Lawsuits based on discrimination due to gender are well established. Much of the current litigation on this issue is based on same-sex harassment and stems from the 1998 U.S. Supreme Court case, Oncale v. Sundowner Offshore Services. In the case, the U. S. Supreme Court held that although Title VII does not include homosexuality as a protected category, it does protect members of each sex from being discriminated against or bullied for not fitting into an expected gender role or stereotype.
The case arose when a male employee brought a lawsuit for violation of his Title VII rights against his former employer, a male supervisor, and two male coworkers, alleging that he had been sexually harassed. Specifically, the plaintiff alleged that he had been sexually assaulted by his supervisor and coworkers and threatened with rape.
Although the plaintiff had reported numerous incidents of harassment to supervisory personnel, no remedial action had been taken. The Supreme Court, in a unanimous opinion, held that sex discrimination consisting of same-sex sexual harassment is prohibited. The Court cautioned that careful consideration of the social context in which particular behavior occurs is always required before determining whether same-sex harassment has occurred. The same “severe and pervasive” standard should apply as in traditional hostile work environment cases, it said.
Prior to the Oncale decision, the federal appeals courts disagreed as to whether a plaintiff must show the harasser was homosexual. However, the Oncale decision cleared the way for same-sex harassment actions regardless of the harasser’s sexual orientation.
Gender-nonconformity. In the years since Oncale, employees have been advancing a new theory when bringing lawsuits—that of “gender nonconformity bias.” Essentially, employees have argued that they were subjected to bias because their behavior or appearance did not conform to stereotypes for their biological sex.
In 2001, the U.S. Court of Appeals for the Ninth Circuit held that harassment based on the perception that an employee is effeminate is a form of gender bias and thus discriminatory. In the case, Nichols v. Azteca Restaurant Enterprises, Inc. (U.S. Court of Appeals for the Ninth Circuit, 2001), the plaintiff was a restaurant host and server and who was subjected to a campaign of bullying, including insults, name-calling, and vulgarities. The court found that both an objective and subjective hostile work environment has been created, and that the plaintiff could pursue a harassment claim.
Similarly, in Smith v. City of Salem (U.S. Court of Appeals for the Sixth Circuit, 2004), the federal appeals court ruled that a transsexual firefighter could sue his employer and the city after he was frequently tormented by coworkers, who told him his feminine appearance and mannerisms did not conform to the stereotypes of how a man should look and behave. The court found that the harassment was in fact discriminatory, had resulted in the adverse employment actions taken against the plaintiff, and were the basis for a lawsuit.
>Although the applicable federal law, Title VII, does not prohibit harassment or discrimination based on a worker’s sexual orientation, an increasing number of state and local jurisdictions do. Employers must be aware of all applicable laws in the jurisdictions where they do business to ensure that they are in compliance when making employment decisions and responding to claims of harassment.
Since 2000, claims alleging religious discrimination have risen by 30 percent. These include claims stemming from workplace proselytizing.
For example, in Colorado, a federal district court jury awarded two plaintiffs $750,000 in mostly punitive damages (later reduced by the federal statutory caps) because the employer, an evangelical Catholic, required employees to sign a company prayer (Millazzo v. Universal Traffic Service, Inc., U.S. District Court for the District of Colorado, 2003).
In the case, the two employees, a Lutheran and an atheist, signed the prayer under protest, and subsequently sued the company for a religiously hostile environment, disparate treatment, and constructive discharge. In addition to damages, the employer also had to pay the plaintiffs’ attorneys’ fees of nearly $150,000, plus $11,000 in costs.
Similarly, in Louisiana, a state court jury awarded $40,000 to a Baptist woman for religious discrimination when company management expected her to attend the Apostolic Tabernacle to which they belonged (Robinson v. Healthworks Int’l LLC, Louisiana Court of Appeals, 2003). While she was attending the service in a short-sleeved dress, the woman was singled out by the tabernacle preacher who labeled her a “Jezebel.” Management also played religious tapes at the work site, and employees told her there was an evil spirit in the factory to be cast out, leading her to believe it was she who would be the target. The appeals court confirmed the award.
In addition to charges of discrimination, companies often face charges of retaliation for how they subsequently treat the person who filed the discrimination or harassment complaint.
Retaliation charges have climbed steadily over the past decade: they accounted for nearly 23,000 of the 79,500 charges filed in 2004. Retaliation claims can be part of a discrimination suit that includes other charges, such as a person who sues his company for age discrimination and is then fired for filing the claim.
They can also stand alone. For example, in one case (EEOC v. Bank of Oklahoma, U.S. District Court for the Northern District of Oklahoma, 2005), a woman was fired without explanation after testifying against the company in the sexual harassment lawsuit of a colleague. She filed a retaliation lawsuit, and the company was required to pay her $159,000 in damages.
What Companies Can Do
The definition of employment discrimination will continue to evolve as courts interpret the law and establish guidance in this complex area. In the meantime, companies should make clear their commitment to preventing discrimination and harassment and to treating all employees respectfully. They should make sure that this commitment is formalized through written policies prohibiting discrimination. Management should periodically evaluate and review these policies and procedures to ensure that they are effective.
There should also be an awareness campaign to encourage victims and witnesses to come forward. In addition, companies must have confidential complaint mechanisms that make it easy for victims or witnesses to promptly report harassment. Once it is reported, the focus should be on taking action to end the harassment and to correct its effects on the victimized employee.
Effective policies can make a difference in the courtroom. For example, a large computer company successfully defended itself in a lawsuit charging discriminatory practices in Peterson v. Hewlett-Packard Co. (U.S. Court of Appeals for the Ninth Circuit, 2004). The company had a diversity program emphasizing respect for all employees regardless of their differences. Management put up posters to promote the program, one of which was placed next to the workstation of an employee who believed that his faith compelled him to confront and denounce homosexuality. He, in turn, posted visible antigay messages in his workstation. Management demanded that the employee remove the messages, and offered him several less offensive options to express his views.
The employee refused to compromise and was terminated. The company had gone so far as to let him post his beliefs on a bumper sticker on his car in the company lot. So when the employee sued for religious discrimination, the court ruled that the company had provided the employee with ample outlets to air his religious beliefs without interfering with its diversity program.
As these cases show, companies must make clear their policies towards the unlawfulness and inappropriateness of bullying, taunting, ridiculing, and other forms of harassment or discriminatory behavior, and the consequences involved. Companies can thereby reduce the chances that they will be hit with charges of discrimination.
Margaret Bryant, Esq., is the editor-in-chief for Jackson Lewis Communications in the firm’s Pittsburgh, Pennsylvania office.