Chapter 7 Discrimination and Harassment Based upon Gender, Sexual Orientation, and Gender Identity

People who are not the target of harassment, but who work in environments in which sexual harassment occurs, can file

"third party" and "bystander" harassment suits.

To bring a claim under the Equal Pay Act, the employee must prove:

- A man and a woman; - working within the same workplace; and - were doing substantially the same job and receiving unequal pay.

To defend the claim under the equal pay act, the employer can justify the pay differential by proving the difference is a result of:

- A seniority system;a merit system; - a system which measures quantity or quality of work produced; or - any reason other than gender.

when proving sex discrimination A plaintiff must prove:

- Membership of a protected class - qualification and application for the position/promotion/training; - rejection of application despite these qualifications; and - that equally/less qualified employees who were not members of the protected class received the position, promotion, or training.

In its Harris decision, the Court developed a formula for determining whether the conduct affected the plaintiff's terms or conditions of employment. The conduct must be:

- Severe or pervasive, and - unwelcomed, and - rendering the working environment objectively and subjectively hostile and or abusive.

Faragher/Ellerth Defense is used when the employer can prove:

- That the employer exercised reasonable care to prevent/correct any sexually harassing behavior; and - That the plaintiff unreasonably failed to take advantage of any preventive/corrective opportunities provided by the employer

A hostile work environment involves four elements:

- The harassment arises from conduct based upon sex; - the behavior is "severe and pervasive" - the behavior is unwelcome; and, - the harasser is a "supervisor" or manager or the company failed to exercise reasonable care to prevent sexual harassment.

An employer always has the burden of proving a BFOQ is necessary. Courts consider a few factors when reviewing whether a BFOQ defense is valid:

- The relationship between the classification and job performance; - the necessity of the classification for successful performance of the job; and - the job performance affected is the essence of the employer's business operation.

Sexual harassment disputes have posed several questions for the courts that have heard them. Among these are the following:

- Whose perspective will control the analysis? - Does the gender or sexual orientation of the victim affect the decision? - Should the trier of fact consider any sensitivities of the alleged victim?

The protections provided by the PDA are only applicable to companies with

15 or more employees

When the alleged harasser is not a supervisor, the employer is responsible only if it...

knew or should have known of the harassment and took no steps to prevent it.

The Equal Pay Act of 1963 (EPA) requires that

male and female employees performing the same work for the same employer receive the same pay.

Courts do not apply a mechanical test to define a supervisor. Instead, they consider the

person's authority as exercised on the job.

Determining what standard should be employed in determining if sexual harassment has occurred is a matter of significance to both parties in a sexual harassment claim. The courts must consider the

perspective from which the behavior should be viewed and interpreted.

Sexual harassment claims are based upon either:

quid pro quo situations, or hostile work environment situations.

A person's sexual orientation is not a protected class under Title VII. Employment discrimination based on sexual orientation is not prohibited, but sexual orientation harassment may be protected if it is...

related to a gender discrimination claim, such as failing to conform to gender stereotypes.

An immutable characteristic includes

skin color, hair texture, or certain facial features, even if not all members of the same race, color, sex, or national origin share the characteristic.

JESPERSEN v. HARRAH's OPERATING COMPANY, INC. decision

the court found that Jespersen had not provided evidence that the policy had been motivated by stereotyping and affirmed the district court's finding for Harrah's.

Decisions finding hostile environment sexual harassment in the workplace typically find that a

the employee was subjected to individual acts of harassment with evidence of sexual graffiti throughout the workplace or with acts that continued for a sustained period.

Federal court decisions developed the severe/pervasive standard by assessing the totality of the sexual harrassment circumstances:

the level of offensiveness of the conduct, its frequency, the duration over the alleged harassment, and the context in which it occurred.

One of the advantages of pursuing a claim under the Equal Pay Act is a

two-year statute of limitations. For willful violations, the statute is extended to three years.

A hostile work environment is one in which

unwanted sexual activity takes place, thus creating a hostile or abusive work environment that interferes with the victim's ability to perform the work.

Sexual harassment against a woman is judged on the basis of

whether the "reasonable woman" would find the conduct or environment sexually harassing.

Seniority

will increase compensation because of increasing length of service. The system must be consistently applied to all employees, with no arbitrary exceptions permitted.

Quid pro quo sexual harassment involves a

workplace benefit promised in exchange for sexual activity by the harassed worker.

A "reasonable man" standard would apply to

harassment of a male worker.

When is an employer strictly liable under Title VII?

if quid pro quo harassment or if intentional discrimination occurs.

The Ellerth and Faragher decisions describe a supervisor as a person with...

immediate or successively higher authority over another employee.

Equal Pay Act of 1963

A federal law prohibiting wage differentials based on gender for positions requiring equal skill, effort, and responsibility and that are performed under similar working conditions.

PRESTON v. WISCONSIN HEALTH FUND decision

A male executive's romantically motivated favoritism toward a female subordinate is not sex discrimination even when it disadvantages a male competitor of the woman employee. Personal favoritism resulting from a personal relationship is not sex discrimination.

Glass ceiling

A perceived barrier preventing certain classes of individuals from climbing the highest rungs of corporate leadership.

Transgender individual

A person who identifies with and adopts the gender identity of a member of the opposite biological sex.

Sexual/Gender identity

A person's various individual attributes, as they are understood to be masculine and/or feminine. Also known as gender dysphoria.

Executive Order 13087

A presidential order issued by President Clinton in 1998 prohibiting discrimination based on sexual orientation in federal civilian employment. Certain positions and executive agencies are exempt from its coverage.

VANCE v. BALL STATE UNIVERSITY decision

As a result, Ball State was not vicariously liable for Davis's actions because Davis was not a supervisor.

Sex stereotyping can violate Title VII when it

influences employment decision.

Gender

Characteristics distinguishing males and females, including social roles and behaviors.

grooming and dress standards are outside the scope of Title VII, because

Congress intended the act to prohibit only discrimination based on "immutable characteristics" associated with a worker's sex.

Earnings measured by quantity or quality of production

Employers who cannot prove that a pay difference is based on a bona fide system must be able to show that it relates to job requirements.

Merit systems

Exceptional performance may be rewarded.

Burlington Industries, Inc. v. Ellerth

Supreme Court ruled in her favor.

A finding of sexual harassment requires an

intensive fact finding effort by the trier of fact.

According to the EEOC harassment does not violate federal law unless it

involves discriminatory treatment on the basis of a protected classification.

An adverse employment decision based on gender nonconforming behavior and appearance is lawful. T/F?

False, it is NOT LAWFUL

The EEOC defines sexual harassment as unwelcome sexual conduct that is a term or condition of employment:

Harassment based on sex is a violation of Section 703 of Title VII of the 1964 Civil Rights Act as amended in 1972.

Congress protected against sex or gender discrimination and harassment through Title VII of the Civil Rights Act of 1964. Title VII states:

It is an unlawful employment practice for an employer to (1) fail/refuse to hire or discharge an individual, or discriminate against an individual with respect to his compensation, terms, conditions, or privileges or employment, because of an individual's...sex [gender].

gender stereotyping

Requiring or expecting a person to act, behave, or dress a certain way based on his or her gender.

EPA permits differences in compensation only if there are bona fide systems based upon:

Seniority, Merit systems, Earnings measured by quantity or quality of production and Factors other than sex

CORNING GLASS WORKS v. BRENNAN, SECRETARY OF LABOR decision

The Court found substantial evidence that Corning could find women who would work less than men for the inspection position. The decision of the court of appeal was reversed.

MERITOR SAVINGS BANK, FSB v. VINSON decision

The Court recognized that plaintiffs could establish violations of the Act "by proving that discrimination based on sex has created a hostile or abusive work environment."

PDA

The Pregnancy Discrimination Act is a federal act passed in 1978, amending Title VII, prohibiting employment discrimination on the basis of pregnancy, childbirth, or related medical conditions

Sexual orientation

The choice of an adult sexual partner according to gender.

sexual orientation

The choice of an adult sexual partner according to gender.

According to the EEOC unwelcome sexual advances, requests for sex favors and other verbal or physical conduct of a sexual nature constitute sex harassment when:

The conduct is made exclusively or implicitly (quid pro quo) and unreasonably interferes with work performance or creates a hostile or offensive working environment.

Gender discrimination

The unlawful treatment in employment of a person because of his or her gender.

Factors other than sex

These factors include better qualifications in education, training and experience, working evening or night shifts, and real differences in job classifications.

Since Title VII does not require the employer to make special concessions to pregnant employees, how must an employer treat its employees with pregnancy related conditions?

They must treat them in the same manner as persons with other medical conditions who are similar in their ability to perform work.

Immutable characteristics

Unalterable physical traits, including skin color, hair texture, or certain facial features associated with persons of a particular race, color, sex, or national origin, even though not all members of that group necessarily share the trait.

Lilly Ledbetter Fair Pay Act of 2009

Under this law, each time a person is paid discriminatory wages, benefits, or compensation, a cause of action arises and the victim has 180 days to file a complaint.

Quid Pro Quo sexual harassment

Unlawful conduct in which the harasser uses submission to or rejection of sexual requests as a basis for employment decisions, such as hiring, firing, compensation, and promotions. The Latin phrase translates as "this for that."

Sexual harassment

Unwelcome sexual conduct that is a term or condition of employment; may include intimidation, bullying, or coercion of a sexual nature.

Gender identity Discrimination

Wrongful treatment of a worker due to the person's self-identification with a gender, whether it is the same as or opposite to the person's biological sex.

Sexual harassment is a form of sex discrimination because it

adversely affects the work environment and is based on the victim's protected characteristic (that is, one's gender).

Why is a hostile work environment claim of sexual harassment more difficult to prove than a quid pro quo sexual harassment claim?

because the plaintiff has the burden of proving that the action was severe or pervasive enough to create the hostile work environment, which altered the conditions of the victim's employment.

One exception to the general rule that an employer is not allowed to discriminate based on gender arises when there is a

bona fide occupational qualification (BFOQ) involving gender. The BFOQ exception appears in §703 of the Civil Rights Act of 1964.

By adopting a "reasonable victim" standard, federal circuit courts of appeals require that...

both a subjective and an objective element demonstrate sexual harassment.

What the EPA Requires:

both sexes must be paid equal rates of pay for employees who perform equal work on jobs requiring similar skill, effort, and responsibilities, and for work performed under similar working conditions.

Reverse sex discrimination refers to...

discrimination against members of a dominant or majority group in favor of members of a minority group.

EPA does not require any proof of

discriminatory intent

who enforces the epa?

eeoc

Unlawful sex stereotyping can result in

employer liability

Same-sex harassment is unlawful under Title VII, as long as the plaintiff can...

establish the alleged harassment occurred because of his or her sex