Topic 5

Sex (Gender) Discrimination; Sexual Harassment, and Sexual Affinity Orientation Discrimination [Chapters 8, 9, & 10]

 

A) Sex (Gender) Discrimination [Ch. 8]

 

"Sex"--biological sex attributes, such as chromosomes and genitalia.

"Gender"--characteristics typically associated with masculinity or femininity, such as               dress, tone of voice, hobbies, and personality traits.

"Sexual orientation"-- the sex of the desired object of one’s affections.

"Gender identity"--a person’s self-identity; whether the person thinks of himself or          herself as a male or a female

 

How to analyze employment discrimination cases: disparate treatment vs. adverse impact

1) Disparate treatment (direct evidence)

        *Phillips v. Martin-Marietta (sex as BFOQ; in class)

        *Sedita (sex as BFOQ; in class)

 

2) Adverse impact (e.g., weight and height requirements)

        *Dothard v. Rawlinson 

 

3) Gender Stereotype and "mixed motive" defense

        *Price Waterhouse v. Hopkins ; CRA '91

        *Dr. Malos’ article on Stereotype Discrimination

4) Grooming codes

        *Harper (in class)

        *Jespersen v. Harrah’s (in class)

*Malos commentary re: Jespersen

*Malos slides re: Jespersen

*Appearance-based Sex Discrimination—Malos ERRJ Article

 

5) Customer/employee preferences

 

6) Logistical Burdens

        Lynch 

 

7) Equal pay issues

        *Lilly Ledbetter Act [1-29-09]

        *U.S. Women's Soccer Equal Pay settlement [2/22/22] [in class]

8) Pregnancy discrimination/ADA, FMLA, Retaliation [more later re: Disabilities]

9) Fetal protection policies    [*UAW v. Johnson Controls]

 

B) Sexual Harassment [Ch. 9]

 

1) Quid Pro Quo versus "Hostile Environment"--still a meaningful distinction?

*Overview of harassment analysis--quid pro quo vs. hostile environment

Federal Law:

*Meritor v. Vinson (S.Ct. 1986)

*"Welcomeness", "severe and pervasive" tests (in class)

*Ellison v. Brady --"reasonable woman" standard--still viable? [Standard varies across jurisdictions]

*Oncale v. Sundowner Offshore (S. Ct. 1998; 464-65 Title VII protection applies equally to same-sex harassment, if you can prove it, but need not involve sex per se, just gender status

California Law:

—Scope of cognizable harassment claims had already been expanding (see, e.g., Miller v. Dep't of Corrections; sexual favoritism on the part of supervisor toward female employee with whom supervisor is having consensual sexual affair may create actionable hostile environment claim by others in the workplace exposed to it if sufficiently widespread).   

--New for 2019: A "hostile work environment" is now defined as one that "sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim's emotional tranquility in the workplace, affect the ability of the victim to perform the job as usual, or otherwise interfere with and undermine the victim's personal sense of wellbeing." Whew! 

--Note that there is no explicit prohibition on generalized bullying or abusive conduct even though training on same is required [see below]. Further, unlike some countries which do have such prohibitions, some basis related to a victim's protected class [not just employee] is still required to be related to the hostile environment and the effects described above. 

 

Harassment Training:

AB1825—California Law Requires Sexual Harassment Training as of 2005

As of 2016, New Policy Requirement:

•In addition to the requirement to distribute DFEH-185 brochure on sexual harassment (or an alternative writing), employers must develop a “harassment, discrimination, and retaliation prevention policy” meeting detailed requirements.
 
*The policy must:
•Be in writing
•List all current protected categories under the Act
•Indicate that the law prohibits specified actors from engaging in prohibited conduct
•Create a complaint process ensuring:
§Confidentiality
§Timely response
§Impartial and timely investigations by qualified personnel
§Documentation and tracking for reasonable progress
§Appropriate options for remedial actions and resolutions; and,
§Timely closures.
 
*
•Provide options to complain to someone other than the employee’s supervisor.
•Instruct supervisors to report complaints of misconduct
•Indicate the employer “will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.”
•“States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.”
•State that if misconduct is found, appropriate remedial measures will be taken.
•Make clear that employees will not be exposed to retaliation for complaining or participating in an investigation.
 

§Employers must do one or more of the following:
•Provide employees with a hard copy to sign and return
•E-mail the policies to employees with an acknowledgment return form
•Post current version of the policies on a company intranet with a tracking system to ensure all employees have read and acknowledged receipt of the policies
•Discussing policies upon hire and/or during a new hire orientation session; and/or,
•Take other action to ensure that employees receive and understand the policies.
§Translation required into every language that is spoken by at least 10% of the workforce.
 
*New--By January 1, 2020, employers with 5 or more employees must provide a minimum of 2 hours/yr to supervisory employees and a minimum of 1 hour/yr to non-supervisory employees; training also must include prevention of abusive conduct [bullying] and harassment based on gender identity, gender expression, or sexual orientation 
 
 

2) Employer Liability for Harassing Conduct by Supervisor (strict liability, but subject to “Faragher/Ellerth” defense)

*Faragher v. City of Boca Raton and Burlington Industries v. Ellerth (S. Ct., 1998; Suders (S. Ct., 2004)

*Overview of harassment analysis--quid pro quo vs. hostile environment

        *EEOC Guidelines (available at www.eeoc.gov)

EEOC Guidelines re: Faragher/Ellerth defense to employer's vicarious liability for harassment by supervisor

                -Definition of "Supervisor" (one with actual or apparent authority to undertake or recommend tangible employment actions or to direct employee's daily work activities)

                   -Definition of "Tangible employment action" (significant change in employment status, such as hiring, firing, promotion, undesirable reassignment, failure to promote, demotion, or change in benefits, compensation, or work assignment)

 

3) Employer Liability for Harassing Conduct by Co-worker

*Negligence standard (i.e., employer liable if it "knew or should have known" of harassment and failed to promptly correct; standard is evolving with regard to this and other statuses)

 

4) Practical problems in investigating and proving harassment: Wrongful termination liability for false harassment charges

        *Cotran v. RHHI (Cal. 1998)

*Merritt v. Dillard Paper (11th Cir. 1997; employer liability for retaliation vs. alleged harasser)

 

C) Sexual Affinity Orientation Discrimination/Harassment [Ch. 10]

1)     Title VII protection re: affinity orientation discrimination (none)

       

2)     *Title VII protection applies equally to same-sex harassment, if you can prove it, but need not involve “sex”, just gender status (Oncale v. Sundowner Offshore, S. Ct. 1998)

 

3)     *Some movement toward recognizing “crossover” claims (mixture of gender stereotype and sexual orientation) under Title VII in some jurisdictions?

                -Nichols v. Azteca Restaurant, 9th Cir. 2001 

                -Rene v. MGM Grand Hotel, 9th Cir. 2002 (“effeminate” male butler on a hotel floor for high-rolling gamblers successfully alleges Title VII sexual harassment based on assaults "of a sexual nature" by male coworkers; a plurality endorse an independent claim for gender-stereotype sexual harassment)

        -for Malos commentary re: gender stereotype discrimination and workplace appearance standards, see Appearance-based Sex Discrimination—ERRJ Article [June 2007; see also text @271]