Employment Law (Mgmt 445) Professor Charles H. Smith Gender and Family Issues Legislation: Title VII and Other Legislation (Chapter 4) Fall 2006

Gender Discrimination Title VII prohibits employment discrimination on the basis of gender. Dress codes and grooming requirements – need not be identical for men and women; must be related to commonly accepted social norms and reasonably related to legitimate business needs; case study – Case Problem 5 (page 110). Can gender be a BFOQ? – Yes per section 703(e) of Title VII, if the safe and efficient performance of the job requires it; employer inconvenience or added cost, or customer or co-worker preference, will not justify BFOQ based on gender. Case study – Diaz v. Pan American World Airways (pages 71-72).

Gender Discrimination cont. Gender stereotyping – can some characteristics which are “acceptable” for men considered to be “unacceptable” for women? –Example – man who acts tough is considered good for business, but woman is considered “too masculine” or “a bitch.” –Case studies – Price Waterhouse v. Hopkins (pages 73-76) and Case Problems 4 and 6 (page 110).

Equal Pay Act of 1963 Covers all employers and employees engaged in interstate commerce; no minimum number of employees like Title VII. Look to “equal” work, effort, skill, responsibility and working conditions. Defenses – bona fide seniority system or “factor other than sex.” Remedies – back pay and liquidated damages, but punitive damages not allowed. “Comparable worth” – compensation can be set per “market” wages. Gender-based pension benefits Case studies – Laffey v. Northwest Airlines (pages 80-82), City of Los Angeles v. Manhart (pages 85-87) and Case Problem 3 (page 109).

Pregnancy Discrimination General Electric case in 1976 – no Title VII violation where company refused to include pregnancy or relation conditions in sick-pay plan even though male- specific disabilities such as vasectomies were covered. Pregnancy Discrimination Act of 1978 – amendment to Title VII to clarify that “because of sex” or “on the basis of sex” include pregnancy, etc. Pregnancy and hazardous work conditions – restrictions by company intended to “protect” against birth defects violate Title VII; “[d]ecisions about the welfare of future children must be left to parents... rather than to the employers who hire those parents.”

Family and Medical Leave Act Serious health condition – illness, injury or condition that requires inpatient hospital care, or lasts more than 3 days and requires continuing health-care provider treatment, or involves pregnancy, or long-term or permanently disabling health condition. 12 weeks of leave can be taken all at once or intermittently in some situations. Covers private sector employers with 50 or more employees and all public sector employers; employee must be employed by employer for at least 12 months and worked 1,250 hours during those 12 months except for employer-designated “key employees” (no leave since employer would have to replace employee to prevent substantial and grievous economic injury to the company; must be in highest 10% paid employees). Case study – Price v. Marathon Cheese Corp. (pages 90-92).

Sexual Harassment Sexual harassment in the workplace involves sex but is really about the employer’s power trip/abuse of authority; can be man harassing woman, woman harassing man or same-sex harassment. Two types of sexual harassment –Quid pro quo – typically shown by request by employer/supervisor for sex in exchange for employee’s getting or keeping job, promotion, etc. –Hostile environment – usual situation is atmosphere of comments, conduct, decorations, etc. of sexual nature in the workplace; case study – Harris v. Forklift Systems, Inc. (pages 97-98).

Sexual Harassment cont. How to analyze whether sexual harassment has occurred? Should court use “reasonable person” or “reasonable victim” standard? “Reasonable person” – more objective; focus on how a reasonable person (not man or woman) would react. “Reasonable victim” – more subjective; focus on how a reasonable victim (including whether victim is a man or woman) would react. Courts currently lean toward reasonable person standard but still take subjective factors into account.

Sexual Harassment cont. Employer liability if employee commits sexual harassment –Supervisor – employer liable if supervisor acting within course and scope of employment in quid pro quo case; employer liable in hostile environment case under standard stated in Faragher v. City of Boca Raton (pages ) –Co-workers – employer liable if it knows or should have known of harassment and failed to take reasonable steps to stop it. –Clients/customers – employer liable if had some control over harasser and failed to take reasonable steps to stop harassment once employer became aware of or should have become aware of harassment. Individual liability for employee who commits sexual harassment – no liability under Title VII, but public employee can be liable under other federal civil rights statutes.

Sexual Harassment cont. Defenses –Prevention – see Faragher standard. –Conduct of a sexual nature must be “unwelcome” to be harassment; consensual conduct is not harassment. –Provocation – did victim instigate harassment through own dress, comments or conduct? Can show that “harassment” was not “unwelcome.” –Conduct of a sexual nature – tasteless or abusive conduct is not harassment if not of a sexual nature. Remedies – injunction against further harassment, compensatory and punitive damages, attorney’s fees and reinstatement.

Sexual Orientation or Preference Discrimination While the protection of Title VII is wide- ranging, it does not protect against some types of discrimination that could be considered related to gender discrimination, such as discrimination against gays, lesbians, transvestites and transsexuals. However, state discrimination statutes (including California) and 14 th Amendment equal protection clause can provide this protection. Case studies – Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (page 106), Lawrence v. Texas, 123 S.Ct (2003) (page 107) and Case Problem 10 (pages ).