Title VII of the Civil Rights Act makes it unlawful for employers with 15 or more employees “to discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information” 42 U.S.C. § 2000e-2(a)(1).
The Pregnancy Discrimination Act expanded Title VII of the Civil Rights Act to make it unlawful to discriminate against a woman who is pregnant.
Employers do not have to exhibit overt discrimination to risk liability. Even seemingly benign questions during the interview process can introduce the possibility of discrimination. If you are not disciplined in your interview process, “red flag” questions can unintentionally slip out.
Many companies carefully draft and review interview questions for specific jobs to ensure applicants are judged on their merits and to avoid questions that suggest selection bias. Even subtle inquiries can raise the question of prejudice, such as:
- What religion are you? What church do you go to? (Suggests discrimination based on religion.)
- Do you plan to start a family? (Suggests discrimination based on the prospect of pregnancy.)
- What country do you come from? (Suggests discrimination based on national origin.)
- Are you married? (Could suggest discrimination based on sexual orientation, gender identity, or prospect of pregnancy.)
The safest course of action is to avoid interview questions other than those required for determining if the candidate can comply with the performance requirements and hours of the job.
If you are concerned that your hiring decision might be discriminatory, it pays to confer with an employment attorney who can look at your situation and the legal issues. An employment attorney can determine whether you might be protected under “undue hardship” exceptions, based on the laws of all applicable jurisdictions. For example, the Civil Rights Act of 1964 contains an undue hardship provision that recognizes it might be burdensome to a business to comply with an employee’s religious requirements that prohibit working on Sundays if that is a crucial day for business.
Be sure to check your local ordinances. For example, Wake County, the City of Charlotte, and the City of Winston-Salem have all enacted discrimination ordinances to protect certain classifications. The ordinances prohibit discrimination in employment on the basis of a protected class. They amended the definition of a protected class to include gender identity, gender expression, sexual orientation, and natural hairstyle.
The Equal Pay Act – Expanding on Title VII of the Civil Rights Act, the Equal Pay Act prohibits paying wages based on the employee’s sex.
Sexual Harassment – Sexual harassment is a form of discrimination that violates Title VII of the Civil Rights Act. Sexual harassment can be defined as unwelcome sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature amounting to either a condition of employment or offensive job interference. Generally, there are two distinct types of sexual harassment: “quid pro quo” sexual harassment and “hostile work environment” sexual harassment.
The more easily recognizable form of sexual harassment is quid pro quo sexual harassment, which occurs when a beneficial condition of employment, such as a bonus or promotion, is premised upon an employee’s submission to sexual advances. Typically, this type of claim arises when an employee rejects a sexual advance and claims a connection between that rejection and a subsequent, adverse job action. For example, a denial of a raise or promotion, a termination, or a “constructive discharge” where an employee claims that the retaliation made job conditions intolerable.
Hostile work environment sexual harassment is more pervasive and, from a legal standpoint, more difficult to define. According to case law and the EEOC’s interpretive regulations, a hostile work environment is one that is so pervasive with offensive conduct that it significantly alters the terms and conditions of an employee’s employment.
These type of sexual harassment claims generally involve behavior that is uninvited or unwelcome and sexual in nature. For example, conduct sufficient to rise to the level of “hostile work environment” sexual harassment can be:
- Physical: touching such as hugs, kisses, body rubbing, and intentionally brushing up against another person
- Verbal: sexually suggestive words or jokes; sexual innuendos; compliments or comments about body parts; references such as gorgeous, honey, doll, babe, or other “pet names”; whistles, cat calls, and suggestive sounds; telling lies or spreading rumors about an employee’s sex life; or repeated requests for dates
- Nonverbal/visual: sexual gestures; unwanted attention in the form of flowers, love letters, or compliments; stares, leers, winks, or suggestive looks; or pornographic material such as nude pictures, calendars, cartoons, diagrams, or objects
A single incident, such as the touching or grabbing of private parts, may be enough to demonstrate a hostile work environment if it is severe. Otherwise, courts generally require a pattern of inappropriate behavior before the conduct is considered sufficient to rise to the level of a hostile work environment.
The establishment, dissemination, and enforcement of a no-harassment policy are the first key steps to limiting liability.
To be effective, a no-harassment policy should be in writing and distributed to every employee (optimally with a signed acknowledgement by each). This typically is done by way of either an employee handbook or is presented to the employee at the time of hire with a signed acknowledgement form placed in the employee’s personnel file.
Additionally, the policy should be posted in plain view, like in an employee break room or other location where it can be easily seen by employees.
Furthermore, the policy should be sure to prohibit all types of harassment and should not be confined to only sexual harassment. It should provide a clear definition of harassment and concrete examples of prohibited conduct.
Train managers to adhere to a zero-tolerance policy regarding sexual harassment. Even the best sexual harassment policy will not necessarily prevent sexual harassment from occurring. For this reason, it is critical that staff, particularly managers/supervisors, be given sexual harassment training both at their time of hire and, if need be, in periodic intervals thereafter. This is crucial as operators can be held liable—in some cases strictly liable—for their managers’ conduct.
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