• Sex discrimination at work covered under

– Equal Pay Act 1963 (amended FLSA 1938)– Executive Order 11375– Title VII of Civil Rights Act 1964,

as amended by Pregnancy Discrimination Act, 1978 and Civil Rights Act, 1991

Sex Discrimination at Work

Sex Discrimination at Work

• Early cases

– Diaz v Pan Am 1971 - gender was not a legitimate “BFOQ” bona fide occupational qualification for work of flight attendant

– Dothard v Rawlinson 1977 - gender was a BFOQ in prison setting - not hiring women for guards in all male prison was reasonable

Sex Discrimination at Work

• More recent case

– Johnson Controls v UAW 1991 – the employer could not ban 'fertile women' from jobs involving exposure to lead, while denying male leave of absence from such work

– Instead, an “informed consent” standard holds

Sex Discrimination at Work as Sexual Harassment

EEOC defines sexual harassment as …

unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when

(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;

(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

(3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Sexual Harassment

• Early Case

– Barnes v Costle 1977 – first time sexual harassment defined as illegal sex discrimination – quid pro quo form

Sex-based Harassment

Meritor Savings Bank v Vinson 1986 –

harassing work environment focused on sex was also illegal

Sex Harassment

Harris v. Forklift Systems 1993 –

the behavior must be severe or pervasive enough to create a hostile environment and be objectively offensive (from the perspective of a reasonable person) …

and that the work environment does not have to rise to the level of seriously affecting an employee's psychological well being to comprise a hostile work environment

Sex Harassment

Jenson v. Eveleth Taconite (D. Minn. 1991) – sex harassment could be pursued as class action, and defendant queries into plaintiffs backgrounds need be limited

This is the case presented (with partial historical accuracy) in the movie, “North Country”

Sex Harassment

Onscale v. Sundowner 1998 – same-sex harassment was illegal

Sexual Harassment

• What employer should do …

– Have clear, written, understood policy against discrimination on sex (and race, etc.)

– Take complaints seriously– Investigate carefully– Take action when needed