Sex Discrimination and Employment Law in the #MeToo Era
©2020 Published in GPSolo, Vol. 37,No. 2, March/April 2020, by the American Bar Association.Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system withoutthe express written consent of the American BarAssociation or the copyright holder.
The #MeToo era initiated what has proven to be an ongoing public dialogue about sexual harassment and violence, particularly their effects in the workplace. This dialogue has resulted in not just greater awareness of the problem, but an actual increase in workers objecting to sexual harassment and pursuing their legal claims if their employers do not remedy the problem. For example, the first year of the #MeToo era resulted in an increase of more than 12 percent in sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC), the law enforcement agency with jurisdiction over investigating such claims.
Over the last two years, however, the dialogue has expanded, reinvigorating the pursuit for greater gender equality in the workplace. Pay equity, the glass ceiling, pregnancy discrimination, protections for LGBT workers— we are seeing movement on each of these issues, from increased media attention, to proposed federal legislation, to the passage of new state and local protections.The #MeToo era initiated what has proven to be an ongoing public dialogue about sexual harassment and violence, particularly their effects in the workplace. This dialogue has resulted in not just greater awareness of the problem, but an actual increase in workers objecting to sexual harassment and pursuing their legal claims if their employers do not remedy the problem. For example, the first year of the #MeToo era resulted in an increase of more than 12 percent in sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC), the law enforcement agency with jurisdiction over investigating such claims.
With this increased attention to gender equality in the workplace, more workers are seeking to understand their rights and potential claims. To assess whether a potential client has an employment claim for discrimination based on sex, it is critical to have a basic understanding of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace.
TITLE VII’S PROHIBITION OF SEX DISCRIMINATION
The passage of Title VII of the Civil Rights Act of 1964 created the first general federal prohibition against sex discrimination in the workplace. The scope of that federal protection continues to evolve—from Congress passing the Pregnancy Discrimination Act of 1978 to expand the definition of sex to cover pregnancy and childbirth, to courts recognizing sexual harassment claims, to the current legal debate as to whether the prohibition covers discrimination based on sexual orientation and gender conformity.
As with many statutory provisions, Title VII’s prohibition on sex discrimination appears straightforward: “It shall be an unlawful employment practice for an employer to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex[.]” 42 U.S.C. § 2000e-2(a)(1). Yet, this statutory provision has created a complex substantive and procedural area of law.
WHOM DOES TITLE VII PROTECT FROM SEX DISCRIMINATION?
Title VII only protects workers who are applying to be, are, or have been employees. It does not protect workers who are independent contractors, unless they are, in fact, legally employees but have been misclassified by their employer. With the expansion of the gig economy, the number of workers who lack protections from sex discrimination is growing, although some state and local laws are starting to fill this coverage gap.
Provided they are employees, both men and women are protected by Title VII from discrimination based on their sex. Until relatively recently, however, courts did not recognize discrimination against homosexual, bisexual, transgender, or gender nonconforming employees as a form of sex discrimination. Over the last decade or so, following the lead of the EEOC, some courts shifted to interpreting sex discrimination more broadly to cover discrimination based on sexual orientation and gender conformity. This issue is currently before the Supreme Court, so there may be some clarity soon. This is an area in which some state and local laws provide broader coverage, with many expressly prohibiting discrimination based on sexual orientation and gender conformity.
Title VII also protects employees from intersectional discrimination, which is discrimination that is based on multiple protected categories, for example, discrimination against women of color, or non-Christian women, or non-American-born women. Coverage against intersectional discrimination is particularly critical because women of color face heightened levels of discrimination.
WHAT CONSTITUTES DISCRIMINATION UNDER TITLE VII?
Title VII protects against an employer taking action against an employee based on sex, whether it is intentional (disparate treatment) or based on a neutral policy that negatively affects one sex over the other (disparate impact).
While Title VII protects against disparate treatment, not all unequal treatment at work constitutes unlawful discrimination. Courts require plaintiffs to show that the treatment affected their “compensation, terms, conditions, or privileges of employment.” If such treatment is a specific act that affects the terms and conditions of employment, it is called an adverse action.
Generally speaking, adverse actions are specific acts that affect an employee economically—for example, failure to hire, denial of promotion, pay cut, unequal pay, or termination. There is some disagreement around the margins of this issue, such as whether a poor performance review is an adverse action. For most employees, however, such disagreement is academic because it usually does not make economic and career sense to litigate an employment claim that does not have any economic damages.
Provided there is an adverse action, a plaintiff then needs to show that the employer was motivated to take that action by the plaintiff’s sex.
Hostile work environment.
Title VII also protects against discriminatory treatment that is a series of acts that individually may not rise to the level of an adverse action, but together are sufficiently harassing to change the terms and conditions of work. This type of claim is called a “hostile work environment” claim but is commonly referred to as sexual harassment. Even though such claims are typically referred to as sexual harassment, the harassment need not be sexual in nature. Gender-based “put-downs” are as actionable as sexual “come-ons.” In an acknowledgment of the fact that the workplace is the birthplace of many romantic relationships—some welcomed, some not—to successfully bring a sexual harassment claim, plaintiffs must show that the treatment is unwelcome. Typical evidence to establish that plaintiffs did not welcome the treatment is that they turned down sexual overtures, they refused to participate in ribald conversations, or they suffered emotional distress from the conduct at issue.
Showing that harassment is sufficiently severe or pervasive to be actionable discrimination is often the most challenging hurdle for plaintiffs. Often courts find misconduct that would be shocking to the working public to be insufficiently severe or pervasive. This standard may evolve as the #MeToo era changes society’s willingness to countenance sexual mistreatment in the workplace. In the meantime, some local jurisdictions have eschewed the federal standard altogether, instead assessing the severity or pervasiveness of the harassment when determining the appropriate level of damages to award.
The final element of a hostile work environment claim is to show that the employer is liable for the harassing conduct. If the employer has taken an adverse action as part of the harassment, such as demoting or terminating the employee, it is liable for the harassing conduct regardless of whether the employee reported it. Similarly, if the harasser was sufficiently senior in the organization to be considered a proxy for the employer, the employer is liable. If there was no adverse action, but the harasser was a supervisor, the employer can avoid liability by showing that it took reasonable action to prevent and correct the harassment, and the employee failed to take reasonable action to prevent and report the harassment. If the harasser was a co-worker, then it is the employee who has to show that the employer knew or should have known about the harassment and failed to take reasonable action to prevent and correct it.
An employee’s failure to report is often the stumbling block in an otherwise very strong hostile work environment case. As we know from the #MeToo stories over the last two years, it is all too common for survivors of sexual harassment and violence to not report the mistreatment both because of psychological effects of the misconduct and because they understand the prevalence of retaliation. While some courts have become more open to arguments that plaintiffs reasonably did not report the harassment because of their fear of retaliation, it is essential that the fear be based on more than just a generalized belief that those who report sexual harassment suffer from retaliation. Evidence of the harasser threatening retaliation or evidence that the plaintiff knew of others who had reported and suffered retaliation is critical.
Disparate impact discrimination occurs when a seemingly neutral policy has a disproportionately negative effect on members of one sex as compared to members of the other sex. If an employer can show that the policy is job-related and justified by business necessity, however, it can avoid liability. An example of disparate impact discrimination is a hiring criterion that requires a candidate to lift a weight heavy enough that the criterion tends to disproportionately screen out women and the criterion is not justified by any business necessity.
WHAT ARE THE PROTECTIONS FROM RETALIATION?
Title VII contains specific protections from retaliation that include protection for “opposing” discrimination and for “participating” in a Title VII proceeding whether it be before the EEOC or in court. Courts have interpreted Title VII’s retaliation protections expansively, recognizing that a broad scope of protection is necessary if the anti-discrimination statutory framework is to succeed. This broader scope, along with the seemingly greater willingness of judges and fact finders to believe in retaliatory versus discriminatory animus, has meant that plaintiffs are frequently more successful in proving their retaliation claims than their sex discrimination claims.
There are material differences between retaliation and sex discrimination claims that should be kept in mind when evaluating a plaintiff’s claim. The causation standard is higher for a retaliation claim. A plaintiff must prove that the retaliation is a “but-for” cause of the adverse action, whereas a plaintiff in a discrimination case need only show that sex was a “motivating factor” for an adverse action.
While the causation standard may be higher, the adverse action standard in a retaliation case is less demanding than in a sex discrimination case. To establish a retaliatory adverse action, plaintiffs need only show that the act, such as a reassignment to more arduous duties, would likely dissuade a reasonable worker from engaging in protected activity.
WHAT REMEDIES ARE AVAILABLE?
Under Title VII, plaintiffs can recover back pay for lost compensation and reinstatement or front pay if reinstatement is determined to be impractical. Title VII, however, limits non-economic damages, including damages for emotional distress and punitive damages. For the largest employers (over 500 employees), these damages are capped at $300,000 total, and for the smallest (15 to 100 employees), these damages are capped at only $50,000 total. Title VII also provides for recovery of attorneys’ fees and costs.
In cases of sexually hostile work environment that do not have associated economic damages or for plaintiffs with low economic damages, the damages caps can serve as a disincentive for survivors to litigate their claims because the limited recovery is insufficient for them to engage in a litigation process that further traumatizes them. Under many state and local anti-discrimination laws, however, damages are uncapped or significantly higher, which can shift this balance and encourage plaintiffs to enforce their rights.
HOW TO BRING A TITLE VII CLAIM
There are specific steps that are required to bring a Title VII claim, and each one has a statute of limitations associated with it. This means there are many chances for missteps that can hurt an otherwise viable claim.
Title VII requires that plaintiffs administratively exhaust their claims before they can file in court. For private-sector employees, plaintiffs in states or localities that do not have an agreement with the EEOC—known as a “work sharing agreement”—have 180 days from the adverse action, or in the case of a hostile work environment, from the last act of harassment, to file an EEOC charge. To complicate the matter, plaintiffs in states or localities that do have work sharing agreements with the EEOC have 300 days from the adverse action to file a charge. Complicating matters further, there are different administrative requirements and deadlines for federal-sector employees. The EEOC’s website (https://www.eeoc.gov) is an excellent resource for determining which deadline applies in a specific case.
Once a charge is filed, the EEOC or the local or state version of the EEOC, called a Fair Employment Practice Agency, will often first seek to facilitate resolution of the charge through agency-provided mediation. If the parties do not agree to the mediation or the mediation fails, the agency will begin to investigate the charge.
At the end of an investigation, the EEOC will find either that there is reasonable cause to believe discrimination has occurred or that the investigation did not establish a violation of law. When there is a Reasonable Cause finding, the EEOC will engage in its conciliation process to attempt to bring the employer into compliance and resolve the charge. If that fails, the EEOC decides whether to sue the employer—which it does in only a small number of cases. If the EEOC does not sue, then the complainant can move forward with suing in court. When there is a No Cause finding, then the EEOC issues a Right to Sue letter, and the complainant has 90 days from the date of receipt to file a claim in court.
Because EEOC investigations can take years and Reasonable Cause findings are rare (usually around 3.5 percent of the total charges in a year), complainants can end the administrative process voluntarily 180 days after they filed a charge. To do so, the complainant requests a Right to Sue letter. Again, once the complainant has received the Right to Sue letter, the complainant has 90 days from the date of receipt to file a complaint in court.
BEYOND TITLE VII’S PROTECTIONS
Other federal laws also create protections that should be considered when evaluating whether a potential client has suffered actionable sex discrimination. The federal Equal Pay Act prohibits wage disparities based on sex regardless of the employer’s intent to discriminate. The federal Family and Medical Leave Act (FMLA) creates the right for eligible employees to take leave to care for themselves and their family. Given that in American society women handle a disproportionate amount of the caregiving responsibilities, FMLA protections are critical to workplace equality for women. Finally, as referenced above, many state and local jurisdictions have laws that have broader protections and protect more workers from sex discrimination, so they should not be ignored.
Seeking legal advice about perceived gender discrimination is frightening for most employees. They battle between the need to vindicate their rights and their fear of harming their careers, their mental and physical health, and their families. As attorneys, we are in a position to educate them about their legal protections and help them evaluate whether they have strong enough claims to take on the risk of legal action. As the #MeToo movement has shown us, however, this legal knowledge is not enough. We must couple it with empathy and a willingness to believe them and fight on their behalf.