Over the last year, gender considerations have garnered significant attention from the media, employees, employers, courts, and the Equal Employment Opportunity Commission (the “EEOC”). Employers should expect the dialogue on gender issues in the workplace to continue, and should take proactive measures to ensure they are in compliance with all state and federal employment laws. Employers should also ensure that that their policies and procedures adequately address gender considerations in the workplace.
Gender Discrimination
As most employers are aware, Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from refusing to hire any individual, terminating an employee, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). The conversation around Title VII’s prohibition against sex discrimination has focused in large part on whether “sex” includes sexual orientation.
Courts across the country are divided on whether Title VII protects employees from discrimination against an individual based upon the individual’s sexual orientation. In 2017, in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), the U.S. Court of Appeals for the Eleventh Circuit (the federal appellate circuit for the Georgia, Alabama, and Florida federal district courts) held that sexual orientation is not protected by Title VII. In December 2017, the U.S. Supreme Court declined to review the Evans decision.
In Zarda v. Altitude Express Inc., 883 F.3d 100 (2d Cir. 2018), the EEOC advocated for a ruling that Title VII protects employees from discrimination on the basis of sexual orientation. In February 2018, the 2nd Circuit Court of Appeals agreed, ruling that sexual orientation should be treated as a subset of sex discrimination because: (1) sexual orientation is defined by someone's gender and the gender of the person to whom that individual is attracted; (2) sexual orientation discrimination is based on assumptions or stereotypes about how members of a particular gender should behave, including to whom they should be attracted; and (3) sexual orientation discrimination is discrimination based on someone's association with someone else solely because of that other person's gender. In May 2018, Altitude Express submitted a petition to the U.S. Supreme Court asking the Court to review the 2nd Circuit Court of Appeals’ holding. The Supreme Court has not yet announced whether it will review the decision.
There has also been discussion regarding Congress amending Title VII to specifically include sexual orientation as a protected category. However, no such amendment appears to be imminent at this time. Due to the uncertainty surrounding the issue, employers should be aware of the risk of treating employees differently on the basis of their sexual orientation.
Employers should also take care regarding gender identification of their employees. Employers should avoid making assumptions about any employee on the basis of the employee’s gender or gender identification. Decisions about employee’s position, job duties, placement or compensation should be based on performance, qualifications, and experience, and should not be influenced by the employee’s gender identification.
The EEOC has devoted significant resources to gender related employment issues, including disparities in pay and promotion between males, females, and members of the LBGTQ community. We recommend that employers review their pay and promotion practices to ensure that equal opportunities are being provided to all genders and that any disparities in pay or advancement opportunities are addressed or can be explained by measurable job-related factors such as qualifications, experience, and performance of job duties.
Sexual Harassment
Anyone who has watched the news or used social media in the last year knows that sexual harassment is a significant ongoing concern for employers. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex or another protected characteristic.
The Eleventh Circuit has described the criteria for actionable harassment as follows: Harassment is severe or pervasive for Title VII purposes only if it is both subjectively and objectively severe and pervasive. Harassment is subjectively severe and pervasive if the complaining employee perceives the harassment as severe and pervasive, and harassment is objectively severe and pervasive if a reasonable person in the plaintiff's position would adjudge the harassment severe and pervasive. When determining whether harassment is objectively severe and pervasive, courts consider the frequency of the conduct, the severity of the conduct, whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and whether the conduct unreasonably interferes with the employee's job performance.
The Supreme Court has stated, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275 (1998).
We recommend that employers review their policies to ensure that they clearly prohibit sexual harassment and explain the process by which employees can report harassment and how those reports will be handled. These policies should also state that the employer will not retaliate against any employee for reporting harassment.
Employers should investigate all reports of harassment, even those that seem to lack credibility. Following established policies and procedures for all reports of harassment will help an employer in defending a harassment complaint with the EEOC and in court. Employers should refrain from discussing the investigation with any employees who are not involved in the complaint. However, the National Labor Relations Act prohibits employers from instructing employees that they cannot discuss workplace issues with other employees.
Employers should also train employees – especially those who supervise other employees – regarding appropriate workplace conduct and types of conduct that are prohibited, as well as the procedure for reporting inappropriate conduct. Management employees should be trained on how to appropriately handle reports of inappropriate conduct. All trainings should be documented by having employees sign to acknowledge that they received the training.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
