Sex and the Workplace

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the terms, conditions, or privileges of employment based on race, color, religion, sex, or national origin by employers with 15 or more employees, states and political subdivisions, and educational entities.

When “sex” was added by amendment to the legislation on the floor of the House of Representatives, it was done by amendment by a southern Democrat who wanted the bill to fail, but it was adopted without much discussion.

Courts have identified one type of unlawful discrimination as quid pro quo (Latin for “something for something”). You cannot require an employee to submit to terms or conditions of employment different than similarly situated employees of another gender (race, religion, etc.). Offering raises in exchange for sex is just one example.

Nowhere in Title VII was there mention of what is known now as a “hostile work environment;” however, in 1986, the U.S. Supreme Court decided Meritor Savings Bank v. Vinson. The Court found Title VII was not limited to quid pro quo discrimination, but the entire spectrum of disparate treatment of men and women in employment, including “discrimination based on sex has created a hostile or abusive work environment.”

The Eighth Circuit (where Nebraska is located) has clarified, in order to qualify as a hostile work environment, the harassment must be so pervasive and severe it actually alters an employee’s terms or conditions of employment and creates an abusive working environment to any reasonable person. A boss who is a jerk to everyone or an employee with poor taste in humor is not sufficient.

Furthermore, nothing in Title VII makes it unlawful for coworkers to date, or for a manager to date a subordinate (although an employer may have a policy against it). The sexual conduct must be unwelcome.

Under Title VII, retaliation is also unlawful. Note: employees have a right to be wrong when accusing their employers of discrimination. An employer must not retaliate against an individual who files discrimination charges, or even participates in an investigation, even if the allegations are unfounded. Discrimination against pregnancy is also now protected.

It is interesting to note courts have not interpreted “sex” to include sexual preference and Title VII does not protect against discrimination against homosexuals; however, courts have interpreted Title VII to protect against discrimination based on gender stereotypes, such as hairstyles and clothing. Even if Title VII does not protect homosexuals directly, many states and local jurisdictions do.

Further, cities, such as Lincoln, and states such as Nebraska have their own provisions that make discrimination based on race, color, religion, sex, and national origin unlawful for employers with less than 15 employees. They may also add protected classes, such as marital status in Nebraska.

While most discrimination in employment is not unlawful – it is not unlawful to discriminate against a terrible employee – proper documentation helps. Call Berry for an initial consultation.

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