Anti-Harassment Policies
•  Publicize policy to employees
•  Prohibit workplace harassment (sex, race,
national origin, etc.)
•  Complaint procedure
•  Designate two or more company officials who
can receive complaints
•  Assurances of no retaliation; confidentiality to
the extent necessary
Anti-Harassment Policies
•  Prompt investigation of complaints
•  Determination of complaint’s merits or lack
thereof reported to the complainant
•  Meritorious complaints: remedies reasonably
calculated to end the harassment
▫  Warnings? Suspension? Discharge?
•  Penalties for the filing of “false” complaints?
Sexual Harassment
•  Nichols v. Azteca Restaurant (9th Cir. 2001)
▫  Facts
•  Objective hostile environment?
•  Subjective hostile environment?
•  Because of sex: Sanchez was harassed because
he “did not act as a man should act” and “failed
to conform to a male stereotype”
Nichols (cont.)
•  Co-worker harassment: negligence standard
(employer knew or should have known)
•  Supervisory harassment: vicarious liability and
two-prong affirmative defense
Sexual Harassment
•  Pa. State Police v. Suders (U.S. 2004)
•  Sexual harassment/constructive discharge claim
▫  Aggravated, worst case harassment
•  Constructive discharge: working conditions
became so intolerable that a reasonable person
in the employee’s position would have felt
compelled to resign
Suders (cont.)
•  Plaintiff establishes (1) abusive working
environment and (2) constructive discharge:
employer has Ellerth/Faragher two-pronged
affirmative defense
•  Plaintiff establishes (1) abusive working
environment and (2) constructive discharge
caused by employer-sanctioned adverse action:
no affirmative defense
▫  An official employer action was the last straw
Sexual Orientation/Gender Identity
•  American Psychological Association
•  Sexual orientation: “an enduring pattern of
emotional, romantic and/or sexual attractions to
men, women, or both sexes.”
▫  Heterosexual, gay/lesbian, bisexual
•  Gender identity: “a person’s internal sense of
being male, female or something else”; gender
expression “through behavior, clothing,
hairstyles, voice or body characteristics”
Sexual Orientation/Gender Identity
•  In 2012 the American Psychiatric Association
discontinued use of the term “gender identity
disorder”
Sexual Orientation/Gender Identity
•  Smith v. City of Salem, Ohio (6th Cir. 2004)
•  The sex stereotyping claim
▫  Prima facie case?
•  Smith sufficiently alleged that his failure to
conform to sex stereotypes constituted sex
stereotyping and gender discrimination
•  “Sex stereotyping based on a person’s gender
non-conforming behavior is impermissible
discrimination, irrespective of the cause of that
behavior . . .”
Sexual Orientation/Gender Identity
•  The EEOC interprets and enforces Title VII’s sex
discrimination prohibition as forbidding
discrimination on the basis of gender identity or
sexual orientation
•  Examples: failure to hire an applicant because
she is a transgender woman; firing an employee
because he is planning or has made a gender
transition; denying employee equal access to a
restroom corresponding to the employee’s
gender identity
State And Local Laws
•  20+ states ban sexual orientation, gender
identity discrimination
•  At least 255 cities and counties
•  Thousands of businesses (vast majority of the
Fortune 500) prohibit sexual orientation/gender
identity discrimination
National Origin
•  Espinoza v. Farah Mfg. Co. (U.S. 1973)
•  Title VII Sec. 703(a)
•  National origin: “the country where a person was
born” or “the country from which his or her
ancestors came”
•  Court: discrimination on the basis of citizenship
is not discrimination because of national origin
•  Note: employers may not lawfully discriminate
against non-citizens on the basis of race, color,
religion, sex, or national origin
National Origin
•  English fluency as a BFOQ
•  English-only rules
•  Foreign accent
▫  See Fragrante and Gold
Retaliation
•  Most common type of discrimination claims
filed with the EEOC; over 30,000 charges per
year in the period 2010-14
Retaliation
•  Title VII Sec. 704(a): “It shall be an unlawful
employment practice for an employer to
discriminate against any of his employees or
applicants for employment . . . because he has
opposed any practice made an unlawful
employment practice by this title, or because he
has made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this title.”
Retaliation
•  The prima facie case
•  Step 1: (1) Employee engaged in protected
activity,(2) Employer knew of the protected
activity; (3) Employee was subjected to an
adverse employment action, and (4) there was a
causal link between the protected activity and
the adverse action.
•  Step 2: employer’s legitimate, nondiscriminatory
reason
•  Step 3: pretext
Retaliation
•  Burlington Northern & Santa Fe Ry. Co. v.
White (U.S. 2006)
▫  Facts; issue
•  Title VII’s anti-discrimination provision Sec.
703(a): protects persons “based on who they are,
i.e., their status.”
•  Anti-retaliation provision Sec. 704(a): “prevent
harm to individuals based on what they do, i.e.,
their conduct”
Burlington (cont.)
•  Standard: plaintiff must show that a reasonable
employee would have found the challenged
employer action “materially adverse”
•  Employer’s conduct “could well dissuade a
reasonable worker from making or supporting a
charge of discrimination.”
•  Does not apply to “normally petty slights, minor
annoyances, and simple lack of good manners”
Burlington (cont.)
•  Application of standard to White
•  The reassignment
•  The 37-day suspension without pay
Retaliation
•  Crawford v. Metro (U.S. 2009)
•  Third-party retaliation, Thompson v. North
American Stainless (U.S. 2011)
Retaliation
•  University of Texas Southwestern Medical
Center v. Nassar (U.S. 2013)
•  No mixed-motive Title VII retaliation claims
▫  The Civil Rights Act of 1991 amended Title VII Sec.
703 but not Sec. 704(a)
•  The plaintiff must prove that her protected
activity was the but-for cause of the alleged
adverse action by the employer.
Sexual Orientation—The Constitution
•  Padula v. Webster (D.C. Cir. 1987)
•  Held: it was not irrational for the FBI to
discriminate on the basis of homosexuality
•  Same result today?
▫  Consider Romer v. Evans (U.S. 1996); Lawrence
v. Texas (U.S. 2003); Obergefell v. Hodges (U.S.
2015)