Carol, who is white, female, and heterosexual, complains that she is being harassed by several of her co-workers. Specifically, Carol complains that co-workers make fun of her for not dressing “like a girl” and that her voice is deep. Co-workers joke that she cannot really be married to the guy who calls. Carol believes that her complaint to her supervisor about this harassment resulted in her not getting a recent promotion within her department. What is an employer to do?
Both federal and state law prohibit discrimination in the workplace on the basis of sex. Gender stereotyping is a form of sex discrimination. It applies equally to men and women.
Federal law under Title VI provides that “`a`ll personnel actions affecting employees or applicants for employment…shall be made free from any discrimination based on … sex… .” 42 U.S.C. 2000e-16(a). Title VII applies to employers with fifteen or more employees. New Hampshire’s Law Against Discrimination, which applies to employers with over five employees, similarly prohibits discrimination in employment because of someone’s sex.
New Hampshire’s law also prohibits discrimination because of someone’s sexual orientation or perceived sexual orientation. Under that law, "sexual orientation" means "having or being perceived as having an orientation for heterosexuality, bisexuality, or homosexuality." An employee need not be actually gay, lesbian, bisexual, or heterosexual to be protected. It is enough that a person is "perceived" as having that particular sexual orientation and it is not relevant whether the perception is correct.
Back in 1989, the U.S. Supreme Court in Price Waterhouse v. Hopkins held that employers are prohibited from discriminating against employees for failing to conform to gender stereotypes. In that case, the female-plaintiff was denied partnership in an accounting firm because she was too aggressive, did not dress, talk or walk in a feminine manner, and that she did not wear enough make-up. The Court held that an employer cannot take an employment action based on perceived non-conformance with a certain gender stereotype – not being “feminine enough.” More recently, in April 2012, the Equal Employment Opportunity Commission (EEOC) ruled that an employee can maintain a sex discrimination claim against an employer under Title VII based on the theory of gender identity or transgender.
As with other protected classes under federal and state law, it is also unlawful discriminatory practice to retaliate against employees exercising their rights under the law. The law prohibits discharging, expelling or otherwise retaliating or discriminating against any person because that person has opposed any practices forbidden under Title VII or the New Hampshire law against discrimination. Even if the underlying complaint of discrimination is unsupported, an employer may still be liable for retaliation.
Issues about discrimination based on sex or sexual orientation are often challenged in the environment of the work place where there are photographs on desks or walls and conversations about husbands, wives, partners, and family members. Types of harassment or discriminatory conduct may include overt acts such as derogatory or hateful words or less obvious acts such as negative stereotyping. It may include physical acts such as touching or non-verbal acts such as leering or gestures.
There are protective measures an employer can take in preventing discrimination in the work place.
•Employers should implement a written equal employment or anti-discrimination policy that applies to all protected classes. The policy should include a complete and thorough description of the type of conduct that constitutes discrimination or harassment. The policy should include a clear complaint procedure for employees to follow with options on who to go to with a complaint.
•Employees should be provided a copy of the policy and sign a confirmation as to receiving, reading and understanding the policy, confirmation of which is placed in the employee's personnel file.
•Employers should also conduct training for managers and non-managers regarding the policy. Training informs and sensitizes employees on the type of behavior that can give rise to harassment or discrimination and it aids in helping them know and understand the written policy and the implementation of the written policy. Training should include overall harassment prevention training and include examples of unaccepted behavior relating to sexual stereotypes, sexual orientation, and other protected categories.
•Employers should also train managers to respond appropriately to complaints of harassment, discrimination, or retaliation.
•Employers should investigate and respond promptly to complaints of discrimination and harassment.
•Employers also need to be consistent in the handling of employee complaints and with any discipline of employees who violate the policy. Having a policy is not enough; employers need to follow their policy.
In Carol’s example, the employer should have a written policy that describes the types of conduct unacceptable in the work place, including conduct based upon actual or perceived sexual stereotypes or sexual orientation, and a statement that the company prohibits retaliation against anyone who files a complaint or who participates in an investigation. Prompt steps should be taken to investigate Carol’s complaint. The employer should take appropriate and responsive action based upon the investigation, including discipline.
Jennifer L. Parent, a director in the Litigation Department and Chair of the Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, P.A., can be reached at 628-1360 or [email protected]. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth as well as Woburn, Massachusetts.