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This chapter is from the book

Gender Discrimination

Objective: Gain an Understanding of Gender Discrimination

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on sex. However, the definition of what defines discrimination has been the subject of much judicial interpretation. In this section, the following issues are discussed:

  • Sexual harassment
  • The broad scope of hostile environment
  • Harassment prevention programs and affirmative defense
  • Sexual orientation issues

Sexual Harassment

Sexual harassment is a violation of Title VII. The EEOC first issued its Guidelines on Sex Discrimination in 1980 defining sexual harassment as a violation of Title VII prohibitions against discrimination based on sex. The EEOC defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that takes place under any of the following conditions:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of employment.
  • Submission to or rejection of such conduct by an individual is used as the basis for employment decision affecting the individual.
  • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.

For the employer to be held liable for sexual harassment, the individual making the claim must prove

  • There was unwelcome conduct or communication of a sexual nature (harassment).
  • The harassment was based on a person’s sex.
  • The harassment affected a term, condition, or privilege of the person’s employment.
  • The employer is legally responsible for the harassment.

Both the EEOC and the courts recognize two distinct types of sexual harassment: quid pro quo and hostile environment. They are discussed next.

Quid Pro Quo

Quid pro quo means this for that and occurs when an employee is forced to choose between submitting to sexual advances or forfeiting employment opportunities or benefits. It is harassment in which employment outcomes are linked to the granting of sexual favors. By definition, the harasser must be in a position or perceived to be in a position to, in fact, create the employment opportunities and tangible employments promised. Consequently, quid pro quo harassment must be perpetrated by a supervisor or manager. EEOC guidelines provide that the employer is strictly responsible for the actions of its supervisors, regardless of whether the employer knew or should have known of their occurrence. Nevertheless, it is possible for the employer to avoid legal liability in some cases of quid pro quo sexual harassment by using an affirmative defense. This issue is discussed later in this section.

Hostile Environment

The Supreme Court decision in Meritor Savings Bank discussed earlier in the chapter established the concept of hostile workplace environment. A hostile workplace environment can violate Title VII even if there are no employment or economic effects if that environment unreasonably interferes with an individual’s work or work performance or creates an intimidating, hostile, or offensive working environment.

As opposed to quid pro quo sexual harassment, the employer is liable only if it knew or should have known that the conditions existed. Also as opposed to quid pro quo, the harassers do not have to be supervisors for the organization to be found guilty. In fact, the harassers do not even have to be employees of the organization. Customers, suppliers, independent contractors, and so forth can all create a hostile work environment. Activities such as sexual or derogatory jokes or remarks, offensive physical contact, sexually oriented horseplay, posting of offensive or pornographic material, inappropriate emails, solicitation of sexual favors, and so forth might lead to hostile environment claims.

The courts have consistently ruled that such behaviors and activities must be severe or pervasive to be considered harassment. In its Harris decision, discussed earlier, the Supreme Court ruled that a "reasonable person" test must be used to determine whether harassment has occurred. This means that the environment must be one that a "reasonable person" would find abusive. Examples of environments that might be considered abusive are ones that

  • Prevent advancement in one’s career.
  • Result in constructive discharge. Constructive discharge occurs when the work environment is so hostile that a reasonable person would quit.
  • Affect the psychological well-being of the victim.
  • Detract from the individual’s work performance.

As stated before, the employer has strict liability in quid pro quo cases because that type of harassment must be perpetrated by an agent of the organization—a manager or supervisor. However, what happens if the hostile environment is a result of managerial behavior? There are two Supreme Court decisions that together address the issue, both of which were discussed earlier in this chapter. Faragher v. City of Boca Raton provides the basis for an employer’s defense of actions of its managers as long as a tangible employment action has not occurred. This argument is referred to as an affirmative defense and is discussed later in this section. Ellerth v. Burlington Northern defines what types of actions are to be considered tangible employment actions.

The Broad Scope of Hostile Environment

In 1999, the EEOC provided new and comprehensive guidance on the subject of harassment and hostile environment. This guidance is included in the EEOC’s Compliance Manual, which is available on its website at http//http://www.eeoc.gov/. The guidance expands the concept of hostile environment from prohibition against sexual harassment to include prohibition against national origin harassment. EEOC defines actions that might include a hostile or abusive work environment based on national origin to include ethnic slurs, workplace graffiti, or other offensive conduct directed toward an individual’s birthplace, ethnicity, culture, or foreign accent. The EEOC indicates that the following factors should be considered in determining whether the national origin harassment rises to the level of creating a hostile work environment.

  • Whether the conduct was physically threatening or intimidating
  • How frequently the conduct was repeated
  • Whether the conduct was hostile and/or patently offensive
  • The context in which the harassment occurred
  • Whether management responded appropriately when it learned of the harassment

Harassment Prevention Programs and Affirmative Defense

To defend itself against complaints of harassment, either quid pro quo or hostile environment, the organization must first have a proactive harassment prevention program in place. Critical components of an effective program are as follows:

  • Establishment of a harassment policy covering all protected classes
  • Executive-level support and commitment to the policy
  • Training of managers on the policy
  • Communication of the policy throughout the organization
  • Providing a procedure for employees to bring issues of sexual or other types of harassment to the organization’s attention
  • Protection of complainants from retaliation
  • Quick and thorough investigations of complaints
  • Taking timely and effective action if indicated by the results of the investigation

If the organization has a viable harassment protection program and can demonstrate that it took reasonable care to prevent harassment, it might be able to raise an affirmative defense against allegations of quid pro quo sexual harassment or national origin or sexual discrimination based on hostile environment. The critical issue in this defense is that the organization followed its procedures and policies as indicated in its harassment prevention policies. An affirmative defense must be based on two factors:

  • The organization exercised reasonable care to prevent and promptly correct any harassing behavior.
  • The complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided.

If the employee suffered no tangible employment action, an organization that has developed, implemented, and rigorously followed its harassment prevention plan might be able to avoid liability, even with respect to the actions of its managers, in a discrimination complaint. However, if a tangible employment action has occurred as part of the harassment, the organization has no viable defense.

Sexual Orientation Issues

Sexual orientation is not recognized or protected under Title VII. Although the Oncale v. Sundowner Offshore Services decision, discussed earlier, protects individuals from discrimination and harassment by the same sex, it does not provide protection based on sexual preference or orientation. However, many state and local laws and ordinances do prevent discrimination based on sexual preference.

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