers from sexual harassment claims, the following suggestions should go a long way:

• Establish a written nondiscrimination policy, including a spe- cific policy against sexual (and all other forms of) harassment. The policy should define sexual harassment. It should be pub- lished in the employee handbook and posted conspicuously at the workplace. In the absence of a written policy, an employ- er has no chance at all of defending against a claim of hos- tile-environment sexual harassment by a supervisor against a subordinate.

• Include in the policy various means by which an employee can complain about sexual harassment. The complaint route should not be limited to the employee’s immediate supervisor, since he or she may be the harasser.

• Consider installing an anonymous hotline or an interactive website for employees to report harassment and other types of workplace problems.

• Conduct regular training seminars on sexual harassment, atten- dance at which should be mandatory.

• Keep careful records of who attended each training session and what material was presented.

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Gender Discrimination 299

• Plan in advance who will be in charge of investigating com- plaints of sexual harassment and how the investigation will be conducted. (Making those determinations after a complaint is received will cause delay and could result in the harassment policy being ruled unreasonable or ineffective.)

• On receipt of a complaint of sexual harassment, review your employment practices liability insurance policy and give notice of the complaint to your insurance carrier.

• If the complaint involves sexual assaults or other criminal con- duct, suggest that the complaining party make a police report.

• Investigate all complaints of sexual harassment promptly, thor- oughly, and objectively. Consider hiring experienced employ- ment counsel to conduct the investigation or a company that specializes in such investigations.

• Include an interview with the complaining party in the investi- gation. Gather as much detail from him or her as possible about what happened, when and where it happened, and who else saw or knows about the harassment. Also, ask the complainant how he or she would like the matter to be resolved (without making any promises about what action will be taken).

• Treat as confidential all information developed during the investigation. However, do not promise confidentiality, since complete confidentiality is probably not possible. Be careful about prohibiting your workforce from discussing the matter, since that may constitute an unfair labor practice.

• Make a contemporaneous, detailed written record of the investigation.

• If the investigation shows that the complaint is justified, take immediate and appropriate corrective action against the harass- er. Inform the complaining party about the action taken and ask whether there is anything further he or she wishes to bring to the employer’s attention.

• For serious, ongoing incidents, consider temporarily reassign- ing the alleged harasser or complaining party, or placing one

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or both of them on temporary leave with pay, to prevent addi- tional incidents pending your investigation. (This step involves some risk, since the reassignment or leave could be construed as retaliation against the complainant or defamation of the alleged harasser.)

• If the investigation shows the complaint to be unfounded, inform the complaining party and the accused harasser and close the investigation.

• Do not take disciplinary action against the complainant unless it is clear that he or she intentionally lied about the matter. (Retaliation against an employee for exercising rights protect- ed by law, such as the right to complain about harassment, itself constitutes illegal discrimination.)

Sometimes an employee may complain about harassment but then ask management not to take any action, perhaps out of fear that the workplace environment will be further poisoned by an investigation. While it may be tempting to honor this no-action request, once management is on notice of harassment, it has no choice but to address it appropriately.

QUICK TIP The complainant’s own conduct is relevant when investigating a claim of sexual

harassment, such as whether the complainant willingly participated in the activity

that he or she now claims was offensive. However, an investigation that focuses

primarily on the complainant’s own conduct may be viewed as retaliatory and may

subject the employer to additional claims of discrimination.

SEXUAL ORIENTATION AND GENDER IDENTITY Title VII does not explicitly outlaw discrimination because of sexual orientation so, historically, the courts rejected sexual ori- entation as covered by Title VII. In effect, the courts said that sex (meaning gender) and sexual orientation are two distinct concepts.

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An early case involved a homosexual male nurse who worked for a hospital in Indianapolis. The nurse complained that one of his physician supervisors made fun of his homosexuality, yelled at him during telephone conversations, and otherwise treated him poorly, all of which were based on his sexual orientation. The court ruled that Congress used the term sex in Title VII to mean a biological male or biological female and not one’s sexuality or sexual orientation. Therefore, according to the court, harassment based solely on a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.

Since then, however, both the judicial meaning of the term sex and the country’s attitude toward acceptable sexual conduct have undergone dramatic changes. Consider, for example, the follow- ing line of Supreme Court cases:

• Sexual harassment is a form of sex discrimination (Meritor Sav- ings Bank v. Vinson, 1986).

• Discrimination against a female because she does not conform to stereotypical female behavior violates Title VII (Price Water- house v. Hopkins, 1989).

• Male-on-male sexual harassment is sex discrimination (Oncale v. Sundowner Offshore Services, 1998).

• A Texas statute outlawing consensual sex between two adults of the same sex is unconstitutional (Lawrence v. Texas, 2003).

• The Defense of Marriage Act’s definition of spouse as excluding same-sex partners is unconstitutional (U.S. v. Windsor, 2013).

• Gays have a constitutional right to marry (Obergefell v. Hodges, 2015).

In 2015 the EEOC announced its position that Title VII’s prohibition on sex discrimination encompasses discrimination on the basis of sexual orientation. The EEOC has since filed several lawsuits against employers accused of discriminating against gay and lesbian employees.

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The weight of current authority at the federal appeals court level still excludes sexual orientation as discriminatory under Title VII. However, a federal trial court in Pennsylvania recently concluded that Title VII flatly prohibits discrimination on the basis of sexual orientation. The court said: “There can be no more obvious form of sex stereotyping than making a determina- tion that a person should conform to heterosexuality.”

Even more recently, in Hively v. Ivy Tech Community College, the U.S. Court of Appeals for the 7th Circuit (headquartered in Chicago), upheld a claim of sexual orientation discrimination under Title VII, saying that “it is actually impossible to discrim- inate on the basis of sexual orientation without discriminating on the basis of sex.” The case is particularly important because it was an en banc decision, meaning that the entire court, not just a three-judge panel of the court, participated. (Eight judges were in favor of the decision, and three dissented.)

Although the EEOC’s position is that Title VII covers sexual orientation discrimination, the U.S. Department of Justice (DOJ) under the Trump administration takes the opposite view. In July 2017, DOJ filed a friend of the court brief in Zarda v. Altitude Express, Inc., pending before the U.S. Court of Appeals for the 2nd Circuit, arguing that sexual orientation is excluded from Title VII protection. Recognizing that the EEOC also filed a brief in Zarda, DOJ said, “the EEOC is not speaking for the United States and its position about the scope of Title VII is enti- tled to no deference beyond its power to persuade.”

Transgender discrimination has been the subject of fewer cases, although the EEOC’s current position is that transgender dis- crimination is covered by Title VII. The EEOC has filed lawsuits to promote that view as well.

Ultimately, the Supreme Court will need to determine wheth- er Title VII protects gays, lesbians, and other members of the LGBTQ community. Given the court’s 2015 ruling in Obergefell v. Hodges that gay marriage is a constitutional right, it would not

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be surprising for the Court to side with those lower court deci- sions that read Title VII as broadly protective of LGBTQ indi- viduals. And regardless of whether Title VII applies, many states and local jurisdictions do explicitly protect LGBTQ individuals from discrimination.

QUICK TIP A Guide to Restroom Access for Transgender Workers from the Occupational Safety and

Health Administration (OSHA) offers as a “core principle” and “best practice” that all

employees, including transgender employees, should have access to restrooms that cor-

respond to their gender identity. OSHA’s suggested alternative options include providing

single-occupancy, gender-neutral (unisex) facilities or multiple-occupant, gender-neutral

facilities with lockable single-occupant stalls.

OTHER ISSUES Title VII’s prohibition of sex discrimination gives rise to addi- tional workplace issues from time to time, discussed below.

Dress Codes A few federal court cases have ruled that employers have a certain amount of latitude in adopting dress and grooming standards that are not entirely gender neutral and that minor differences in person- al appearance regulations do not constitute sex discrimination under Title VII. As a caveat, however, the dress codes must be enforced evenhandedly between men and women.

Many of the dress code cases have involved hair length. A few have involved earrings. The issue typically arises when a male employee is disciplined for violating policies that prohibit long hair for men but not for women or that prohibit earrings on males but not females. The courts have said that while long hair and earrings on men may be fashionable in some circles, an employer may legitimately wish to present a more conservative image and need not tolerate the outer bounds of current fashion. But if the business justification for a gen- der-specific dress code is to present a more conservative image, appli-

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cation of the dress code to employees who do not interact with the public would be difficult to justify.

ALERT! A dress code policy that prohibits clothing or accessories associated with particular

religious beliefs or practices may constitute religious discrimination under Title VII.

(See Chapter 14 for more on religious discrimination.)

Retirement Plans An employer cannot provide smaller monthly retirement payments to women just because women, on average, live longer than men and collect benefits for a longer time.

Physique A number of cases have involved size and strength differences between men and women. If an employer sets minimum height and weight standards that tend to exclude most female applicants but few male applicants, the standards will be deemed discriminatory unless the employer can show a business necessity for the standards.

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