Sex Discrimination

Sex Discrimination • Both males and females are protected against sex discrimination • Many sex discrimination complaints are filed by women on the basis of a failure to hire or to promote, unequal pay, or generally being treated less favorably than male candidates for employment or current male employees • Protection against sex discrimination includes pregnancy • A large portion of sex discrimination complaints filed on basis of harassment

Sexual Harassment • Sexual harassment is defined by the EEOC as UNWELCOME sexual advances, requests for sexual favors, and verbal, physical, and other conduct that unreasonably interferes with a person’s work performance or creates an intimidating, hostile, or offensive working environment.

There are Two Types of Sexual Harassment • Quid pro Quo And • Hostile Environment

Quid Pro Quo • Quid Pro Quo harassment- Harasser demands sexual conduct as a condition for receiving a tangible employment benefit. • No requirement that sexual requests or demands are expressly made. • Complainant can acquiesce to a sexual demand, receive the benefit and still have a viable claim.

Hostile Work Environment Hostile work environment: Occurs when an employee is subjected to UNWELCOME sexual conduct based upon gender that is sufficiently PERVASIVE or SEVERE to alter the terms or conditions of the employment so as to create an intimidating, hostile, or offensive working environment.

Victims • The person to whom the offensive conduct was directed • Anyone else who hears or sees conduct and finds it offensive

Quid Pro Quo/Hostile Environment • The two types can overlap and occur together. • Essential element of Quid Pro Quo is the power of the harasser to control the employment benefits. • Therefore, Quid Pro Quo discrimination can only be perpetrated by a supervisor or person who has the power to confer or withhold a tangible employment benefit.

Unwelcome Conduct • UNWELCOME means that the person did not invite or solicit the advances. • Acquiescence or even voluntary participation in sexual activity does not mean that the conduct was welcome. • A Complainant has to show that conduct is unwelcome in both Quid Pro Quo and Hostile Environment harassment cases.

How to Show Conduct is Unwelcome • Employee does not have to actually tell the perpetrator to stop the conduct to show it is unwelcome • If employee initiates the conduct, however, it could establish that the conduct was not UNWELCOME

Both Objective and Subjective Standards Apply • Courts apply the reasonable person standard in determining the offensiveness of the conduct. • The Complainant has to also show that he or she was indeed offended.

Totality of the Circumstances • Courts look at the TOTALITY OF THE CIRCUMSTANCES in making the legal analysis of sexual harassment cases. • Factors the courts consider in making the analysis include: • 1. Whether the conduct is verbal, physical, or both; • 2. Whether conduct was a one-time occurrence or was repeated;

3.Whether conduct was hostile and patently offensive; • 4. Whether alleged perpetrator was a co-worker or a supervisor; • 5. Whether others joined in perpetrating the harassment; • 6. Whether the harassment was directed at more than one individual.

Court Cases Have Established the Following: • A single incident is generally not enough; • One incident can be enough, however, if it is severe; • Favoritism generally not unlawful unless it is based upon the granting of sexual favors and is so widespread that it creates a hostile environment (High threshold required to prevail)

Sexual Harassment Includes • Circulation of materials involving sexual matters • Physical assaults of sexual nature (includes any touching) • Sexual gestures and sexually suggestive behavior • Pressure for dates or sexual favors • Sexual jokes, teasing and remarks

Victim of harassment does not have to show psychological injury to prevail. • Victim does not have to show tangible or economic job consequences. • Men can be victims of sexual harassment as well as women. • Illegal sex stereotypes occur when employee is discriminated against for failing to conform to gender stereotypes

Same sex harassment can violate the law if it actually constitutes discrimination because of sex. • There is no requirement to show that the same sex harasser is homosexual. • Again, sex harassment does not have to be “SEXY” to be illegal. • Sexual harassment claims filed by women are increasingly based on hostile, demeaning and abusive behavior that was not directed toward male employees.

Liability for Harassment by Supervisors Before Ellerth/Faragher • Before the U.S. Supreme Court issued its decisions in Ellerth and Faragher, courts distinguished between the two types of sexual harassment, quid pro quo and hostile work environment, to determine liability for supervisors.

Liability for Harassment by Supervisors Under Ellerth/Faragher • Courts prior to Ellerth and Faragher found employers were automatically liable for quid pro quo harassment by its supervisors but not for hostile work environment harassment. • Supreme Court provided a different analysis for determining supervisory liability in Ellerth and Faragher.

Instead of focusing on the differences between the two types of sexual harassment, the Court stated that the real issue is whether the harassment resulted in a TANGIBLE EMPLOYMENT ACTION. • If it did, the employer would be automatically liable for the harassment of its supervisors.

Employer Affirmative Defense • If no tangible employment action from harassment, employer can present following affirmative defense: • Employer exercised reasonable care to prevent and promptly correct the harassment; and • Employee unreasonably failed to report harassment or otherwise avoid the harm

Cont’d • Employer has to prove both prongs to prevail

Examples of Actions for Employers to Establish 1st Prong AD • Employer has a clear written anti-harassment policy in effect that is distributed and enforced • Employer has a provision in policy encouraging employees to report harassment before it becomes severe or pervasive

Cont’d • Evidence that policies are distributed and discussed periodically • Employer has a clear statement in policy explaining employees protected from retaliation for reporting harassment • Policy that provides several channels for reporting harassing conduct **Supers can be alleged perpetrator

Cont’d • Instructions to supervisors and managers to report all harassment to company officials even if the victim never actually complained, failed to follow formal complaint procedures, or even when victim asks that no action be taken

Individual Supervisor Liability • Supervisors can be found individually liable for sex harassment as well under Iowa law • Vivian

Employer Investigation • Alleged harasser should be removed from complaining party’s work area during investigation **Not cp • Talk to all parties involved and to all persons who may have knowledge of incidents • Make immediate written record of allegations for review, corrections, and initials

Cont’d • Explain information gleaned will be confidential as possible • Information, however, must be disclosed to accused harasser and disclosed at trial if case proceeds to court • Accused harasser is given detailed information about complaint so he or she has a fair opportunity to present their version of the events

After Investigation • Employer must make a decision • No bright line as to what constitutes prompt remedial action • Within same day is good • One week may be sufficient • Waiting any later may be first step to liability

Cont’d • After investigation complete and decision made, employer needs to advise complaining party as to outcome of investigation • Employers again need to remind complaining party that there will be no retaliation

Cont’d • Employers need to also contact complaining party shortly after taking remedial action to inquire as to whether its action has been effective and to prevent any recurrence

Means to Defeat Employer’s Affirmative Defense • Employee reasonably feared retaliation; • Employer’s process imposed obstacles to filing a complaint • Employee reasonably believed that the complaint process was ineffective

Employer’s Burden • Employer bears the burden to prove that employee’s reason for failing to complain about the harassment was unreasonable

Retaliation • Employees who make a charge, testify, assist, or participate in an investigation or hearing are given absolute protection from retaliation by employers • Employers cannot discipline an employee for his or her participation • Employees protected even if conduct that precipitated the protected activity not found to violate law

Cont’d • All employee needs to show is a reasonable belief that the conduct violated the law • Retaliation can include altering a work schedule, loss of work assignments, extensions of probation periods, negative references, unjustified evaluations as well as terminations, demotions, or suspensions

Elements for Retaliation • Employee engaged in protected activity with employer’s knowledge • Employee was subjected to an adverse employment decision and • Causal connection between the two

Cont’d • The employee does not have to show that the employer’s adverse decision was motivated SOLELY by his or her participation in the protected activity • Must merely show that the activity was a SIGNIFICANT factor in motivating the adverse employment action

Proximity • Close proximity between protected activity and adverse action raises an inference of causal connection • Proximity alone, however, not enough to establish a viable claim • Courts have considered 3 months close enough. In one case 14 months was considered close enough

Cont’d • Generally, though, any action over one year later does not raise the inference of a causal connection

Legitimate Reason • Poor work performance is a legitimate nondiscriminatory reason for adverse employment actions • Documentation of poor work performance can support an employer’s decision and employees who claim retaliation will have a hard time prevailing if have a poor work record

Ways for Employees to Stay Out of Trouble • Do not assume that friendliness means sexual interest • Do not assume conduct is ok because no one objects • If you question whether something is inappropriate to do or say, don’t do it • If someone indicates that your conduct is unwelcome, stop doing it

Consider whether you would engage in the conduct if your significant other was next to you • Consider whether you would want your daughter or significant other to experience the conduct • Remember the workplace is not the corner bar

Sex Discrimination