Joel Dillard PA

Representing Mississippi Workers

Sexual harassment and sex discrimination

In this me too moment, more women are standing up for themselves at work. And previously oblivious or naive men are beginning to take notice. The result is a new opportunity to make significant gains for women in the workplace. Meanwhile, toleration of homophobia is also on the wane, and sex-stereotyping has been recognized as a workplace problem.

But don't imagine that things have gotten easier for women who speak out at work just yet. Employees often find it helpful to understand the law before speaking out at work. This gives them the tools they need to protect themselves against potential retaliation. The firm provides advice and representation to women in this situation.

More info from the blog

We write about this issue all the time. Read more in the excerpts below from our blog!



Complaining about sexual harassment to HR

In a recent survey released by noted blog fivethirtyeight.com, over 1,000 respondents were asked what should you do when you have been the victim of sexual harassment. In the scenario presented, a combination of texts and verbal encounters with a co-worker showed the co-worker making repeated sexual advances, being rebuffed, and then insulting and criticizing the victim. Respondents were given five choices, with the following results:

  1. Compile the texts and confront the harasser. 7.8%
  2. Compile the texts and do nothing. 6.5%
  3. Compile the texts and take them to human resources to notify them ahead of any repeat incident. 40.1%
  4. Compile the texts, take them to HR, and ask to be moved. 33.2%
  5. None of the above is good advice. 12.5%

The law in this area is far more complicated than you might expect, and to make the best decision, it is important to understand this legal background.

Is this illegal sexual harassment?

Harassment was not explicitly addressed in the sex discrimination provisions of Title VII of the Civil Rights Act, which only spoke to adverse employment practices - typically demotion, suspension, non-hiring, termination, etc. But the Supreme Court recognized in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) that harassment because of sex can be unlawful.

But the Court explained that the harassment must be severe or pervasive and it must be because of sex, race, disability, etc. An equal opportunity harasser - that is, someone that is mean to everyone, or even a bisexual that sexually harasses on both men and women at work - is not violating the statute, as noted in among other cases, Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000).

And the severe or pervasive standard is sometimes quite difficult to meet, especially in the Fifth Circuit, as the employee found in Jones v. Flagship Int'l, 793 F.2d 714 (5th Cir. 1986). My rule-of-thumb is, unless there has been either unwanted offensive touching (assault), or at least weekly explicit communication (well attested by evidence), then you can't be certain whether the court will see it as severe or pervasive - although there are many cases where far less was accepted, such as in Idom v. Natchez-Adams School Dist., 115 F. Supp. 3d 792 (S.D. Miss. 2015).

What steps should be taken to respond to harassment?

The next steps depend on the precise nature of the harassment, and the victim's goals in addressing it. For example, if the harassment is by the boss, and involves a quid pro quo - like, sleep with me or you are fired; sleep with me and you get a raise; etc. - then sometimes the best next step is to file an EEOC charge, develop the evidence, and proceed into court if the matter does not settle. This kind of harassment the employer is liable for, even if it isn't reported to HR. With that said, depending on the claim, the kind of company, and the victim's career situation, sometimes it is better to go to HR first, or to take other steps. This is a question of strategy, rather than pure law.

But if the harassment is by a coworker or customer, or if the supervisor is not engaging in any explicit quid pro quo, then a complaint to HR is generally MANDATORY before filing an EEOC charge. In fact, before the employer can be held liable, you must follow all the official procedures of the employer for reporting harassment, and give them a chance to fix it. This was the holding of the Faragher and Elerth cases. (This doctrine doesn't apply if the company has no such policy, or if the policy is futile - like reporting the misconduct directly to the harasser.)

This played out to agonizing effect in Harvill v. Westward Comm. LLC, 433 F.3d 428 (5th Cir. 2005) In that case, the plaintiff was clearly harassed:

In her deposition, Harvill testified that, during that seven-month period, Rogers grabbed her and kissed her on the cheek, popped rubber bands at her breasts, fondled her breasts numerous times, patted her on her buttocks numerous times, and came behind her and rubbed his body against her. At one point, Harvill estimated that Rogers touched her breasts or her buttocks perhaps as often as once a week—although she later stated that it may not have been as often as once a week. She also claims that on one occasion Rogers made comments to her about her sex life and her abilities in bed.
Harvill reported the harassment to her supervisor over and over, and he did nothing. But Harvill still lost the case. This was because Harvill did not use the employer's complaint proceedure that the employer had in the handbook to address sexual harassment, and therefore didn't go over her bosses head, for about seven months. And:
When Harvill did contact Human Resources, the company immediately separated Rogers and Harvill, after which time Harvill concedes that all harassment ceased. Therefore, Westward contends that it did take prompt remedial action that was calculated to end the harassment after Harvill bypassed [supervisor] French and took advantage of the corrective opportunities made available to her [by HR].
The failure to call HR sooner was enough to completely shield the company from liability for the harassment.

Pitfalls: retaliation and sham investigations

Be aware though: HR representatives are not your representatives, they are the company's representatives, and their first mission is to cover the company's butt. This may mean helping you, and it may mean proving you a liar (even if you are telling the truth).

Also be aware that going to HR about sexual harassment is statutorily protected activity: you cannot lawfully be fired or disciplined or in any other way retaliated against because of it. But that does not mean it does not happen, so be sure to document who knows about your complaint and when they learned of it. It may be helpful to tell the harasser and your boss immediately by emailing them a copy of the complaint, to prove any subsequent actions are potentially retaliation.

Taken together, this means that occassionally - rarely - the best response for some victims' goals is to ignore it and look for other work. I wish it were not so, but practically speaking, the law is sometimes not strong enough to meaningfully protect the complainant. I'm thinking most particularly of complainants in careers or environments with a small pond culture, where an informal blacklist can develop that destroys the victim's career if she complains. This is becoming far less common nowadays, but it is still true sometimes.

The bottom line: call a lawyer

The bottom line, though, is that the 73% percent of respondents to the survey that said to go to HR were generally right - and I would add that the victim should read the employee policy handbook carefully and follow it. But equally important is the advice of good lawyer first, who can keep you on the straight and narrow path to best protect your career and interests.

Sex discrimination in the workplace

Sex discrimination involves treating someone unfavorably based on whether that person is male or female. Conceptually this should be fairly straightforward: if you take a person that has been treated unfavorably, and ask what would have happened if their sex had been different, would this change anything? If so, the action should be illegal.

And for the most part this is true. For example, if an employer refuses to promote a woman because she is too assertive or brash, meanwhile praising similar qualities in her male colleagues, then it is clear that she is being stereotyped because she is a female, and that the stereotype is hurting her career. This is unlawful sex discrimination. Similar logic applies to feminine men, or people perceived as falling outside typical gender binaries for one reason or another.

So too, sexual harassment is a form of sex discrimination, because the comments, unwelcome sexual advances, requests for sexual favors, suggestions that sex is required to keep a job or gain a promotion, etc., are motivated in part by sex. Take the same employee and switch the sex and they are treated differently. ( Harassment does not have to be of a sexual nature, however, and it is also illegal to harass a woman by making offensive comments about women in general.)

But it isn't always that simple.

First, note that Congress made an exception for bona fide occupational qualifications - in other words, if the sex of the employee is itself essential to the work performed. They call this BFOQ, and it is the employer's burden to prove it - which makes sense, since this is clearly a somewhat rare exception to the general rule that work isn't sexed. Hooters, for example, somewhat famously qualifies for a BFOQ because they were able to convince the court that their business model involved selling sexual titillation by female waitresses to a straight male clientelle. This means Hooters can not only explicitly and deliberately discriminate against men, but can discriminate against women as well based on sex stereotyping to gratify patrons. Like it or not (and I don't), the Hooters case is probably a fair interpretation of what Congress meant in the statute in establishing a BFOQ exception.

Next are rules that indirectly hurt women's chances - for example, a requirement to be at least 5 feet 9 inches tall, which would exclude 95% of women and only 45% of men. (Census data) Even though this rule does not meet the test we described above for discrimination - after all, a 5.5 foot person is treated the same whatever the gender - the rule is still probably illegal. This is because the law recognizes that what may seem neutral on its face could have a serious real-world impact on the sexes. And so a rule or test like this is usually illegal unless the employer can show that the rule or test is actually related to a requirement to do the job. So, for example, a firefighter might need to lift or carry a certain amount of weight, but even though statistically women might be less likely to be able to do this than men, and even though sex isn't a BFOQ for firefighters, the strength test isn't illegal because it is needed for the job. But a height restriction might not be justified, because equipment may be reasonably adapted for shorter people, and so the adverse impact against women is not really necessary for the job and should be eliminated, even if it isn't intended to discriminate. I think the law in this area generally makes sense - though I would prefer lower proof standards for plaintiffs and stronger procedures and remedies.

But where things really start to fall apart is in the so-called sex plus cases. In these cases there is an explicitly sex-discriminatory rule with no job-related reason, and yet the courts say it is not discrimination. In the seminal case, Willingham, the court held that men could be required to wear their hair short, when no similar rule was imposed on women.

The hair rule at issue easily meets our prior definition of discrimination. If you submit two long-haired applicants identical except for their sex, they will be treated differently. It also seems to be a pretty clear case of sex-stereotyping.

But the courts have reframed this as discriminating among men on the basis of the length of their hair, and said it is not sex discrimination. This has been described as discrimination based on sex plus some additional attribute, and is not considered unlawful. The underlying motivation for the courts in deciding Willingham seems to be that it should be permitted for employers to require men and women to groom and dress differently. Why? The court's answer seems to be that the public expects women and men to look differently, and professional gooming standards are therefore different.

This is unsettlingly similar to the reasoning behind the black codes of segregation - and serves the same essential purpose. By mandating stereotypical appearance - just like unlawful expectations of stereotypical conduct - the employer is signaling distinct roles for employees based on their sex. Title VII was intended to unsettle and combat such discriminatory public standards, and to place people on an equal footing in the workplace regardless of sex, race, etc.

Indeed, if you apply the sex plus logic to any other protected category - dress codes for blacks, dress codes for the disabled, dress codes for foreigners, etc. - it becomes obvious that the court's reasoning is specious, and that the question is not whether this is discrimination or not, but whether this is a kind of discrimination the courts have decided they want to prevent. After all, there is no relevant difference in the text of the statute to justify treating sex plus cases as special, and yet that is what the courts have chosen to do.

In essence, the courts have suggested that gendered dress codes are generally not derogatory. This is both wrong and outside the court's competence. It is outside the court's competence because Congress already considered the matter and decided against discrimination itself, without inviting judicial inquiry into whether the discrimination is intended to be derogatory or not. And it is wrong because separate codes are inherently unequal, suggesting as they do unequal and often inapt gender roles.

As I see it, the employers are imposing gender stereotypes without any justification, and this is straightforward discrimination. So the length of hair, or style of skirts, or what-have-you, should be gender neutral to allow employees to make their own choices from within the available options. There is no BFOQ, no reason at all for a garden-variety retailer be requiring gender performances of these kinds from employees.



Sexual Orientation and Gender Identity Employment Discrimination

As I wrote about yesterday, the EEOC has taken a strong position against sexual orientation and gender identity discrimination in the workplace. For federal employees, this position is the controling law, since the other agencies are subject to the views of the Office of Federal Operations in the EEOC.

But for people working in the private sector - or for state governments - the views of the EEOC are not enough, and the courts must also be convinced. Although for most agencies, the courts usually follow the agency's views on the law they enforce (what is called "Chevron deference") the EEOC is different, and, basically, the courts will consider the EEOC's position convincing only if they find it convincing (what is called "Skidmore deference").

So, what have the courts said about employment discrimination based on sexual orientation or gender identity? The answer may surprise you.

Transgender Protection

Interestingly, transgender people appear to be doing better than gay, lesbian, and bisexual people in this respect. Some circuits appear to have accepted the argument that discrimination against a transgender person can be a form of sex stereotyping under the Supreme Court's decision in Price Waterhouse v. Hopkins. See, e.g., Glenn v. Brumby, 663 F. 3d 1312, 1315-21 (11th Cir. 2011).

But the question isn't settled. For example, the Tenth Circuit in Etsitty v. Utah Transit Authority, 502 F. 3d 1215 (10th Cir. 2007), after holding that transgender is not protected per se, danced around the question of whether transgender could be protected as a from of stereotyping discrimination. The court ultimately held that the employer was lawfully permitted to enforce a rule about men's or women's bathrooms based on the birth sex of the employee.

The Fifth Circuit, meanwhile, which covers Mississippi, does not appear to have directly considered the question. In a footnote to an absolutely riveting decision, the en banc Fifth Circuit recently cited Glenn v. Brumby with approval - which is a very good sign. EEOC v. Boh Bros. Const. Co., LLC, 731 F. 3d 444 (5th Cir. 2013). But that case - which should have been an easy one for the court, if it really appreciated the significance of Price Waterhouse v. Hopkins - nonetheless garnered a dissent joined by six judges, and it is by no means clear what the court would do with a transgender stereotyping discrimination case.

Nor are all transgender people and allies entirely happy with the theory behind these cases. It requires them to assert what Mary Anne Case has called a thin view of their sex - i.e., that for Title VII purposes their sex is the sex assigned to them at birth. The discrimination is then based on failure to conform to gender stereotypes about how a person assigned that sex at birth should behave. (I've previously used this thin view here, and here.) I find Mary Anne Case's view of this question particularly compelling:

My own longstanding and unshaken view, driven at least as much by practical lawyering considerations as by ideological commitments, is that a thin definition of sex in law is not only more normatively attractive but is, in general, a more effective way to achieve legal protection for the broadest possible range of sexual identities, gendered traits, and the individuals manifesting them. . . . This thin, stripped down view of legal sex may not feel true to an individual’s full and rich sense of sexual and gender identity. . . . But the thin view of sex under Title VII, like a thin view of sex in U.S. constitutional law, opens the possibility of legal protection to gender benders of all stripes, regardless of their sex; regardless of whether they can or do make an identitarian claim as transgendered . . . or . . . gay; and regardless of how mild or how extreme, how occasional or how systematic, their transgression of conventional gender norms may be. This thin view of sex, interpreting the words of Title VII to mean that an employee’s sex must be irrelevant to employment decisions, underlies the Hopkins decision, which therefore stands ready to be mobilized both by those who claim a particular sexual identity and those who do not, as well as by those who have one attributed to them by those who discriminate against them in employment and those who do not.

(To read the full article, click here. For a contrary view, click here.)

Sexual Orientation bootstrapping and loopholes in Title VII protection

Now, given what the courts have said about transgender, I would think that it would seem pretty obvious that sexual orientation discrimination would be unlawful stereotyping also. It is, after all, stereotyping about the sex of the person the employee should have sex with, based on the employee's sex. But the Courts have taken a surprisingly hostile view of this claim. The following mind-blowing analysis, from the Second Circuit, is characteristic:

The law is well-settled in this circuit and in all others to have reached the question that.... Title VII does not prohibit harassment or discrimination because of sexual orientation. Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir.2000). . . . Realizing that discrimination based upon sexual orientation is not actionable under Title VII, Dawson avails herself of the gender stereotyping theory of Title VII liability according to which individuals who fail or refuse to comply with socially accepted gender roles are members of a protected class. . . . That is, individual employees who face adverse employment actions as a result of their employer's animus toward their exhibition of behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII.
When utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that [s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality. Howell v. North Cent. Coll., 320 F.Supp.2d 717, 723 (N.D.Ill.2004). Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII. Simonton, 232 F.3d at 38. See also Lex K. Larson, 10 Employment Discrimination § 168.10[1] (2d ed. 2003) (It is not uncommon for plaintiffs to fall short in their Title VII pursuits because courts find their arguments to be sexual orientation (or other unprotected) allegations masquerading as gender stereotyping claims.); Kristin M. Bovalino, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 Syracuse L.Rev. 1117, 1134 (2003) (counseling gay plaintiffs bringing claims under Title VII[to] emphasize the gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality). . . .
Similarly, district courts in this Circuit have repeatedly rejected attempts by homosexual plaintiffs to assert employment discrimination claims based upon allegations involving sexual orientation by crafting the claim as arising from discrimination based upon gender stereotypes. See Martin v. New York State Dep't of Corr. Servs., 224 F.Supp.2d 434, 447 (N.D.N.Y.2002) (The torment endured by Martin ... [t]he name-calling, the lewd conduct and the posting of profane pictures and graffiti are all of a sexual, not gender, nature.); Samborski v. West Valley Nuclear Servs., Co., 2002 WL 1477610, at *3 n. 11 (W.D.N.Y. June 25, 2002) (stating in dicta that although being called a `lesbian' [may be] based not on a perception of true sexual orientation, but rather as a means of denigrating a person because of sexual stereotype, plaintiff's gender stereotyping claim is somewhat undermined to the extent that it rests upon being called a lesbian); Trigg v. New York City Transit Auth., 2001 WL 868336, at *6 (E.D.N.Y. July 26, 2001) (rejecting gender stereotyping claim because plaintiff's Amended Complaint is rife with references to sexual orientation, homophobia, and accusations of discrimination based on homosexuality), aff'd without opinion, 50 Fed.Appx. 458 (2d Cir.2002); cf. Kay v. Independence Blue Cross, 2003 WL 21197289, at *5 (E.D.Pa. May 16, 2003) (holding that gay male plaintiff has shown that he was subjected to adverse treatment because of his co-workers['] perceptions that he was a `miss prissy' or less than [a] `real man.' As such, there is affirmative evidence that the harassment was related to perceptions about Mr. Kay's masculinity, rendering the conduct gender stereotyping actionable under Title VII.); Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212, 1224 (D.Or.2002) (lesbian plaintiff stated Title VII claim by alleging discrimination based upon her failure to conform to supervisor's stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men.).

In this way of looking at things, discrimination against a masculine woman is illegal if the woman is either straight or an f-to-m transexual, but not if she is a lesbian - otherwise, a lesbian person might bootstrap and accidently benefit from the basic protections of Title VII enjoyed by everyone else! This is, in essence, a loophole in Title VII, excluding gay and lesbian people from basic Title VII protections.

In this context it seems ironic that a homosexual that sexually harasses a same-sex employee is liable for sexual harassment under the Supreme Court's unanimous decision in Oncale. Though I certainly agree with Oncale, I can't help but notice that the combination of Oncale and the cases above seems designed to place homosexuals in the worst possible position under the law, without any regard to the logic.

The tension we see in this caselaw provides a mechanism for a change of course. The logical view is that any employer action which differentiates between the sexes is unlawful sex discrimination. Propounding this view is a part of my goal as a litigator.



Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment

Four agencies charged with enforcing federal personnel laws just issued a joint guide to sexual orientation and gender identity discrimination law in the federal workplace. The federal government is really taking the lead on this issue. As the guide states:

As the nation's largest employer, the Federal Government should set an example for other employers that employment discrimination based on sexual orientation or gender identity is not acceptable. All federal workers - including lesbian, gay, bisexual, and transgender individuals - should be able to perform their jobs free from any unlawful discrimination.

What this means, in practice, is that federal employees will benefit from a more aggressive interpretation of the legal protections than working people in the private sector. Unfortunatly, the guide offers little actual guidance on the substance of these protections, but what it does offer is very encouraging.

I think the guide is most useful - for all employees, not just LGBTQ - as a basic outline of SOME of the truly byzantine procedures for enforcing civil service laws. In that respect, it is required reading for federal employees, and a good refresher or introduction for advocates. Click here to read.

On the substance, the guide states forthrightly that Title VII's prohibition on sex discrimination protects persons who have been discriminated against based on sexual orientation and gender identity. This reflects the position of the EEOC, but the courts have not yet universally accepted this view. Fortunately for federal employees, the Office of Federal Operations at the EEOC can probably be relied on to force agencies to accept the executive branch's official view. In my next post, I'll consider the state of the law on these questions in the private sector.

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