Pregnancy Discrimination
• Lactation
• Affordable Care Act requires “reasonable break
time” and a place other than a restroom
“shielded from view and free from intrusion,” 29
U.S.C. Sec. 207(r)
▫ Applies for one year following child’s birth
▫ Employers with less than 50 employees may be
exempt if this requirement imposes an undue
hardship
Family And Medical Leave Act Of 1993,
29 U.S.C. Sec. 2601
• Mandates up to 12 weeks of unpaid leave for
various purposes, including birth or adoption of
a child
• Applies to employers with 50 or more employees
• Eligible employees: worked for the employer (1)
for at least 12 months, (2) for at least 1,250
hours in the year preceding the leave, (3) at a
worksite where employer employs at least 50
employees within a 75-mile radius. See 29
C.F.R. Sec. 825.110
Sex Discrimination—Appearance And
Grooming Codes
• Jespersen v. Harrah’s (9th Cir. 2006) (en banc)
• The “Personal Best” program; plaintiff’s
objection
• The unequal burdens analysis
• Court: record does not establish that the policies
were more burdensome for women than men
▫ No evidence of the relative cost and time required
to comply with grooming requirements for men
and women
Jespersen (cont.)
• The sex stereotyping analysis
• Court: no evidence indicating that “the policy
was adopted to make women bartenders
conform to a commonly-accepted stereotypical
image of what women should wear.”
• “A makeup standard must be seen in the context
of the overall standards imposed on employees
in a given workplace.”
Jespersen (cont.)
• Judge Pregerson’s dissent
▫ Employer “imposed a facial uniform on only
female bartenders”; direct evidence of a sex
stereotype
• Judge Kozinski’s dissent
▫ Policy is more burdensome for women than men;
putting on makeup costs money and takes time
Sexual Harassment
• Meritor Savings Bank v. Vinson (U.S. 1986)
• Facts
• Court: supervisory sexual harassment of a
subordinate is discrimination on the basis of sex
• EEOC’s 1980 Guidelines
▫ Sexual harassment: “Unwelcome sexual advances,
requests for sexual favors, and other verbal or physical
conduct of a sexual nature.”
▫ Conduct is linked to an economic quid pro quo, or
creates a hostile and offensive working environment
Meritor (cont.)
• Court: a hostile work environment violates Title
VII
• “For sexual harassment to be actionable, it must
be sufficiently severe or pervasive ‘to alter the
conditions of [the victim’s] employment and
create an abusive working environment.”
▫ NOTE: “severe or pervasive”
Meritor (cont.)
• “The gravamen of any sexual harassment claim
is that the alleged sexual advances were
‘unwelcome.”
▫ Voluntariness is not the standard
• Issue: testimony about the plaintiff’s dress and
personal fantasies
• The employer’s liability for supervisory
harassment; employer grievance procedure
Sexual Harassment
• Harris v. Forklift Systems (U.S. 1993)
• Hostile-environment sexual harassment cases
• Challenged conduct (1) must be “severe or
pervasive enough to create an objectively hostile
or abusive work environment—and environment
that a reasonable person would find hostile or
abusive,” and (2) the victim must “subjectively
perceive the environment to be abusive”
Harris (cont.)
• Totality-of-circumstances analysis in hostileenvironment cases
• Proof of psychological harm or injury is not
required
• Note Fed. R. Civ. P. 35
Sexual Harassment
•
•
•
•
The equal opportunity harasser
The plaintiff’s conduct
Harassment that is non-sexual in nature
Consensual supervisor-employee relationships
Sexual Harassment
• Oncale v. Sundowner Offshore Servs. (U.S.
1998)
• Same-sex sexual harassment claims are covered
by Title VII where the plaintiff proves that the
at-issue conduct constitutes discrimination
because of sex
• Title VII is not “a general civility code” and does
not require asexuality or androgyny
Sexual Harassment
• Burlington Indus. v. Ellerth (U.S. 1998)
▫ Facts
• “Quid pro quo” and “hostile environment” cases
• Tangible employment action cases
▫ “[S]ignificant change in employment status, such
as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a
decision causing a significant change in benefits.”
Ellerth (cont.)
• Employer liability for supervisory harassment
▫ Restatement (Second) of Agency; see Sec. 219(2)’s
agency in the relation standard
• Tangible employment cases: a supervisor’s
tangible employment action against a
subordinate is, for Title VII purposes, the act of
the employer
• No affirmative defense
Ellerth (cont.)
• An employer is vicariously liable for supervisory
hostile-environment harassment
▫ Supervisor must have “immediate (or successively
higher) authority over the employee”
• Affirmative defense
▫ (1) Employer exercises reasonable care to prevent
and correct promptly sexually harassing behavior,
and
▫ (2) Plaintiff unreasonably failed to take advantage
of preventive or corrective activities or to avoid
harm otherwise
“Supervisor”
• Vance v. Ball State Univ. (U.S. 2013)
• Supervisors must be empowered by the
employer to take tangible employment actions
• Tangible employment action supervisor:
employer is strictly liable; no Ellerth affirmative
defense
• Non-TEA “supervisor” is a co-worker:
negligence is standard for employer liability
Anti-Harassment Policies
• Publicize to employees
• Prohibit workplace harassment (sex, race,
national origin, etc.)
• Complaint procedure
• Two or more company officials designated to
receive complaints
• Assurances of no retaliation; confidentiality to
the extent necessary