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Category: sexual discrimination

How To Be an Ally in the Workplace

Posted on by Dakota Murphey
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Dakota Murphey

There can be no doubt that we are starting to get better at facing up to uncomfortable or awkward issues in the workplace.

The rise of the #MeToo and Black Lives Matter movements have taken topics that were once taboo and pushed them into the mainstream. In doing so, they have shown us how necessary it is to be allies to others at work. 

Promoting inclusivity and diversity in the workplace is a benefit not only to staff, but also the whole organization, as it can push forward new ideas and create a competitive edge for the company over competitors.

Ideas around this subject need to target everyone from the top level down the company, while understanding disability and the language of discrimination being key. Implementing diversity and inclusivity training can support everyone work at to be a better ally in the workplace.

Indeed, even if you feel like you are already doing a lot to be an ally, it is always a good idea to continue learning and re-learning these important lessons. 

In this article, we examine how anyone can be a better ally to underrepresented communities in the workplace. 

Educate yourself

The most crucial step to being an ally in the workplace is actually educating yourself. Learning – and in some cases unlearning – behaviors and mindsets is a crucial starting point, and there are many ways to do this.

It’s a great idea to start reading about ideas about systemic inequality, as well as finding ways to diversify the thoughts and ideas that you hear. It is too easy to go into the idea of being an ally with a fixed mentality – and actually, much of this way of thinking can be unhelpful, even if it comes from a good place. 

Promote creative expression

We can sometimes get stuck in the mindset that being an ally is all about political or economic matters in the workplace. In fact, there is a huge range of different ways to be authentically an ally to others in the workplace, in ways that you might not have considered. For example, promoting a colleague’s creative expression can be valuable.

“Creative support and encouragement is pivotal, especially from those who are in similar playing fields as you,” says Dondre Green, a photographer speaking to MPB. “This could look like sharing opportunities, advice, and budget negotiation numbers. I’ve seen even more Black creatives come together over the last few years and be put in positions to hire artists for assignments, too, which is a plus. In terms of representation, it matters.”

Listen to and lean on colleagues

It is important to resist the temptation to make assumptions about what is best for your colleagues. Even though your intentions may be good, you can end up putting your own presumptions forward and this might not end up being the best possible outcome from those you are trying to be an ally to. 

Remember that being an ally isn’t about doing what you think is right for an individual or community – rather it is about listening to what they need and putting that into action. And crucially, you need to think of listening as an act not only of understanding but also of empathizing.

It is therefore important to understand the nuances and language around racial issues and other issues that might affect minority groups  in the workplace by educating yourself, seeking professional guidance or finding support from colleagues.

The challenges that minorities and underrepresented groups face is often not the fault of the actions of individuals but rather systemic problems that won’t go away until they are acknowledged and faced.

Use your privilege 

Often misunderstood in the context of allyship, privilege is a key issue when it comes to providing support in the workplace. Some people take the concept of ‘privilege’ to be an insult or an attack on their personal character. This isn’t the case at all.

No one is saying that being privileged means that you have never faced any hardship of your own, or that you haven’t worked hard to get where you are.

Rather privilege should be seen as something that each of us generally has in one form or another.

Having a university education, for example, or facing no mental health issues, are forms of privilege that some people have. True allyship involves using the privileges that you have to defend or advocate for those who don’t have those same privileges. 

The first step in using privilege effectively is acknowledging it. From there it can be understood, and it can then be used to the advantage of those you are being an ally to. 

Many people are reluctant to be an ally in the workplace because they are worried that they might ‘say the wrong thing’ or act in a way that isn’t actually helpful. Don’t let this discourage you. Allyship exists in a sometimes awkward space and no one is expecting you to be perfect – it is all an opportunity for everyone to learn. 

Being an ally in the workplace is something that you can do that will make a genuine difference to colleagues’ lives and livelihoods.

Whether it is anything from ensuring that you are inclusive when listening to opinions in meetings, to implementing a diversity policy for future hiring; these are things that will benefit you and your business in the long-term. 

This blog was contributed to Workplace Fairness on January 4, 2023. Published with permission.

About the Author: Dakota Murphey is a contributor to Workplace Fairness.


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A sexist Republican just gave the Supreme Court exactly what it needs to legalize sex discrimination

Posted on by Ian Millhiser
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Mississippi state lawmaker and Republican gubernatorial candidate Robert Foster refused to travel with a reporter covering his campaign — because the reporter is a woman.

The reporter, Larrison Campbell, is one of several journalists from the outlet Mississippi Today, who asked if they could shadow Republican candidates running to lead the state. Both of Foster’s opponents agreed to this arrangement, although the reporter assigned to cover their campaigns happened to be male. Foster, however, refused to allow Campbell to ride along with him unless she was accompanied by a man.

On Twitter, Foster later explained that he discriminated against Campbell because of an arrangement with his wife.

It must be very sad to be in a marriage built on such a foundation of mistrust, but Foster’s sexism could also have profound legal implications. While Foster’s discrimination against a reporter is unlikely to end in a civil rights lawsuit, an employer who followed this “Billy Graham Rule” would necessarily deny professional opportunities to their female employees.

Imagine, for example, that a female campaign aide asked to ride with Foster because they wanted to share an idea for how to improve Foster’s stump speech. That aide would be denied this opportunity, while a male colleague with a similar idea would be allowed to ride with Foster.

Such an arrangement violates Title VII of the Civil Rights Act of 1964, which provides that employers may not “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

But here’s the problem — after Foster’s initial tweet explaining that he would not ride with Campbell because of his arrangement with his wife, Foster explained that this arrangement is tied up in his religious identity.

If you’ve followed the drama about whether anti-LGBTQ business owners should have a right to discriminate if they claim a religious justification for doing so, it’s not hard to see how Foster’s arrangement — or a similar arrangement by another employer — could end.

Let’s say that Foster refuses to travel with female aides while giving this professional opportunity to male aides. One of them sues, asserting that Foster violated Title VII. Foster then claims that he has a right to violate Title VII because his sexism is rooted in his religious beliefs. How would the Supreme Court handle such a case?

The short answer is that we don’t know for sure, but the court gave us a pretty good hint in Burwell v. Hobby Lobby, and that hint suggests that there are five votes on this Supreme Court to hold that sexist religious beliefs trump Title VII.

Hobby Lobby involved an employer who, in violation of federal regulations, refused to cover certain forms of birth control in their employee health plan. Prior to Hobby Lobby, this employer would have lost because the law did not allow “religious liberty” claims to diminish the rights of third parties — in this case, the rights of the company’s employees who wanted contraception. Hobby Lobby scrapped this longstanding rule, and permitted religious objectors to wield their objections against the rights of others.

But if religious objections now trump other peoples’ rights, what does that mean for anti-discrimination law? In a single paragraph, Justice Samuel Alito, who wrote the majority opinion in Hobby Lobby, tried to calm this concern. “The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race,” he wrote, “and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

Notice what Alito did there, however. While he specifically states that race discrimination in employment cannot be justified by religion, he rather pointedly does not say that other forms of discrimination — such as sexism or homophobia — cannot be justified by a religious objection to obeying a civil rights law.

The Supreme Court, moreover, has only grown less sympathetic to victims of discrimination since Hobby Lobby. Both of Trump’s appointees to this court, Neil Gorsuch and Brett Kavanaugh, are significantly more conservative than the man they replaced.

So, while it is not certain that there are now five votes to say that sexist religious beliefs nullify Title VII, it is quite likely that they are. And the “Billy Graham Rule” that Foster says he follows would give this Supreme Court exactly the vehicle it needs to hold that laws banning discrimination against women must bow to religious conservatives.

This article was originally published by Think Progress on July 10, 2019. Reprinted with permission. 

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.


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Should HIV-Positive Workers Be Allowed in the Sex Industry? Some Advocates Say Yes.

Posted on by Carrie Weisman
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Carrie WeismanIndividuals who are HIV-positive are not permitted to participate in the adult entertainment industry. That standard is enforced through the Performer Availability Screening Services, otherwise known as PASS. Anyone who tests positive for HIV is permanently banned from the system.

The same applies to other regulated subsets of sex work. To date, Nevada is the only state where full-service sex work is legal. All individuals who apply for work must undergo medical testing for STIs, including HIV. According to Jeremy Lemur, a P.R. representative for one of Nevada’s 21 legal brothels, anyone who tests positive for the virus is not welcome to work at any legal establishment within the state.

But not all sex workers think HIV-positive people should be banned from the field. Jacen Zhu is an adult performer and LGBTQIA activist. According to him, there are schools of queer performers who believe in opening up the industry gates to those living with an undetectable HIV status.

The word “undetectable” is important to emphasize here. The advance of antiretroviral therapy has dramatically shifted the prognosis of those who test positive for HIV. The medication works by preventing copies of the exciting virus from replicating and blocking new ones from entering human cells. So long as they remain vigilant with this medication regime, HIV positive individuals are able to maintain a normal lifespan. In fact, the medication is able to suppress viral loads so effectively that standard blood tests will not be able to detect any trace of the virus. This is what it means to become “undetectable.” And that’s an important status to carry, especially in the context of intimate relationships. A 2017 report conducted by the Centers for Disease Control and Prevention found that 49% of people living with HIV in the United States had reduced their viral loads to an undetectable level.

“If you have an undetectable viral load for an extended period of time, say 6 months, it is extremely unlikely that you would transmit the virus to an uninfected partner,” explains Dr. William Short, an infectious disease specialist based in Philadelphia. Short is also an Associate Professor of Clinical Medicine at the Perelman School of Medicine of the University of Pennsylvania and serves on the board of directors for the American Academy of HIV Medicine. “Thousands and thousands of acts of condom-less sex have been studied,” he adds. “The science is very clear.”

“Many gay and queer performers are rallying in support of undetectable performers being able to work,” says Zhu. “[We are] fighting stigma from within our own safe-spaces. These performers are proactive in their sexual health. If we’re in an industry promoting sex, we also hold the responsibility of being sexual health advocates.”

While there is a notorious lack of data about sex work, it’s safe to say that some will face financial hardship if they are no longer able to work in this field. Sure, there are the headlines that suggest some individuals have been able to amass incredible earnings from their time in the field, but the more likely reality is that the many more turn to sex work as a means of survival. This is especially true of marginalized communities who experience difficulty securing housing, employment and the proper documentation required to enjoy a safe and stable existence.

To be sure, people in the industry have genuine fears. Some of the backlash is coming from other performers. In January of this year, thousands of people poured into the Hard Rock Hotel and Casino in Las Vegas in anticipation of the Adult Entertainment Expo. The annual event is designed to spotlight new products and services related to the adult entertainment industry. This year, the organizers agreed to throw in a discussion surrounding HIV, a subject that is often shunned from conversations concerning mainstream porn. The idea was to decrease the stigma of what has now become a controllable diagnosis, open up a dialogue about safety and consent, and explore how HIV and the adult entertainment industry may interact in the future. But hopes of what that conversation may blossom into disintegrated the moment performers hit the web with concerns over what a more lax approach to the virus could mean for the industry.

Some grassroots organizers emphasize that the decriminalization of sex work is critical to protecting the health of workers and clients.

Nina Luo is a community organization at Vocal-NY, a grassroots organization that provides harm-reduction services to low-income individuals affected by HIV/AIDS. She’s also the press coordinator for Decrim NY, a coalition designed to decriminalize the sex trade in New York City and State. According to her, decriminalization gives sex workers a better shot at actually tracking their interaction with the virus. Without the fear of police, they are in a better position to do things like negotiate condom use, disclose their status and access medical resources. This, in turn, gives clients the ability to utilize informed consent when deciding whether or not they want to move forward with things. According to a Lancet study, decriminalization can reduce new HIV infections amongst sex workers, partners and clients up to 45%.

This is important to keep in mind, even for those currently working within legal environments. Sky (who prefers to be identified by her professional name) has been working at Sheri’s Ranch in Nevada for a little over a year. Earlier this year, a federal lawsuit was introduced aiming to outlaw the brothels. “If the brothels go away, none of the women I’m speaking with are talking about how to leave the sex industry,” she says. They’re all talking about how they’re going to survive in a sex industry that’s no longer legal.” At the brothels, the women are required to use barrier methods during any sexual interaction with a client. Escorts don’t typically enjoy that same security working independently, and illegally.

According to an investigation conducted by UNAIDS in 2014, stigma, discrimination and “punitive legal environments,” are key determinants in HIV vulnerability. UNAIDS found that of as many as 48% of U.S. sex workers say they have had their condoms confiscated by police.

It’s a tightrope to walk between forging a system designed to protect the health and wellness of those in the industry and protecting the individual freedoms of sex workers. Decriminalizing the industry means law-enforcement officials would be unable to intervene in activities and transactions related to sex work. This would give both clients and providers more say in whom they choose to work with and in what capacity. Legalizing it, on the other hand, would require a series of regulations be put into place, ones that would likely alienate certain individuals from the field, particularly those who test positive for HIV, even if undetectable.

Loosening up stigmas surrounding the virus, meanwhile, would serve sex workers even—when off the clock.

“Sex workers are afraid of disclosing their work to healthcare providers for fear of lower quality service, discrimination, criminalization or harassment. This linkage between a patient and healthcare provider is critical to identifying violence, exploitation, trafficking, yet it’s disrupted by criminalization,” says Luo.

“We’re not trying to create a new industry,” she adds. “But we do want to remove policing and criminalization from sex workers’ lives.”

This article was originally published at In These Times on July 10, 2019. Reprinted with permission.

About the Author: Carrie Weisman is a journalist based in New York City. She reports on sex, relationships and culture.

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EEOC lawsuits allege sex discrimination in physical ability tests

Posted on by The Attorneys of Passman and Kaplan
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Three different cases. Three different theories of gender discrimination. But one common thread – an old school presumption that certain blue-collar jobs are a “man’s work.”

The Equal Employment Opportunities Commission (EEOC) has filed suit against three U.S. employers for sex discrimination in hiring. The lawsuits allege overt bias against female job candidates in the form of bogus physical tests, physical appearance, and a blatant “no girls allowed” hiring policy.

EEOC takes a strong stand against gender bias

Perhaps it was simply a coincidence of timing. But the EEOC is sending a message in three unconnected cases that gender discrimination will not be tolerated in 21st century America. When the EEOC was unable to resolve each of the cases through pre-litigation channels, it filed suit against a railroad (CSX Transportation), a shipping company (R&L Carriers) and a parking management service.

  • At CSX, female applicants failed physical requirement tests at a substantially higher rate than male candidates. Rather than indicating women are physically unfit for the industry, the EEOC contends that the tests favor men through arbitrary benchmarks.

Apparent rationale: They all take the same test. Not our fault if the ladies can’t cut it.

  • In the Eagle Parking case, a woman was turned down on the presumption – based on nothing more than her appearance – that she could not handle the “physicality” of the job. She was urged to apply for a desk job instead.

Apparent rationale: In the manager’s professional opinion, based on years of parking cars, a woman could not perform such a back-breaking feat.

  • In the R&L Carriers case, the EEOC alleges straight-up discrimination; no women are hired as dockworker and loaders, even when they are qualified candidates.

Apparent rationale: Some jobs are for dudes, and you’re not a dude.

Physical requirements can be an unfair barrier to women

The EEOC litigation will prompt a close look at physical ability requirements in candidate screening and hiring, particularly in traditionally male occupations. Courts have generally upheld the right of employers to use physical ability as a hiring criteria, with a few caveats: (a) physical tests must reflect the actual job duties, and (b) minimum requirements cannot be set arbitrarily high to exclude women.

For instance, only 7 percent of U.S. firefighters are female, chiefly because so few can pass the rigorous obstacle course exams. Through equal opportunity lawsuits, the physical ability standards have been scaled back in many jurisdictions to give female applicants a fighting chance to win the job and prove themselves. Detractors say the revised standards are watered down and compromise safety. Proponents say the standards were based on male demographics and were unnecessarily tough — no firefighter performs all those feats in an actual fire call.

Is the job really that rigorous?

Most blue-collar jobs do not require “American Ninja” strength and agility. Basic physical fitness is typically sufficient, and those who truly can’t do the work will soon quit or be let go. Too often, the barrier to employment is not women’s muscles but men’s outdated attitudes.

This blog was originally published at passmanandkaplan.com on August 8, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.


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Women Haven’t Gained A Larger Share Of Corporate Board Seats In Seven Years

Posted on by Pat Garofalo
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In addition to grappling with a persistent pay gap, working women also have to deal with extreme difficulty ascending to powerful corporate positions, according to a report by the research organization Catalyst. As Bryce Covert explained at The Nation:

Women held just over 14 percent of executive officer positions at Fortune 500 companies this year and 16.6 percent of board seats at the same. Adding insult to injury, an even smaller percent of those female executive officers are counted among the highest earners—less than 8 percent of the top earner positions were held by women. Meanwhile, a full quarter of these companies simply had no women executive officers at all and one-tenth had no women directors on their boards. […]

Did this year represent a step forward? Not even close. Women’s share of these positions went up by a mere half of a percentage point or less last year. Even worse, 2012 was the seventh consecutive year in which we haven’t seen any growth in board seats and the third year of stagnation in the C-suite.

Overall, more than one-third of companies have no women on their board of directors. But economic evidence shows that keeping women out of the board room is a mistake. According to work by the Credit Suisse Research Institute, “companies with at least one woman on the board would have outperformed in terms of share price performance, those with no women on the board over the course of the past six years.”

This post was originally posted on Think Progress on December 11, 2012. Reprinted with Permission.

About the Author:  Pat Garofalo is the Economic Policy Editor for ThinkProgress.org at the Center for American Progress Action Fund. Pat’s work has also appeared in The Nation, U.S. News & World Report, The Guardian, the Washington Examiner, and In These Times. He has been a guest on MSNBC and Al-Jazeera television, as well as many radio shows. Pat graduated from Brandeis University, where he was the editor-in-chief of The Brandeis Hoot, Brandeis’ community newspaper, and worked for the International Center for Ethics, Justice, and Public Life.


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Crossing the Line: The Ninth Circuit’s Guidelines for Flirting at Work

Posted on by Patrick R. Kitchin
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Patrick KitchinAfter months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion.  Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.”  Everyone at work thought the situation was hilarious:  a widower turning down the explicit sexual advances of an attractive woman.  But Rudolpho Lamas and his lawyers are not laughing.

When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked.  And, does Title VII impose different standards on men and women in sexual harassment cases?  Finally, do gender stereotypes have a place in the jurisprudence of Title VII?

Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII.  (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.

Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.

It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act.  Under Title VII, sexual harassment is considered to be a form of sex discrimination.

A Title VII sex harassment claim can be based on two theories of liability:  (1) economic quid pro quo; or (2) hostile environment.

In a typical case of quid pro quo sexual harassment, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.”  Hensen v. City of Dundee 682 F.2d 897 (11th Cir. 1982). “Have sex with me,” says the supervisor, “and you’ll get that promotion.”

In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted.  “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.”  Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against:  discrimination based on sex.

This month’s Ninth Circuit case was based on the second of these two Title VII liability theories.  To maintain a gender-based, hostile environment case, a worker must show that:

(1) he or she was subjected to verbal or physical conduct of a sexual nature

(2) the conduct was unwelcome, and

(3) the conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991)

Element 1:  Conduct of a sexual nature

Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him.  She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”

The Court had no trouble finding that the conduct was sexual.  “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on.  Her proposition was for sex, not a cup of coffee together.”

Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.

Element 2:  Welcomeness

The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser.  What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome?  The short answer is, the same evidence a woman needs to present.

Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker.  Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations.  So, what did the Ninth Circuit think about this digression into cultural stereotypes?  Not much.

The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything.  “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”

“Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.”  Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary.  Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments.  Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”

While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well.  To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations.  “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”

Element 3:  Severe or Pervasive

Title VII is not a “general civility code” either.  It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Faragher v. Boca Raton, 524 US 775 (1998).

Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination.  In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.

Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII.  A sexual assault immediately creates an abusive working environment.

Less egregious conduct can provide grounds for a Title VII claim, as well, if:  (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.

Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however.  But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker?  What if this conduct was part of an attitude that permeated the workplace with gender bias?  If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.

Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit.  But taken together, they often do.  So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa.  The courts treat it as a classic inverse relationship.

Putting It All Together

By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings.   The female employee’s conduct obviously was sexual.  And Lamas made it clear that he wanted the conduct to stop.  The conduct was pervasive and had a serious negative impact on conditions at work.  Lamas’s job performance suffered.  When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality.  Lamas complained several times to his supervisors about the harassment, but nothing was done.

If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.

Guidelines for Flirting at Work?

In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment

People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.

Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII.  “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”

Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law?  Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.

Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country?  Not really.  But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.

About the Author: Patrick R. Kitchin is the founder of Kitchin Legal APC, a San Francisco, California employment law firm.  He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.


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Employee Rights Short Takes: Hostile Work Environment, GINA, FMLA And More

Posted on by Ellen Simon
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Here are a few Short Takes worth sharing:

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of  Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University’s Reuben Clark Law School, wrote an interesting article about the topic which you can read here. The piece appeared in the Spring 2010 issue  of the Clark Memorandum, a publication of BYU’s J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates  — including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

images: www.hivplusmag.com charityrisk.squarespace.com

*This post originally appeared in Employee Rights Post on May 24, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.


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Employee Rights Short Takes: Wage Discrimination, Race Discrimination, Sexual Harassment and More

Posted on by Ellen Simon
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Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog. For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,” which the district court gave “little weight,” corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift — during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West’s lawyer requested which the Sixth Circuit both addressed and confirmed.

images: www.hickmankytourism.com

www.reclaimdemocracy.org

*This post originally appeared in Employee Rights Post on May 12, 2010. Reprinted with permission.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.


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You’ve Come a Long Way, Baby? Maybe Not.

Posted on by Charlotte Fishman
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Is it legal to fire a front desk clerk for not being “pretty enough”? Not in Iowa. Last Monday, the Eighth Circuit Court of Appeals reversed a trial judge’s decision and ordered Lewis v. Heartland Inns of America to trial.

Brenna Lewis was a front desk clerk at Heartland Inns in Ankeny, Iowa. She was promoted to the day shift, sight unseen, after enthusiastic recommendation from previous managers. Once on the job, Lewis’ loose-fitting clothing and unisex appearance caused Director of Operations Barbara Cullinan to express reservations about whether she was a “good fit.”

Lewis wore short hair, no makeup and sported an “Ellen DeGeneres look.” She was “tomboyish,” friendly, and well-liked by customers. Cullinan preferred a pretty “Midwestern girl look” on the day shift. She fired the manager who refused to reassign Lewis and demanded that Lewis undergo a videotaped “second” interview to keep her job. A distraught Lewis objected to the second interview, questioning whether it was lawful to require one just because of her appearance. Three days later she was fired.

When Lewis sued Heartland for sex discrimination, the company countered that Lewis was terminated for “thwarting” the interview procedure and exhibiting “hostility” to Heartland’s policies. The trial judge dismissed the case. Lewis appealed. In January, a three judge panel ruled in Lewis’ favor. On March 8, the full court denied Heartland’s request for rehearing, and ordered the case back to jury trial.

In some ways Lewis’ victory is not surprising. Over twenty years ago, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the United States Supreme Court ruled in favor of Ann Hopkins, a hard-charging and aggressive manager denied partnership despite outperforming all other candidates in her year. Hopkins was told that future success at the firm would depend upon her learning to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

The Court held that unless Price Waterhouse could prove that it would have made the same decision without reference to gender stereotypes, Hopkins was entitled to prevail on her sex discrimination claim because “we are ‘beyond the day’ when an employer could evaluate employees by … insisting that they matched the stereotype associated with their group.”

But are we? Consider this: Had Heartland Inns turned Cullinan’s personal preference for pretty women into a formal job requirement, the case might well have gone the other way.

In 2006, the Ninth Circuit received a great deal of notoriety for its decision in Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006). The famously liberal court ruled not once, but twice in favor of Harrah’s casino, after it terminated bartender Darlene Jespersen for refusal to comply with its “personal best” appearance code. The code, which included both gender-neutral and gender-specific requirements, mandated “big hair” and a daily makeup regime for women.

Jespersen, a highly regarded 20-year employee, felt degraded by makeup. The business of a bartender is to mix drinks, assess sobriety, and maintain order. Jespersen argued that wearing makeup interfered with the deft personal touch and sense of authority she relied upon to perform those functions. Unimpressed, the Court held that her “personal preference” did not trump Harrah’s “personal best” grooming policy.

Employers, particularly in the service industry, adopt gender-specific appearance standards for competitive advantage, and defend them on grounds of customer preference. Fortunately, the law already imposes limits on this “business case” for discrimination. “Customer preference,” once a serious barrier to hiring minorities and women, was struck down long ago. “Competitive advantage,” the rationale for requiring stewardesses to parade around in hot pants, was rejected with the tart observation that the business of airlines is to fly passengers safely, not to sell sex.

Even if the required “look” is not overtly sexy, enforcing an idealized standard of feminine attractiveness increases the salience of gender over competence. This can undermine the authority of women whose jobs involve controlling the activities of others: police officers, construction supervisors and – yes — bartenders and flight attendants. While there may be rare situations in which idealized gender-specific appearance is a “bona fide occupational qualification,” the essence of most jobs is providing a service, not fulfilling a fantasy.

Yes, we have come a long way, but sadly, we are not “beyond the day” when employers can enforce gender stereotypes. It should not matter whether a stereotype-driven termination is the result of an individual supervisor’s preference or a company-wide appearance policy, but it does. This is wrong. Courts should know better than to give the green light to gender stereotypes “dressed up” as formal job requirements. If this trend is not reversed, and soon, the resulting effect on equal employment opportunity will definitely not be pretty.

Image: Pick UPAbout the Author: Charlotte Fishman is a San Francisco attorney, and Executive Director of Pick Up the Pace, a nonprofit organization whose mission is to identify and eliminate barriers to women’s advancement in the workplace.


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Outback To Pay 19 Million For Sex Discrimination Case

Posted on by Ellen Simon
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EEOC Settlement Shatters Glass Ceiling

The Equal Employment Opportunity Commission announced a whopping 19 million dollar settlement of a class action “glass ceiling” lawsuit against Outback Steakhouse last week.

The lawsuit involved a class of female employees who claimed that they were illegally denied:

  • equal opportunity for advancement
  • promotional opportunities to high level profit sharing management positions
  • favorable job assignments, particularly, kitchen management experience, which was required for employees to receive consideration for top restaurant management positions

Stuart J. Ishimaru, EEOC Acting Chairman had this to to say in conjunction with the announcement:

There are still too many glass ceilings left to shatter in the workplaces throughout  corporate America. …

Hopefully this major settlement will remind employers about the perils of perpetuating promotion practices that keep women from advancing at work.

Let’s hope so. It’s been almost 30 years since the Wall Street Journal popularized the term “glass ceiling” in an article describing the invisible barriers that women confront as they approach the top of corporate hierarchy.

The Federal Glass Ceiling Commission was created by the Civil Rights Act of 1991 and issued several reports between 1991 and 1996. The last report noted that among Fortune 500 companies:

  • 95 -97% of senior managers were men
  • 97% of male top executives were white
  • 95% of the three to five percent of the top managers who were women were white

I don’ t know how much better the data would look today but my bet would be that the difference wouldn’t be significant.  No doubt  ladies — after all of these years, we still have a long way to go.

I have talked to hundreds of women through the years who confront these issues at work each day. Many just don’t want to rock the boat to fight for the promotions they deserve — and that’s understandable.

That’s why cases like this one are so important. Three cheers for the courageous women who brought this class action lawsuit and the EEOC’s vigorous pursuit of equal opportunity for women.

image: pulse.ncpolicywatch.org/wp-content/uploads/feminis_difference_lg.jpg

*This article originally appeared in Employee Rights Post on January 9, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome


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