Title VII does not prohibit discrimination based on sexual orientation. However, individuals who identify as gays, lesbians, or transgendered have successfully asserted claims of discrimination under Title VII.

The claims are made on the basis of an employer's gender stereotyping of characteristics or traits associated with a particular gender. For example, a federal court has ruled that a gay former employee who was harassed because he did not conform to the male stereotype in his workplace was entitled to bring his lawsuit to trial (Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3rd Cir. 2009)).

(Note: although federal Title VII does not directly prohibit discrimination based on sexual orientation, some state and local laws do.)

What Is Gender Stereotyping?

Under Title VII, it is unlawful for an employer to base employment decisions on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex. It may also be unlawful to base employment decisions on the perception that an employee does not fit the stereotype of his or her gender.

The U.S. Supreme Court has ruled that an individual whose employer took adverse employment action against her because she did not match the gender stereotypes her employer associated with females had an actionable claim under Title VII (Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989)).

What Is Gender-Based Harassment?

Courts have consistently ruled that the critical issue in gender-based harassment is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed (Harris v. Forklift Sys., 114 S.Ct. 367 (1993)).

Headlines (and court judgments) tell the story—anti-harassment programs are critical. Solution? Check out BLR's new Sexual Harassment Essentials Kit. Plus for a limited time receive a Free bonus download. Go here for details.

Same-Sex Harassment

Although acts of sexual harassment must be grounded in discrimination that is based on sex, the sex of the offender and victim is not controlling. Sexual harassment of a member of the same sex also violates Title VII's prohibition against discrimination based on sex (Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998)).

The harasser need not be homosexual and need not be motivated by sexual desire to be in violation of the law.

On the other hand, ordinary socializing in the workplace, simple teasing or roughhousing, and male-on-male horseplay or intersexual flirting is not prohibited. The offensive conduct must be sufficiently severe or pervasive in order to create Title VII liability.

The Supreme Court has adopted what might be called a "common sense and context" approach. For example, a coach who slaps a football player on the buttocks as he heads onto the field might not be engaging in abusive behavior, but in a different context (e.g. in an office setting) the coach's conduct might be considered harassment.

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What to Do to Avoid Harassment Claims

  • Know who qualifies as a supervisor. Employers are often exposed to unnecessary liability by failing to be aware of who is representing the company in a supervisory capacity.
  • Use reasonable care. Establish, disseminate, and enforce an anti-harassment policy with:
    • A clear explanation of prohibited conduct provided periodically to every employee
    • A clearly described complaint process that provides accessible avenues of complaint
    • Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation
    • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible
    • A prompt, thorough, and impartial investigation
    • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred
    • Other measures to ensure effective dissemination of the policy and complaint procedure, including posting them in central locations and incorporating them into employee handbooks
  • Enact an effective complaint procedure—where an appropriate response by management is taken, such as a thorough investigation of all complaints and taking action to correct any and all offensive conduct in a timely manner along with other reasonable steps to prevent and correct harassment.
  • Train employees to use reasonable care—where the employee makes a good-faith effort to avoid the harm of harassment and utilizes internal complaint procedures in a prompt and reasonable manner. Failure to complain might be considered reasonable if the employee reasonably believes that using the complaint mechanism entails a risk of retaliation.

In tomorrow's Advisor, the special issue of harassment on young workers (get ready for summer) and an introduction to a new downloadable Sexual Harassment Essentials Kit.

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