法律英语：118 Sex Discrimination

by Michael W. Flynn

 

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2. Further, I do not intend to create an attorney-client relationship with any listener.   

Today’s episode is the second in a series on employment discrimination. In last week’s episode, I discussed the basic federal laws that protect various classes of employees. Today I will discuss what an employee or applicant 4 must prove in order to prevail in a lawsuit 5 for sexual harassment 6 or sex discrimination.

As discussed in the last episode, sex-based discrimination and sexual harassment are prohibited by Title VII of the Civil Rights Act, as well as many state statutes 7. Before jumping into what a plaintiff must prove in order to prevail, I’d like to mention the procedural posture 8 of a Title VII case. A plaintiff cannot immediately sue the employer when he thinks he has been wronged.  First, the employer must file his grievance 9 within 180 days with the Equal Employment Opportunity Commission (EEOC), the administrative 10 body charged with enforcing Title VII. After the EEOC reviews the case, the EEOC will generally either act on the plaintiff’s behalf, or give a “right to sue” letter to the plaintiff. Only after the plaintiff receives this letter can he file in court. The point of this system is to allow the EEOC the ability to quickly resolve cases without clogging 11 up the courts. 

Discrimination based on sex can take many forms. In the most basic example, an employer will choose not to hire, or choose not to promote a person on the basis of that person’s sex. This is known as intentional 12 discrimination, also called disparate treatment. That is, the employer intentionally 13 treats an employee or applicant differently than it would have if the person had been a different sex. Both men and women can be the victims of sex discrimination. 

One common defense 14 against an accusation 15 of intentional sex discrimination is where a bona fide occupational qualification is reasonably necessary to the normal operation of the particular business for which the exception is claimed. A very common example is the practice of hiring only women to work in women’s locker 16 rooms. Courts have held that the requirement of being female is reasonably necessary to the operation of the facility maintaining the locker room in a manner that protects patrons’ privacy interests. However, an airline cannot only hire women flight attendants on the grounds that the mainly-male clientele prefers to be served by women during a flight. In that situation, courts have held that there is nothing about being female that is related to the tasks of being a flight attendant, and the clientele’s misogynist 17 attitudes towards women are not something that the airline needs to accommodate in order to perform its task of transporting passengers.  

Another common form of sex discrimination is disparate impact. This type of discrimination occurs when a facially neutral policy has the effect of discriminating 18 against one sex. A common example is a height-weight requirement. An employer might maintain a policy that nobody under 5’8” can be hired. On its face, this policy does not discriminate 19 on the basis of an applicant’s sex – it only discriminates 20 on the basis of the applicant’s height. But, this policy will surely shut out more women than men because women are far more likely to be under 5’8” than men. So, the policy will have a different impact on women than it will on men.

But an employer can still use such a requirement in some circumstances: where the requirement is closely related to job performance. For example, the state of Alabama once had a height-weight requirement for all prospective 21 prison guards. The state refused to hire a woman for failing to meet the requirement, and she claimed sex discrimination. The state argued that guards had to be strong enough and tough-looking enough to handle the prisoners. The Supreme 22 Court rejected the argument, noting that height-weight were not necessarily accurate measures of strength. However, strength and physical ability tests are sometimes upheld for law enforcement personnel when the policy is tailored properly to actually measure strength. 

Next, let’s move to sexual harassment. There are two main categories of sexual harassment under Title VII: quid pro 3 quo, and hostile work environment. In the quid pro quo scenario 23, a plaintiff must generally show that benefits of employment were based on sexual acts. For example, an employer would be liable for quid pro quo harassment if only employees who had sex with their bosses were given bonuses. 

The second category of sexual harassment is called hostile work environment. To prevail, a plaintiff must show that the workplace is permeated 24 with discriminatory behavior that is sufficiently 25 severe or pervasive 26 enough to create a discriminatorily hostile or abusive work environment. A court will consider (1) the frequency of the discriminatory conduct; (2) its severity: whether it is physically 27 threatening or humiliating, or a mere 28 offensive utterance 29; and (3) whether it unreasonably 30 interfered 31 with an employee's work performance. For example, if male employees leave the latest copy of Playboy open in the lunchroom every day, the environment is likely hostile. However, if one employee tells a sexist joke once at a company picnic, this would not likely be considered hostile. 

Well, that’s your crash course on sex discrimination and sexual harassment. These two areas of the law are very factually specific, incredibly complex, and evolving constantly. This series on employment discrimination will continue periodically, and cover topics including race discrimination, age discrimination, and disability discrimination. 

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful 32 Life. Don’t forget to check out all the fantastic Quick and Dirty Tips podcasts such as Money Girl’s Quick and Dirty Tips for a Richer Life.

You can send questions and comments to。。。。。。or call them in to the voicemail line at 206-202-4LAW.  Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.