Sex Discrimination

Sex Discrimination

The Law Offices of Kevin J. Dolley represents clients in sex discrimination cases in Missouri and federal courts. “Sex discrimination” is commonly understood to include many forms of discrimination, including discrimination based on biological sex, gender, pregnancy, and sex stereotypes. However, courts continue to vary in how they treat issues of discrimination based on sexual orientation or transgender status. The attorneys at our Firm actively track litigation and legislation in these areas so that we can provide up-to-date, comprehensive legal advice and representation on these matters.

Title VII: Types of Discrimination

Title VII of the Civil Rights Act of 1964, as well as state and local laws, protect individuals against employment discrimination on the basis of sex. Under Title VII, it is unlawful to discriminate against any employee or job applicant because of his or her sex in regard to hiring, termination, promotion, compensation, job training, or any other terms, conditions or privileges of employment. See 49 U.S.C. § 2000e-2.

Courts have found that Title VII prohibits both intentional discrimination and “unintentional” discrimination—that is, discrimination that results from employment practices or policies that have the effect of discriminating against individuals because of their sex (or other protected category). Intentional discrimination is commonly known as “disparate treatment” and involves situations where an employer has treated an individual less favorably than others because of his or her protected trait, such as sex. See Ricci v. DeStefano, 557 U.S. 557, 577 (2009). In general, to prove intentional discrimination, the aggrieved individual must show the employer had a discriminatory intent or motive for taking the job-related action. Id.

“Unintentional discrimination,” on the other hand, is often referred to “disparate impact” discrimination. Although Title VII did not originally include an explicit prohibition on employment policies or practices that result in a disparate impact, the United States Supreme Court interpreted Title VII to prohibit “facially neutral practices” that, in effect, are “discriminatory in operation.” Id. at 577-78. In these cases, the “touchstone” for liability is the absence of “business necessity” for the challenged employment policies or practices: “if an employment practice which operates to exclude [protected individuals] cannot be shown to be related to job performance, the practice is prohibited.” Id. at 578

In 1991, Congress, however, amended Title VII to include an express prohibition of “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” Id.; 42 U.S.C. § 2000e-2(k)(1)(A)(i). However, an employer may defend against any such claim by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Id.

While both these types of discrimination are now expressly recognized and prohibited by Title VII, significant differences continue to exist between them. For example, unlike intentional discrimination cases, compensatory and punitive damages are not available in disparate impact cases. See 42 U.S.C. § 1981a(a)(1). Given the breadth and complexity of federal discrimination law, it is important to always consult a lawyer no matter what type of sex discrimination or claim you think you are facing.

Sexual Harassment

Sexual harassment involves a form of discrimination based on sexually explicit behavior. See also Workplace Harassment. While it is essentially a form of intentional discrimination, it may involve different types of conduct and situations, such as unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Despite such variations, two distinct types of sexual harassment claims are often recognized by courts: (1) quid pro quo sexual harassment; and (2) hostile work environment sexual harassment. Quid pro quo sexual harassment typically involves some form of conditioning employment (or a term or condition of employment) upon an employee providing sexual favors or submitting to sexual advances. Hostile work environment claims, on the other hand, typically do not involve allegations about conditioning a term or condition of employment in exchange for sexual favors; rather, they involve allegations about sexually explicit conduct or behavior that was so pervasive or severe that it resulted in an intimidating, hostile or offensive working environment.

Both Title VII and the Missouri Human Rights Act (“MHRA”) prohibit sexual harassment in the workplace. In determining whether sexual harassment occurred, cases are examined on a case-by-case basis. Sexual harassment claims require specific proof, including proof of offensive or unwelcomed conduct of a sexual nature, that affected a term or condition of an employee’s employment. To avoid or minimize potential liability, employers should have protocols in place for employees who wish to make complaints about any form of sexual harassment. Depending on company organization, the situation may need to be reported to a human resources department, the owner of the company, a supervisor, or an employee hotline. It is also important to note that Missouri and federal law prohibit employees from being retaliated against for reporting or making sexual harassment complaints.

Establishing meaningful avenues and other protocols for reporting sexual harassment concerns or complaints in the workplace is in the best interests of employers and employees. This is especially true because “[t]he MHRA’s prohibition against sexual harassment in the workplace extends to render an employer liable for sexual harassment committed by one employee against another employee.” Doe ex rel. Subia v. Kansas City, Mo. Sch. Dist., 372 S.W.3d 43, 52 (Mo. Ct. App. 2012). In general, the employer must be made aware of sexual harassment by a co-worker for the conduct to become actionable against the employer. If an employer was not notified of such sexual harassment, the employer may avoid legal liability, unless an employee can demonstrate that management knew or should have known about the situation and had the opportunity to correct it. If the employer is aware of sexual harassment, however, it should act immediately in investigating any concerns or complaints, in a manner consistent with its policies, to address and rectify any sexual harassment in the workplace or concerns thereabout. Courts have found the failure to promptly act in such a manner (and/or to have policies to promptly act in such a manner) under such circumstances may expose an employer to liability for damages suffered by an employee experiencing sexual harassment in the workplace.

It is also important to recognize that, to be actionable, sexual harassment need not involve an actual termination. Instead, for example, courts have recognized that sexual harassment may result in “constructive discharge.” However, to prove constructive discharge, an employee must be able to show that a reasonable person would have found the working conditions intolerable and that the employer either intended to force a resignation or could have reasonably foreseen such a resignation as a result of its actions. Hardebeck v. Warner-Jenkinson, Co., Inc., 108 F. Supp. 2d 1062, 1066 (E.D. Mo. 2000).

Sex-Based Stereotyping

In 1989, the United States Supreme Court concluded Title VII also prohibits employment decisions based on sex-based stereotypes or assumptions about abilities, traits, or the performance of individuals. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989). Sexual stereotypes are generally understood to mean generalized behaviors or attitudes that are thought to be appropriate and normal for a person based solely on his or her biological sex. Nonetheless, Circuit Courts of Appeal across the country are split on the issue of whether discrimination based on sexual orientation or gender identity qualifies as sex discrimination under Title VII; however, the United States Supreme Court will soon decide these separate, but somewhat related, issues in the 2019-2020 term.

Courts in Missouri have addressed similar issues related to sex discrimination under the Missouri Human Rights Act (“MHRA”). In 2015, in Pittman v. Cook Paper Recycling Corp., the Western District Court of Appeals held the MHRA does not prohibit discrimination on the basis of sexual orientation. 478 S.W.3d 479, 485 (Mo. Ct. App. 2015). However, Missouri regulations state employers cannot refuse to hire an individual based on stereotyped characterizations of the sexes, such as women being less capable of aggressive salesmanship. See 8 C.S.R. § 60-3.040. And, in 2019, the Missouri Supreme Court weighed in on the issue of sex-based stereotyping and held, as a matter of first impression, that “an adverse employment decision based on sex-based stereotypical attitudes of how a member of the employee’s sex should act could support an inference of unlawful sex discrimination.” Lampley v. Mo. Comm. on Human Rights, 570 S.W.3d 16, 24 (Mo. banc 2019). So, while Missouri courts have ruled that sexual orientation is not a protected category under the MHRA, they have approved “sex stereotyping” as a basis to infer sex-based discrimination in a case.

The Pregnancy Discrimination Act

In 1978, Congress passed the Pregnancy Discrimination Act (“PDA”) as an amendment to Title VII of the Civil Rights Act of 1964. As a general matter, the PDA clarified that discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy, childbirth, or related conditions must be treated in the same manner as other applicants or employees with similar abilities. Several other important principles have grown out of the PDA. By way of example, an employer cannot refuse to hire a woman because of her pregnancy-related condition if she is able to perform the major functions of the job. An employer must permit a pregnant employee to do her job for as long as she is capable of performing the job. If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her in the same as any other temporarily disabled employee. An employer also may not implement a rule that prohibits women from returning to their jobs after a predetermined time period following pregnancy. And, with regard to job applicants, an employer cannot refuse to hire an individual because of any prejudice against pregnant workers or because of any such prejudice of its co-workers, clients or customers.

Contact Us

To set up a consultation about any form of, or concern about, sex discrimination, please contact Attorney Kevin J. Dolley at (314) 645-4100 or by email at kevin@dolleylaw.com. All legal consultations are held strictly confidential.

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