The Pregnancy Discrimination Act

1. The Pregnancy Discrimination Act 92 STAT.2076 Public Law 95-555 – October 31, 1978 Public Law 95-999 95th Congress. An Act Oct. 31, 1978 (S.995) To amend title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy. .Pregnancy sex discrimination, prohibition. 42 USC 2000e. Definitions. Be it enacted by the Senate and House of Representatives of the United States of America in congress assembled, That section 701 of the Civil Rights Act of 1964 is amended by adding at the end thereof the following new subsection: “(k) The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the samefor all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) 42 USC2000e—2.of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where life of the mother would be endangered if the fetus were carried to term, or except where medical complications preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

2. PDA Summary • The PDA defines pregnancy as a temporary disability --- it requires organizations to treat pregnancy in the same manner as other disabilities. So, the Act requires that the same provisions contained within disability policies (e.g., allowable leave, job accommodations, health/fringe benefits, length of time a job is held open) must be granted to pregnant workers. • The Act authorizes job protections for females who became pregnant • It is it illegal to not hire female applicants because of pregnancy

3. ~ California Federal Savings & Loan v. Guerra ~ Issue: The legality of California law requiring employers to grant up to four months leave for pregnancy Company granted leave consistent with its policy, which was 2 months Employee took more than 2 months leave (consistent with CA policy) Decision: Title VII, as amended by the Pregnancy Discrimination Act, and California’s pregnancy disability leave stature share a common goal. The purpose of Title VII is “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of employees.” Rather than limiting existing Title VII principles and objectives, the PDA extends them to cover pregnancy. Congress intended the PDA to be “a floorbeneath which pregnancy disability rights may not drop – not a ceiling above which they may not rise.”

4. Recent Pregnancy Discrimination Suits

5. Sex Discrimination [Transgender] Macy v. Holder, 2012 Macy offered a job with Walnut Creek crime lab (part of AFT) pending background check Macy told staffing firm responsible for filling the position that she was “in the process of transitioning from male to female.” Staffing firm told Macy that position was no longer available due to federal budget restrictions Contacted the EEOC and told that position had not been cut but given to another person further along in the background checking process Filed complaint with ATF claiming discrimination regarding gender identity, sex, and sex stereotyping EEOC Decision: “Claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”

6. Sex Discrimination [Sexual Orientation] Executive Order 11478 section 1 (as amended by Executive Orders 13087 and 13152) provides: It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, age, sexual orientation, or status as a parent and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the Federal Government, to the extent permitted by law.

7. Sex Discrimination (cont.) [Sexual Orientation] Title VII does not cover a prohibition against sexual orientation or sexual preference But, Title VII does prohibit discrimination based on sex stereotyping (e.g., Price Waterhouse v. Hopkins) EEOC has ruled that hostile work environment claims based on sex stereotyping are covered by Title VII Veretto v. Donahue (2011); in favor of gay employee for hostile work environment claim (harsh treatment by a coworker after learning that complainant was marrying another man) Castello v. Donahue (2011); gay female subjected to offensive and derogatory comment about her having relationships with women “… motivated by the sexual stereotype that having relationships with men is an essential part of being a woman, and made a negative comment based on Complainant’s failure to adhere to this stereotype.”

9. Sexual Harassment (Basic Points) Sex as a condition of employment or basis for employment decisions or behavior of a sexual nature that is unwelcomeand that unreasonably interferes with one’s work performance or creates an intimidating, hostile, or repressive work environment • Quid Pro Quo (sex as a condition of employment or basis for employment decisions) • 2) Environmental harassment (behavior of a sexual nature that is unwelcomeand that unreasonably interferes with one’s work performance or creates an intimidating, hostile, or repressive work environment)

10. Sexual Harassment (Some Key Factors) • Investigating the record as a whole • Viewing the totalityof the circumstances (e.g., nature of the relationship, nature of the sexual advances, context in which the behaviors occurred) • Examining the evidence on a case by casebasis • Conduct is potentially illegal if the organization “knew or should have known” of sexual behavior • Sources of harassment: • Supervisors (company responsibility; agent of the company) • Co-workers (corrective action) • Clients (extent of company control)

11. What determines unwelcome sexual behavior? • A complaint at the time of the offense strengthens a claim, but it is NOT required • Victim's non-verbal conduct may indicate that the behavior is unwelcome (e.g., being visibly upset, angry) • Corroboration is helpful (e.g., testimony from eyewitnesses, victim told others of the harassing behavior); but evidence can come solely from the victim

12. How is a hostile work environment established? • Reasonable person/victim standard • Repeated offenses • Behavior of supervisors are more likely to be viewed as creating a hostile • environment. [Seen as an "agent" of the company]

13. Meritor Savings Bank v. Vinson (1986) • Basic Facts: • Plaintiff: • Alleged that her supervisor had made sexual advances toward her throughout her four years of employment • Vinson relented to her supervisor’s advances for fear of loss of employment • (behavior was unwelcome)

14. ~ Summary of Supreme Court Decision in Vinson ~ • Sexual harassment is a form of sex discrimination and thus a violation of Title VII of the Civil Rights Act • Both “tangible job benefit” (Quid Pro Quo) and “environmental” harassment are violations of Title VII. That is, it can exist under conditions where it creates a hostile or repressive work environment and liability can exist whether the company knew or should have known of the harassing behavior. • A company is NOT immune from legal liability when it had a grievance procedure and policy against sexual harassment. • Even if sexual behavior is “voluntary” the key is that it is “unwelcome.” • Actions toward victim must be sufficiently sever and pervasive to interfere with job performance • A company is not automatically liable for “environmental” sexual harassment

15. Some Key Quotes From Vinson Extent of Harm: For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment Unwelcome: The gravamen of any sexual harassment claim is that the alleged sexual advances be unwelcome. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, notwhether her actual participation in sexual intercourse was voluntary Evidence: While the District Court must carefully weigh the applicable considerations in deciding whether to admit evidence of this kind {provocative behavior and dress}, there is no per se rule against its admissibility. The District Court did not err in admitting testimony about respondents sexually provocative behavior and dress Liability: … Court of Appeals was wrong to entirely disregard agency principles and impose absolute liability on employers for the acts of their supervisors, regardless of the circumstances of a particular case.

16. ~ Harris v. Forklift Systems ~ Charge: Alleged that the President of Forklift Systems, Inc., Charles Hardy, was guilty of sex discrimination by creating an "abusive work environment“ Comments and behavior from Harris' supervisor: "You're a woman, what do you know?" "We need a man as the rental manager." Called her "a dumb ass woman." Suggested that the two of them "go to the Holiday Inn to negotiate [Harris'] raise" Asked Harris (and other female employees) to take coins out of his pants pocket Threw objects on the floor and asked female employees to pick them up >>> Harris complained to her supervisor, he was surprised, and said he would stop. Alas, a month later: When arranging the signing of a deal with a customer Harris' supervisor said "What did you do, promise the guy --- some [sex] Saturday night? She quit and sued the company

17. ~ Harris v. Forklift Systems (cont.) ~ Findings: District court found this to be"a close case." The United States District Court in Tennessee held that Hardy's conduct did notcreate an abusive environment No evidence of serious psychological harm to Harris Some of Hardy’s behavior was found to offend Harris and would be offensive to a “reasonable woman” but they were not: "so severeas to be expected to seriously affect[Harris'] psychological well being. A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person's work performance.

18. Supreme Court Decision in Harris No requirement that the behavior results in serious psychological injury We therefore believe the District Court erredin relying on whether the conduct "seriously affect[ed] plaintiff's psychological wellbeing" or led her to "suffer” injury." Such an inquiry may needlessly focus the fact finder's attention on concrete psychological harm, an element Title VII does NOT require. Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological wellbeing, but the statute is not limitedto such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be psychologically injurious.

19. Middle Ground Approach in Harris v. Forklift Systems Moderate Low High Merely offensive conduct (simple utterances that are offensive but do not sufficiently affect conditions of employment and create a hostile work environment) Supreme Court decision in Harris [no need to demonstrate concrete harm] Conduct causing psychological injury [District Court decision in Harris] "So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychological injurious" --- Supreme Court in Harris

20. Summary of Key Issues in Harris

21. Can males be guilty of sexual harassment against other males? Some Issues: Sexual interest vs. teasing, roughhousing, horseplay (e.g., nature of the alleged behaviors, physical versus verbal) Equal opportunity “bisexual” harasser (e.g., comparative evidence on how accuser treated both sexes). Mixed rulings after Oncale. Oncale v. Sundowner:

22. Burlington v. Ellerth Ellerth threatened with tangible employment consequences (e.g., no promotion, firing) unless she agreed to sex with her manager Threats never materialized (she was eventually promoted) She decided to quit her job alleging quid pro quo sexual harassment S.C. decision: This was a hostile environment case --- no tangible consequences (e.g., significant change in employment status such as failure to promote, firing)

23. Key Findings: An employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, the defendant may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence • Affirmative Defense: • That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior • That the plaintiff employee unreasonablyfailed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise SO … Ellerth should have an adequate opportunity on remand to prove she has a claim which would result in vicarious liability despite not suffering a tangible employment. Burlington is still subject to vicarious liability for their supervisor (Slowik) but should have an opportunity to assert and prove the affirmative defense

24. Faragher v. Boca Raton • Lifeguards for the city, in supervisory positions, engaged in physical and verbal harassment, including those directed at the plaintiff (below) • Terry repeatedly touched the bodies of female employees without invitation, put his arm around Faragher, with his hand on her buttocks, made contact with another female lifeguard in a motion of sexual simulation, made crudely demeaning references to women generally, once commented disparagingly on Faragher’s shape, and during a job interview with a woman he hired as a lifeguard, Terry said that the female lifeguards had sex with their male counterparts and asked whether she would do the same • Silverman tackled Faragher and remarked that, but for a physical characteristic he found unattractive, he would readily have had sexual relations with her., he pantomimed an act of oral sex, within earshot of the female lifeguards, Silverman made frequent, vulgar references to women and sexual matters, commented on the bodies of female lifeguards and beachgoers, and at least twice told female lifeguards that he would like to engage in sex with them. • City had sexual harassment policy (did not disseminate revised SH policy to the lifeguards) • City stated that they did not know of the actions of the guards who acted against company policy

25. SC Decision --- • City had vicarious liability --- supervisor lifeguards are agents of the City • City can make present an affirmative defense (e.g., taking quick corrective action) • But, … • the City had failed to disseminate its sexual harassment policy among the beach employees • its officials made no attempt to keep track of the conduct of supervisors • the City's policy did not include any harassing supervisors assurance that could be bypassed in registering complaints. Under such circumstances, the Court holds as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct.

27. Pennsylvania State v. Suders (Constructive Discharge) • After working for 4 months, Suders, a communications officer, quit alleging: • Daily sexual abuse by supervisors • Retaliation threats • Complaints to EEO officer were ignored • EEO officer gave her incorrect instructions on how to file a complaint • On several occasions, supervisors intentionally denied her requests for promotion

28. Supreme Court Decision in Suders • Constructive discharge, like retaliation, applies to all laws • It exists when the harassment has reached the point where a reasonable person in the employee’s position would be compelled to quit • Strict liability only when there is an official change in the victim’s status (a tangible employment action). • A constructive discharge may not always involve an official action (e.g., lack of an “agency connection.”) If not, the company has an affirmative defense • “Unlike an actual termination, which is always effected through an official company act, a constructive discharge may or may not involve official action. When it does not, the extent to which the agency relationship aided the supervisors misconduct is less certain, and that uncertainty justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.”

29. Sexual Harassment Case Summaries