Employment Discrimination

 

Each day more and more women come forward to share their stories of abuse within the workplace and without. And people are actually listening.

In the not-so-distant past, the primary concern for some employers may have been the legal consequence of firing a worker after she internally reported sexual harassment. Now, as women become more emboldened to speak up and as the public becomes more receptive to listening, employers have more to worry about than just the legal repercussions. In the year 2018, merely an accusation could end a career, or even a business. Thus, it is more important now than ever for employers to implement workplace procedures for preventing harassment and properly handling accusations.

Addressing sexual harassment requires first understanding what it looks like. It might surprise you to know that harassment is likely much broader than you think. In general there are two types of sexual harassment—quid pro quo and hostile work environment. The hostile work environment cases are typically more difficult to prove because the question arises of just how hostile the environment must be.

Sexual harassment falls under the category of sex discrimination, which is impermissible under Title VII of the Civil Rights Act of 1964. To be actionable under Title VII, the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (internal quotations omitted). A worker need not suffer an adverse economic effect to meet this standard. And, the inquiry does not center on whether the sex-related (not sexual-related) conduct was voluntary, but rather focuses on the unwelcome nature of the behavior.

Thus, even conduct that appears to be tolerated by a subordinate or coworker may constitute sexual harassment if the advances are unwelcome. Considering that the courts struggle with the concept of unwelcome versus welcome conduct, employers and their supervisors should hesitate to assume that seemingly innocent behavior is ok with a female (or even a male) colleague.

When employers receive a complaint of sexual harassment, they must act. In the current climate, the public will not accept a company’s claim of ignorance. Sticking your head in the sand is no longer a viable option when a woman comes to you to say “me too.”

 

Sexual orientation is a protected class under Title VII, right?  Maybe.  The United States Supreme Court has ruled that same-sex harassment is sex discrimination under Title VII.  The EEOC has taken the position that sexual orientation discrimination is the same as discrimination on the basis of sex under Title VII.  The Federal Courts of Appeals and Federal District Courts have taken a mixed approach to the issue.  The argument for disallowing sexual orientation claims under Title VII is that the language of the 42 U.S.C. §2000e-2 does not include sexual orientation.   The argument for allowing sexual orientation claims under Title VII is that the claimant would not have been subjected to the discriminatory conduct but for the claimant’s sex.  The older cases tend to rely upon the strict statutory language that does not include sexual orientation to disallow the claims, while the newer cases tend to allow the claims based on a broader reading of  “because of such individual’s … sex…[.]”

This trend is evident in Muhammad v. Caterpillar, Inc.  The plaintiff in Muhammad claimed that he was discriminated and retaliated against on the basis of his perceived sexual orientation.  The Seventh Circuit affirmed the district court’s summary judgment in favor of the employer because the employer reasonably responded to the complaints of harassment, and no evidence suggested that the employer retaliated against the former employee because of the former employee’s complaints.  In the Seventh Circuit’s initial opinion, the court included language echoing the historical analysis that Title VII did not include discrimination on the basis of sexual orientation, and the court affirmed the district court’s summary judgment in favor of the employer.  The Seventh Circuit revised its initial opinion, and removed the references to Title VII not including discrimination on the basis of sexual orientation.

Twenty years ago the standard advice to an employer would have been that sexual orientation is not a protected class under Title VII.  Given the more recent cases, it seems foreseeable that eventually the United States Supreme Court will settle the issue in favor of allowing sexual orientation discrimination claims under Title VII, or the statute will be amended to define discrimination on the basis of sex to include discrimination on the basis of sexual orientation.