Sexual Harassment and Discrimination

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What Is Discrimination Based on Sex?

Sex discrimination occurs when an employer or an agent of the employer discriminates against an employee based on his or her sex.

Also called gender discrimination, sex discrimination is actionable under Title VII of the Civil Rights Act of 1964. Three different theories of sexual discrimination exist:

  1. Sexual harassment
  2. Disparate treatment
  3. Disparate impact

What Is Sexual Harassment?

Sexual harassment is unwelcome conduct of a sexual nature that occurs in the workplace. There are two forms of sexual harassment: quid pro quo sexual harassment and hostile work environment sexual harassment.

Quid pro quo sexual harassment occurs when either submitting to or rejecting the unwelcome conduct becomes the basis for employment decisions, such as terminating, promoting, or demoting the victim. To prevail on a quid pro quo sexual harassment claim, the plaintiff employee must establish:

  1. He or she belongs to a protected group.
  2. The conduct was unwelcome or not consented to.
  3. The harassment was sexual in nature.
  4. The victim’s reaction, whether submitting to or rejecting, affected a tangible aspect of his or her employment.
  5. The employer is responsible for the harasser’s actions.

Hostile work environment sexual harassment occurs when the unwelcome conduct is so disruptive that it creates an intimidating or hostile work environment that affects an employee’s ability to perform. To prevail on a hostile work environment sexual harassment claim, the plaintiff employee must establish:

  1. He or she belongs to a protected group.
  2. He or she was the subject of the unwelcome conduct.
  3. The harassment was sexual in nature.
  4. The harassment was so severe that it unreasonably interfered with the employee’s work performance or created a hostile work environment.
  5. The employer is responsible for the harasser’s actions.

What Is Disparate Treatment Sex Discrimination?

Disparate treatment sex discrimination occurs when an employer intentionally and overtly treats one individual or group of individuals differently from another, solely based on gender. For instance, requiring that all females take and pass a grammar exam (but not males) in order to be considered for a promotion is intentional, overt disparate treatment sex discrimination.

To prove disparate treatment sex discrimination, the plaintiff employee must prove that the employer intentionally discriminated against a certain gender or individual based on his/her gender.

What Is Disparate Impact Sex Discrimination?

Not to be confused with disparate treatment, disparate impact sex discrimination does not involve intentional discrimination. Rather, it involves employer policies that appear gender-neutral on their face. However, the manner in which they’re applied disproportionately affects only one gender class.

This type of claim is commonly raised by female employees who argue that while a company policy appears neutral on its face, it disproportionately negatively affects the women of the company, such as through denying promotions to women based on their inability to meet certain criteria.

When a plaintiff employee has proven that the objective policy in fact has a disproportionate negative impact on the individual based on sex, the defendant employer must then prove the policy is a business necessity

Do I Need a Sex Discrimination Attorney?

Whether you are the victim of sexual harassment, disparate treatment sex discrimination, or disparate impact sex discrimination, you will need an employment lawyer to help you pursue your claims effectively. Title VII is extremely difficult to navigate and many states have local laws that govern sex discrimination claims. A lawyer can investigate your potential claims, help you file appropriate paperwork with federal and local agencies, and advise you on your various legal options.

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Last Modified: 04-15-2015 12:34 PM PDT

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