Sexual Discrimination in the Workplace

Congress passed Title VII of the Civil Rights Act of 1964 (“Act”) as a way for individuals to be made whole as a result of discrimination in the work place.  Originally, the Civil Rights Act was intended to cover race, color, religion and national origin as protected classes.  However, two days before the act was voted on, the House of Representative’s added the category of “sex.”  Earlier, the same congress had passed the Equal Pay Act in order to “to remedy what was perceived to be a serious and endemic problem of [sex–based] employment discrimination in private industry.”  Ann K. Wooster, Title VII  Sex  Discrimination in Employment – Supreme Court Cases, 170 A.L.R. Fed. 219.  Although there may have been some overlap between these two statutes, neither House undertook to formally analyze this relationship. Id.  In 1972, amendments to the act radically changed the way it was enforced by adding provisions which allowed the provisions of the Civil Rights Act to be enforced in both private and government actions.  As the history of the Act progressed, Congress responded to Supreme Court decisions by adding provisions to the Act.  For instance, in response to the landmark case Price Waterhouse v. Hopkins, which held that “[the Act was] meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations,” Congress amended the Act to include standards for “mixed motive” cases.   Price Waterhouse v. Hopkins, 490 U.S. 228, 241. 

The process of making a claim for sex discrimination under the Act is sophisticated and involves a shifting of burdens from the plaintiff to the defendant, and back to the plaintiff once more.  Initially, the plaintiff outlines a prima facie case, by showing: (1) that he/she belongs to a protected class, (2) that he/she applied and was qualified for a job for which the employer was seeking applicants, (3) despite his/her qualifications, he/she was rejected and after his rejection, the position remained open and (4) the employer continued to seek applicants from persons of plaintiff’s qualifications.  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802.  The burden of proof for the prima facie case for sex discrimination is “by a preponderance of the evidence.”  Next, the burden shifts to the defendant to prove a “legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell at 802.  At this stage, the employer needs to raise a genuine issue of material fact, the same as the burden for summary judgment.  It important to note that the burden is for the production of evidence, not the burden of proof, which always lies with the plaintiff.  Finally,  the plaintiff is afforded the opportunity to show that the employers proffered reasons for rejecting the employee were simply a pretext to discrimination.  Meaning that, although the employer can provide a reason for having discharged the employee, the employee has an opportunity to show that the reason provided is not the real reason. 

The Civil Rights Act Act also provides an opportunity to recover for “disparate impact” cases where the  “plaintiff need only show that an employer’s facially neutral standards operate in a significantly discriminatory pattern.”    The courts have held that employers have disparately impacted females in the following cases: where facially neutral height and weight requirements had a disparate impact on the basis of sex and denying seniority rights to females during maternity leave, although seemingly neutral, was considered discrimination due to sex.   The following situations may be actionable under the Act, by utilizing a “disparate treatment” analysis: failure to hire, discrepancies between male and female pension plans, refusal to credit females with seniority, termination and wage differentials between male and female employees.   

The harm suffered from “sexual harassment” is also actionable under the Act.  The court in Meritor held that “[s]exual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67. 

The Act also provides a framework for establishing discrimination on the basis of “retaliation” when there has been discriminatory reassignment of duties, employees spoke out during internal investigations,  and third party retaliation for individuals who have not personally engaged in a protected activity.  Id.

The Act provided new avenues for recovery, and ultimately moves us towards a more just and equal workplace.  In the future, the Act will continue to evolve in conjunction with new obstacles, or opportunities, to provide equality in the work place.  For instance, the status of transsexuals as members of a protected class is still under debate. 

If you have been subject to sexual discrimination in the workplace, please contact our Washington DC employment lawyers and discrimination lawyers to schedule a consultation at the law firm of Klaproth Law PLLC.  We strive to bring justice and compensation to our employment law clients.

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