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Sex Discrimination - What Supervisors Need to Know
See also: Pregnancy Discrimination - What Supervisors Need to Know
See also: Wage Discrimination - What Supervisors Need to Know
Excerpts taken from The U.S. Equal Employment Opportunity Commission "Training and Technical Assistance Program 2002" and online at
http://www.eeoc.gov/facts/qanda.html
Q & A: Sex Discrimination - What Practices Are Discriminatory?
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin.
It is illegal to discriminate in any aspect of employment, including:
- hiring and firing;
- compensation, assignment, or classification of employees;
- transfer, promotion, layoff, or recall;
- job advertisements;
- recruitment;
- testing;
- use of company facilities;
- training and apprenticeship programs;
- fringe benefits;
- pay, retirement plans, and disability leave; or
- terms and conditions of employment.
Title VII's broad prohibitions against sex discrimination specifically cover:
- Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The "hostile environment" standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.)
- Pregnancy Based Discrimination - Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
The Equal Pay Act prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar
skill, effort, and responsibility for the same employer under similar working conditions.
Note that:
- Employers may not reduce wages of either sex to equalize pay between men and women.
- A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex.
- A violation may also occur where a labor union causes the employer to violate the law.
Facts about Sexual Harassment
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature
constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects
an individual's employment, unreasonably interferes with an individual's work performance or creates an
intimidating, hostile or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker,
or a non co-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
- The harasser's conduct must be unwelcome.
It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The
victim should use any employer complaint mechanism or grievance system available.
When investigating allegations or sexual harassment, EEOC looks at the whole record: the circumstances, such as
the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on
the allegations is made from the facts on a case-by-case basis.
Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take
steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that
sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance
process and taking immediate and appropriate action when an employee complains.
Recognizing Sexual Harassment
- General Points about Sexual Harassment
- Sexual harassment is a form of sex discrimination in violation of Title VII
Title VII does not explicitly prohibit sexual harassment, but the Supreme court has made clear
that it is a form of unlawful sex discrimination in violation of the Act.
Unwelcome verbal or physical conduct of a sexual nature constitutes unlawful sexual harassment
when submission to such conduct is made a term or condition of employment; submission to or rejection
of such conduct is used as the basis for employment decisions; or such conduct unreasonably interferes with
job performance or creates an intimidating, hostile, or offensive work environment.
Note that harassment of an individual because of his or her gender is unlawful regardless of whether
the harassment is sexual in nature. For example, if a supervisor frequently says to his female
subordinate "you're a woman, what do you know", or "we'd all be better off if women would just
stay at home and mind the kids", this may constitute unlawful gender-based harassment.
Note also that sexual harassment may violate state fair employment practices and laws, and it may
serve as a basis for a tort claim. Federal contractors are also responsible for correcting sexual harassment
under Executive Order 11246.
- The harasser as well as the target can be a man or a woman.
The Supreme Court recognizes that a man can sexually harass a man and a woman, a woman. If a male
supervisor demands sexual favors from a male subordinate in return for a promotion, that would
violate Title VII. In 1998, in Oncale v. Sundowner Offshore Services, Inc., the Supreme
Court decided that Title VII reaches same-sex harassment cases where the plaintiff can prove that
the harassment is because of the plaintiff's sex.
- The conduct must be unwelcome to the target of the harassment.
"Unwelcome" means that the employee did not solicit or incite the conduct and regarded it as
undesirable.
Unwelcomeness is in certain ways a two-way street. On the one hand, a person who is making sexual
remarks at work should have some sense of whether his behavior is welcome. Silence on the part of
the person on the receiving end would likely communicate that the sexual remarks are not welcome.
On the other hand, the person on the receiving end may have some responsibility to make his or her
feelings known.
- What should the person who is harassed do?
A victim of harassment should clearly communicate to the harasser-verbally, in writing, through a third
party, or in some other way-that the conduct is unwelcome. Evidence that the victim actively participated
in the conduct that she later challenged, would generally defeat a harassment claim, since the active
participation communicates welcomeness.
Example: Jennifer Rogers works as an administrative assistant. Many of her male co-workers
and a few of her female co-workers enjoy engaging in sexual banter and horseplay in the office.
They often trade stories about their sexual exploits, kid about each other's sexual prowess, and
even grab at each other's body parts. Jennifer is very upset and offended by this conduct; however,
she does not communicate this to anyone and, at times, she joins in the sexual banter herself in
order to get along with these individuals.
Thus, the fact that Jennifer Rogers joined in the conduct probably would undermine her
ability to challenge it. Even if she persuaded a court that she genuinely did not welcome the sexual
banter, it probably would rule against her because she behaved in a way that communicated that she
welcomed it. On the other hand, if Jennifer stops joining in the conduct and makes clear that she
finds it offensive, any further such conduct from that point on would be considered unwelcome.
Note that while active participation in sexual conduct usually will defeat a sexual harassment claim,
acquiescence to sexual demands would not necessarily have the same effect. Acquiescence or submission
to sexual demands does not necessarily mean that the conduct was welcome. So, for example, if a
supervisor demands sexual favors in return for a promotion, and the subordinate acquiesces, a claim
of sexual harassment could still be established.
- Harassment can be verbal, physical, pictorial.
For example, harassment can include: sexual comments, jokes, innuendo; pressure for dates; sexual
touching; sexual gestures; sexual graffiti. Non-sexual gender-based harassment could include
hostile and derogatory comments about women or men as a group.
- Claimant does not have to be the person at whom the offensive conduct is directed but can
be anyone affected by the conduct.
For example, in one case, an attorney provided that certain supervisors in her office regularly awarded promotions,
cash bonuses and other benefits to women with whom they were engaged in sexual relationships.
While no significant sexual conduct was ever directed at the attorney who brought the lawsuit, the
court nevertheless ruled that she had established sexual harassment because the conduct created a
sexually hostile environment that was offensive to her. Note that the same claim could probably
have been established by any male employee in that office who found the conduct offensive.
- Categories of Sexual Harassment
There are two categories of sexual harassment - harassment that results in a tangible employment action
and "hostile environment" harassment.
- Harassment Resulting in a Tangible Employment Action
Definition: Tangible job benefits are granted or denied based on the submission to or rejection of
unwelcome sexual conduct.
Example: Tom sometimes makes comments to his secretary, Ann Jones, about how attractive she is.
She never says anything when he makes these comments. One day, Ann requests a raise. Tom says that he
will consider her request, and suggests that the two of them go for drinks and to dinner after work.
Ann makes clear that she wants to keep their relationship purely professional and would therefore prefer
not to go out with him. Tom says that he understands. Two weeks later, Tom informs Anne that he has
denied her request for a raise. She asks Tom for an explanation, and he says that if she would just be
more "cooperative" with him, then the chance for a raise would improve. Ann asks if the "cooperativeness"
that Tom desires is sexual in nature. Tom just smiles and says "You figure it out".
This scenario describes a situation where the harasser is a supervisor and tangible job benefits are
involved. Therefore, Tom Smith's behavior would probably constitute unlawful sexual harassment.
- Only a supervisor or manager can undertake a tangible employment action.
A tangible employment action can only be carried out by a person with supervisory authority.
This is because a co-worker or non-employee who has no supervisory authority does not have the
power to condition job benefits or opportunities on submission to sexual conduct.
- The demand for sexual favors in return for job benefits can be explicit or implicit.
In the scenario about Tom Smith, he never explicitly said that Ann Jones' job evaluation would improve
if he engaged in sexual conduct with hi, but he implied as much.
- The job benefits at issue must be tangible, e.g., promotion, job retention, or compensation.
The Supreme Court has defined a tangible employment action as "a significant change in employment status".
A tangible employment action, in most instances, can only be caused by a supervisor or other person
acting with the authority of the company.
Examples of tangible employment actions include:
- hiring and firing;
- promotion and failure to promote;
- demotion;
- undesirable reassignment;
- a decision causing a significant change in benefits;
- compensation decisions; and
- work assignment
- One instance of harassment resulting in a tangible employment action is sufficient to constitute
a violation of Title VII.
There's no need to show a pattern of such conduct.
The second category of sexual harassment claims concerns the "hostile environment" situation.
- Hostile Environment Harassment
Definition: Sexual comments or conduct that have the purpose or effect of unreasonably interfering
with an individual's work performance or creating an intimidating or offensive working environment.
The Jennifer Rogers scenario above describes a situation where no tangible job benefits are affected.
These fact scenarios could fall into the category of "hostile environment" harassment. This category of
harassment is often more subtle than harassment that results in tangible employment action, and it is
often more difficult to determine where the line falls between lawful and unlawful conduct.
- A supervisor, co-worker or non-employee can commit this type of harassment.
This is in contrast to harassment that results in a tangible employment action.
- Nothing tangible about the individual's job need be affected
Unlike a claim of harassment that results in a tangible employment action, a hostile environment
harassment claim does not require a showing that the victim was fired, denied a promotion, or
otherwise penalized in a tangible way as a result of the harassment. The focus here is on the intangible
work atmosphere, and if that atmosphere is made intimidating, hostile or offensive as a result of
unwelcome sexual conduct, then a violation of Title VII will be found.
- Key issues are frequency and severity
The more frequent the conduct, the less severe it needs to be to create a hostile environment.
On the other hand, the less frequent the conduct, the more severe it must be. Thus, one isolated
instance of harassment is generally not enough, unless it is extremely severe, such as a physical
sexual assault.
One request for a date, even by a supervisor, would not create a hostile environment. Ten requests
by a supervisor or by a co-worker, in the face of repeated rejections, most likely would constitute
unlawful harassment. Five requests may or may not create a hostile environment - it depends on all the
circumstances. If the requests are by a supervisor as opposed to a co-worker, that's inherently
more severe and more likely to cross the line into unlawful conduct.
- "Reasonable person" standard governs.
From whose perspective is harassment measured? If this conduct would substantially affect the work
environment or a reasonable person, and if, as we discussed earlier, the conduct was unwelcome to the
individual bringing the claim, then a violation of Title VII will be found. A "reasonableness" standard
guards against claims by hypersensitive individuals. In other words, a particular individual might
be genuinely offended by her male co-worker's invitation to lunch, but a reasonable person would not
view this conduct as sexual harassment. On the other hand, a reasonable person standard would not
incorporate stereotypical attitudes that might be prevalent in a workplace. So even if a workplace has long
been pervaded with sexual epithets and sexual graffiti, a reasonable person could find that such conduct
creates a hostile environment.
Furthermore, the EEOC has taken the position, that the gender and other circumstances of the victim
should be considered in applying a reasonable person standard.
- Severe psychological harm is not necessary to establish a violation.
The Supreme Court, in Harris v. Forklift Systems, held that a person who brings a sexual
harassment claim need not prove that she suffered psychological harm. If psychological harm is
shown, that would certainly be considered in determining whether the conduct rose to a level of a
hostile environment, and it would be critical in determining the amount of damages to be awarded.
But psychological harm is not a necessary requirement for a sexual harassment claim.
Discussion
- Isolated Instances of Favoritism Towards a "Paramour" Not Prohibited
Not all type of sexual favoritism violate Title VII. It is the Commission's position that Title VII does not
prohibit isolated instances of preferential treatment based upon consensual romantic relationships. An isolated
instance of favoritism toward a "paramour" (or a spouse, or a friend) may be unfair, but it does not discriminate
against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.
- Favoritism Based Upon Coerced Sexual Conduct May Constitute Quid Pro Quo Harassment
If a female or male employee is coerced into submitting to unwelcome sexual advances in return for a job benefit,
other employees who were qualified for but were denied the benefit may be able to establish that sex was generally
made a condition for receiving the benefit.
- Widespread Favoritism May Constitute Hostile Environment Harassment
If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues
who do not welcome this conduct can establish a hostile work environment in violation on Title VII regardless of
whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable
treatment willingly bestowed the sexual favors. In these circumstances, a message is implicitly conveyed that the
managers view women as "sexual playthings", thereby creating an atmosphere that is demeaning to women. Both men
and women who find this offensive can establish a violation if the conduct is "sufficiently severe or pervasive to alter
the conditions of [their] employment and create and abusive working environment". Vinson, 477 U.S. at 67 [quoting
Henson v. City of Dundee, 682 F.2nd 897, 904, 29 EPD 32,993 (11th Cir. 1982)]. An analogy can be made
to a situation in which supervisors in an office regularly make racial, ethnic or sexual jokes. Even if the targets
of the humor "play along" and in no way display that they object, co-workers of any race, national origin or sex can
claim that this conduct, which communicates a bias against protected class members, creates a hostile work environment
for them.
Managers who engage in widespread sexual favoritism may also communicate a message that they way for women to get
ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their
fair treatment. This can form the basis of an implicit "quid pro quo" harassment claim for female employees, as well
as a hostile environment claim for both women and men who find this offensive.
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