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Workplace Harassment and Employment Discrimination

The law provides substantial protection for employees from workplace misconduct by their employers or coworkers. Yet despite existing laws and policies enacted to protect individual dignity, many employees continue to suffer from workplace harassment and employment discrimination.

The United States Supreme Court, as well as federal district and state courts, define employee rights and an employer’s liability for employment law violations. The trend is clear: treatment on the job, including hiring, firing, and promotions, must be based on qualifications and merit and not on race, gender, age, sexual preference, disability or how one responds to sexual advances in the workplace.

Race and Sex Discrimination

The federal Civil Rights Act of 1964, Title VII, prohibits employers from discriminating against job seekers and employees on the basis of race, religion, sex, pregnancy, and national origin. Private employers with less than 15 employees are not subject to the Act. However, some states do not set numerical limits. California, for example, prohibits racial or sexual discrimination no matter how few workers the company employs.

Before an employee may file a employment discrimination lawsuit in court, he or she must first present the charge to the Equal Employment Opportunity Commission (EEOC). If the employee fails to file an EEOC charge within the required time period, any federal claim under Title VII will not be allowed. Also, if an employer is a public entity such as a government agency, municipality, hospital district or public school district, an employee with a claim under Title VII must first file administrative complaints or requests for review before going to the courthouse.

The lesson to learn here is important: while the laws protect employees from misconduct by employers and co–workers, employees must meet very specific time limits and procedures. If you have experienced discrimination in the workplace, do not let time run out on a potential valid claim.

Sexual/Gender–Based Discrimination

Sex discrimination in the workplace comes with many different faces. In its most basic form, it involves outright exclusion of women, solely by reason of their gender. However, even where women have gained access to the workplace, sex discrimination may persist in other ways. Examples include identification of particular jobs as “man–only” or “woman–only” or through the existence of a “glass ceiling” that ensures women will only go so far on the corporate ladder.

Another biased practice is to have two unwritten sets of rules for success: for men, based on performance, and for women, based on appearance. An employer may not make a woman’s level of attractiveness a requirement for a particular job category. In one case, Southwest Airlines tried to justify its policy that only attractive women could work as flight attendants and ticket agents (Wilson v. Southwest Airlines Co.; N.D.Tex.1981; 517 F.Supp. 292). The airline argued that sex appeal was a “bona fide occupational qualification” under Title VII, saying that Southwest wanted to project a “sexy image and fulfill its public promise to take passengers skyward with love.” However, the federal district court rejected Southwest’s defense.

A significant area of occupational gender discrimination is found in a “sex plus” theory, which is based first on the gender of an employee and then adds marital status or child–bearing ability. In a U.S. Supreme Court case, a company refused to hire women with pre–school–age children but hired men who had pre–school–age children. The Court held that the company was liable to its female employees because Title VII prohibits the use of one hiring policy for women and another for men (Phillips v. Martin Marietta Corp.; 1971; 400 U.S. 542). Pregnant female employees and women of child–bearing years also are legally protected against workplace discrimination. Generally, a workplace cannot bar pregnant women from the workplace without violating anti–discrimination laws.

An often–overlooked area of gender discrimination is in the benefits an employer provides to its employees. While it is obvious that male and female employees have different, sex–based disability and healthcare needs, the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception. The special or increased healthcare needs associated with a woman’s unique sex–based characteristics must be met to the same extent, and on the same terms, as other healthcare needs. Excluding women–only benefits from a generally comprehensive prescription plan is sex discrimination.

Another federal law, the Equal Pay Act (EPA), also places a gender–neutral requirement on employers—it prohibits gender discrimination in the form of unequal pay for “substantially equal” work. A woman who files an EPA claim must show that she was paid lower wages for performing substantially equal work as her male co–workers. Equal work means jobs that require equal skill, effort and responsibility.

Sexual Harassment

Sexual harassment is a type of sex discrimination that occurs when an employer links an employee’s job status to his or her response to a sexual suggestion or innuendo. The law also prohibits an employer from permitting or creating a workplace where employees are subjected to a sexually–charged, hostile atmosphere. For example, if employees post obscene calendars or photos that are offensive to their coworkers, the company may be liable for harassment if it does nothing to stop the practice. Sexual harassment has also included slurs about a person’s body or appearance; unwanted comments about a woman’s pregnancy; and leering or suggestive gestures. Determining what constitutes sexual harassment depends upon the frequency of the offense; its severity; and whether it interfered with the employee’s work performance.

As in other cases involving a legal claim against an employer, an employee who feels that he or she has been the victim of workplace sexual harassment must first exhaust “administrative remedies.” This involves filing a complaint with the EEOC, or in some cases, with a state agency. The law protects working citizens against unwanted and offensive sexual harassment on the job. However, the law also operates on a strict timeline, and if an employee fails to timely file a complaint with the EEOC or other required agency before filing a lawsuit against the offending employer, any court action may be barred.

Age Discrimination

The federal Age Discrimination in Employment Act (ADEA) prohibits hiring or firing employees on the basis of age. Employers also may not force employees to retire before age 70, deny promotions based on age, or punish older workers with reduced pay or benefits.

The ADEA only applies to workers aged 40 and over. Therefore, not hiring someone age 45 because of age considerations would be disallowed; but not hiring someone age 22 based on age would be allowed. Most states also have various age discrimination laws that are similar to the federal ADEA.

Discrimination Based on Disability

The Americans with Disabilities Act (ADA) prohibits employment discrimination based on disability. A “disability” is a physical or mental problem that greatly limits a major life activity such as walking, breathing, seeing, hearing, or speaking. The job seeker or employee must otherwise satisfy the requirements of the position based on experience and skills. Employers are required to make reasonable efforts to allow a disabled employee to work successfully. For example, the employer might make work schedule changes, modify equipment, or provide readers or interpreters.

States are allowed to provide broader protection for people with disabilities than that provided by the federal ADA. For example, California law covers individuals whose impairments “limit” major life activities while ADA only covers those whose problems “substantially limit” major life activities. The California Supreme Court recently used the state definition of disability to rule in favor of a maintenance foreman with a back injury who was unfairly assigned to heavy labor tasks (Francisco Colmenares v. Braemar Country Club, Inc.; California Supreme Court; February 20, 2003).

Information About Job Discrimination Claims

We have presented a very brief overview of employment law. For more information about job discrimination, see the U.S. Equal Employment Opportunity Commission web site. If you believe you have been discriminated or harassed on the job or in applying for work, please feel free to contact us to learn about your legal options.

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