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2. In California Federal Savings and Loan v. Guerra, the Supreme Court upheld the law,
relying on two reasons: first, the Pregnancy Discrimination Act only establishes a minimum
floor of protection for pregnant employees; and second, the California law did not prevent
THE WORKING LAW
A Growing Number of Cities and States Mandate Paid Family Leave
In 2004, the state of California became the first state to provide for temporary paid family leave through
the state’s disability insurance program.
VI. Sexual Harassment*
A. Introduction
1. Courts are now clear that sexual harassment is gender discrimination prohibited by Title VII.
2. The EEOC has issued guidelines defining sexual harassment and declaring that sexual
harassment constitutes gender discrimination in violation of Title VII.
*Sexual harassment is the unwelcome sexual advances, requests for sexual favors, or other verbal or
3. The EEOC Guidelines and courts recognize two categories of sexual harassment: quid pro
quo harassment and hostile work environment harassment.
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EEOC GUIDELINES ON SEXUAL HARASSMENT
Section 1604.11 Sexual Harassment
Harassment on the basis of sex is a violation of § 703 of Title VII.
An employer is responsible for its acts and those of its agents and supervisory employees with respect to
sexual harassment regardless of whether the specific acts complained of were authorized or even
forbidden by the employer and regardless of whether the employer knew or should have known of the
behavior.
An employer is responsible for acts of sexual harassment in the workplace where the employer knows or
should have known of the conduct, unless it can show that it took immediate and appropriate action.
B. Quid Pro Quo Harassment
1. To establish a case of quid pro quo harassment, a plaintiff must show five things:
a) She or he belongs to a protected group
2. The essence of quid pro quo harassment is that the employee’s submission to such conduct is
made either explicitly or implicitly a term or condition of an individual’s employment or that
C. Hostile Work Environment Harassment
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CASE 7.6 HARRIS V. FORKLIFT SYSTEMS, INC.
510 U.S. 17 (1993)
Background: Harris worked at Forklift Systems. The President of Forklift, Hardy, often insulted Harris
because of her gender and made her the target of unwanted sexual innuendos. He made comments such
as “You’re a woman, what do you know,” and “We need a man as the rental manager.” He also called
her a dumbass woman. In front of others, Hardy suggested Harris and he go to the Holiday Inn to
negotiate her salary. Hardy also asked female employees to get coins out of his front pocket and would
throw objects on the floor and tell female employees to pick them up. He made sexual innuendos about
female employees’ clothing. Harris confronted him and he promised to stop in exchange for her staying
on. She did, but then a month later Hardy, in response to a deal Harris had arranged with a customer,
stated “What did you do, promise the guy some sex Saturday night?” She then quit and sued under Title
VII accusing Hardy of creating an abusive work environment for her because of her gender. The trial
court ruled against Harris and the appellate court confirmed.
Issue: Must conduct, to be actionable as “abusive work environment” harassment, “seriously affect an
employee’s psychological well–being” or lead the plaintiff to “suffer injury”?
Decision: No. The phrase ‘terms, conditions, or privileges of employment’ in Title VII, evinces a
ANSWERS TO CASE QUESTIONS
1. Harris was not directly affected economically by the harassment to which she was subjected. She was
2. The Supreme Court held that the harassment must be such that it would reasonably be perceived, and is
3. The standard under Title VII for when harassment becomes severe enough to create a hostile
environment is objective⎯would a reasonable person find the conduct offensive, abusive or creating a
hostile work environment, and did the plaintiff find it so?
2. Reasonable Person or Reasonable Victim?
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a) Most courts have used a “reasonable person” standard to determine whether the
challenged conduct is sufficiently severe and hostile.
D. Employer Liability for Sexual Harassment
1. Introduction
a) The EEOC Guidelines state that employers are liable for sexual harassment by
supervisory or managerial employees and may also be liable for harassment by co–
workers or even nonemployees under certain circumstances.
2. Agency Relationships
a) Supervisors or managerial employees, acting in the course of their employment, are
3. Employer Liability for Supervisors
a) The courts have consistently held an employer liable for quid pro quo sexual harassment
4. Employer Liability for Co-Workers and Nonemployees
a) For both quid pro quo harassment and hostile environment harassment by non–
supervisory or non-managerial employees, an employer will be liable if it knew of, or
should have known of, the harassing conduct and failed to take reasonable steps to stop it.
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5. Individual Liability
a) Individual employees are not liable for damages under Title VII; this means that the
employee doing the harassing will not be held personally liable for damages under Title
E. Employer Responses to Sexual Harassment Claims
1. Prevention
a) The sexual harassment policy should define sexual harassment and give practical,
concrete examples of such conduct. The policy must also make it very clear that such
conduct by anyone in the organization will not be tolerated, and it should specify the
2. Defenses
a) Conduct must be unwelcome and sexual in nature and must be either quid pro quo or
serious enough to create a hostile working environment.
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3. Unwelcome
a) In Meritor, the Supreme Court held that as long as the victim indicates that the conduct is
F. Provocation
1. The issue of provocation goes to whether the conduct was unwelcome: If the victim has
encouraged the allegedly harassing conduct, is it really unwelcome?
G. Conduct of a Sexual Nature
1. In order to be sexual harassment, the conduct complained of must be based on the employee’s
sex.
2. Same-Sex Harassment
H. Remedies for Sexual Harassment
1. Remedies include injunctions, lost wages and benefits, compensatory and punitive damages
for intentional conduct, and legal fees and reinstatement.
2. Employment-related damages, such as back pay, benefits, seniority, and so on, are
recoverable in their entirety.
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6. Public employees who engage in sexual harassment may be subject to suits for damages
under 42 U.S.C. §1983, which allows civil suits for damages against persons who act, under
the color of law, to deprive others of legally protected rights.
ETHICAL DILEMMA
Your office cubicle is next to that of Mona Leslie, a newly hired female employee in your department.
Her male supervisor seems to be devoting a lot of attention to her, and drops by her cubicle many times a
QUESTION:
Although the employee has no legal obligation to report the conduct, it is in the best interests of the
parties involved that the employee reports the supervisor’s conduct.
VII. Sexual Orientation, Sexual Preference, and Sexual Identity Discrimination
A. Title VII and Other EEO Legislation
CASE 7.7 SMITH V. CITY OF SALEM, OHIO
378 F.3d 566 (6th Circuit, 2004)
Facts: Smith worked for the Salem Fire Department.
Issue: Has Smith established a claim of sex discrimination because of sex stereotyping, under the
Supreme Court decision in Price Waterhouse?
Decision: The Supreme Court decision in Price Waterhouse held that Title VII protected a woman who
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B. State EEO Legislation
1. A number of state EEO laws prohibit discrimination based on sexual preference or sexual
orientation.
C. Constitutional Protection
1. Public employers who discriminate on the basis of homosexuality are subject to the equal
2. However, the courts have generally allowed public employers to refuse to hire homosexuals
3. A number of cases dealing with discrimination against homosexuals have involved the armed
services’ refusal to admit homosexuals. In several decisions, the courts have upheld this
4. The “don’t ask, don’t tell” policy remained in effect until September 20, 2011; the policy was
repealed pursuant to the Don’t Ask Don’t Tell Repeal Act of 2010.
5. In Lawrence v. Texas, the Court declared unconstitutional state laws making it a crime for
government discrimination against homosexuals.
THE WORKING LAW
Rape and Sexual Assault: A Call to Action
Nearly 1 in 5 women—or almost 22 million—have been raped in their lifetimes.
Twenty years ago, then-Senator Joe Biden authored the Violence Against Women Act (VAWA) to bring
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 7
ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. A BFOQ cannot be supported by customer preference, so that a restaurant hiring only male waiters
2. Title VII does not require that an employee be given paid pregnancy leave; it requires only that the
pregnant employee be treated the same as other employees on temporary leave. The Pregnancy
3. An employer is liable for sexual harassment by a supervisor when the supervisor has acted with
actual or apparent authorization⎯has the employer acquiesced, accepted, ratified, condoned, or
authorized the supervisor’s behavior? If the employer knew or should have known about the
4. According to the Gunther case, Title VII can be used to attack sex-based pay differentials for jobs
that are not equivalent if the plaintiffs can show that the pay differentials are due to intentional sex
5. Not all employees are entitled to leave under the Family and Medical Leave Act. Employees are
entitled to leave under the FMLA if they meet the following requirements: their employer has 50
CASE PROBLEMS
6. The Supreme Court held that even if the invitation to become a partner is not an employment
decision, the consideration or eligibility for partnership is a condition of employment, or a benefit of
employment. As such, the condition or benefit of employment must be available on a non-
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 7
7. The Court of Appeals held that the Nurses‘ complaint could state a claim if they could show that the
refusal to implement the recommendations of the pay study was due to intentional sex
8. The court held that the high school was not guilty of sex discrimination. The poor evaluation was a
9. The Court of Appeals, Easterbrook, Circuit Judge, held that employer did not violate the FMLA
by discharging employee with spotty attendance record after she called in sick for two days, even
10. The plaintiff did not have a claim under Title VII, which does not recognize sexual preference or
orientation as a protected category. But, because the employer was a public entity, i.e., a state
11. Yes. The court held that the college had discriminated against Thompkins because of her sex. The
college could not evade the effects of treating male faculty differently by labeling them as part–
12. No. The court held that Title VII did not apply to this case⎯Title VII does not protect against
13. No. The court held that, at best, Southwest’s evidence demonstrated that its customers preferred
female attendants and clerks, and customer preference was not sufficient to support a business
14. Vorman could argue that NASA, by refusing to hire him based on its perception of his sexual
preference, violated his right to equal protection under the Fifth Amendment of the U.S. Constitution.
As several courts have noted with challenges to the military’s ban on gays, the government must
demonstrate that the individual has engaged in homosexual conduct as the basis for rejection;
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 7
suspicion or perception that the individual is gay is not a sufficient justification for the government
HYPOTHETICAL SCENARIOS
15. Yes. Lee’s employer discriminated against Lee because she has small children. This is frequently
called “sex plus” discrimination. The employer has not demonstrated that being a male with no
16. Title VII prohibition on sexual harassment does not include harassment based on sexual
orientation or sexual preference according to Hammer. However, there are several other remedies
17. Carter is entitled to such leave. This is because the amended FMLA allows employees to take
“military caregiver leave” to care for a child or family member who is a current member of the
18. Student’s answers may vary on this question. Based upon the facts given, it seems that Morris’
comments are a mere offensive utterance, which Title VII does not protect against. When the
workplace is permeated with “discriminatory intimidations, ridicule, and insult,” that is
19. Student’s answers may vary on this question. The Equal Pay Act of 1963 requires that men and
women performing substantially equal work be paid equally. In this case, the employer can argue