Audit, Compliance and Risk Blog

Federal laws prohibit employers from basing employment decisions on a variety of factors, including “sex.” This term is not defined, leaving its interpretation to change and expand with social changes and court decisions. The central entity creating and applying these interpretations is the Equal Employment Opportunity Commission (EEOC), which administers and enforces Title VII of the Civil Rights Act of 1964 and a variety of subsequent laws. On July 15, EEOC reaffirmed its present interpretation, in an enforcement decision in which the plaintiff claimed he was denied access to a promotion because he’s gay (Baldwin v. Foxx). The EEOC’s order includes a clear summary of the agency’s approach to sex discrimination cases:

“When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination — whether the [employer] has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.”

The latest decision, and this passage summarizing EEOC’s approach, are reminders to employers that a wide variety of potential employment decision factors are prohibited as discriminatory. This is a good time to review these factors.

How Has “Sex” Been Interpreted And Applied To Discrimination Cases?

Prohibited sex discrimination has been found to include any and all of the following:

• Discrimination against one gender relative to the other – most targets are women, but men can suffer “reverse discrimination” if an employer is over-compensating, or in traditionally female occupations.

• Sexual harassment – including “quid pro quo” demands for sexual favors in exchange for employment benefits, unwelcome attention by sexually predatory supervisors, and/or gender-based hostility.

• Hostile workplaces – where a reasonable man or woman would find harassment sufficient to “change the terms and conditions of employment” compared to those faced by others.

• Sexual favoritism – where an office liaison leads to actual or perceived favoritism for the partner.

• Pregnancy discrimination.

• Discrimination linked to the Family and Medical Leave Act – most often directed at women trying to maintain caregiver responsibilities outside the workplace.

• Sex stereotyping – where a woman isn’t “feminine enough” or a man isn’t “manly enough” in coworkers’ or supervisor’s judgment.

• Sexual orientation – typically against homosexual or bisexual individuals in a predominantly heterosexual workplace.

• Gender identity and transgender status – in which an individual’s expressed gender doesn’t match the one he or she was born with.

In general terms, expansion of the use of “sex” has proceeded down this list of bullet points, from issues already under common attention when Title VII was enacted in 1964 to those still being litigated today. Employers should note that states and even local governments also have anti-discrimination laws, some of which are more expansive and/or detailed than the federal laws enforced by EEOC.

Self-Evaluation Checklist

Does my organization have a formal policy against sex discrimination?

• If so, does it apply to hiring, compensation, fringe benefits and other aspects of employment, and promotions?

• If so, does the policy cover female and male workers?

• If so, does the policy cover discrimination and harassment based on sexual advances?

• If so, does the policy cover gender-based hostility?

• If so, does the policy cover discrimination based on pregnancy (including past, present, and potential future pregnancy)?

• If so, does it cover family and medical leave issues?

• If so, does it cover sexual orientation?

• If so, does it cover gender identity?

Does my organization assign responsibility for preventing, reporting and addressing possible instances of sex discrimination?

• If so, are assignments clear, including general responsibilities for all employees and targeted responsibilities appropriate to employees’ positions?

• If so, is achievement of these responsibilities part of employees’ performance objectives, reviews and compensation?

Does the organization follow-up appropriately to reporting of possible sex discrimination?

Does the organization wish to submit formal public comments on these proposed rules?

Where Can I Go For More Information?

• EEOC sex-based discrimination webpage 

• Baldwin v. Foxx decision (7/15/15)