Sex Exam

Front 1

Title VII of Civil Rights Act

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Federal law prohibits sex discrimination/sexual harassment at the workplace. Must file a “charge of discrimination” with Equal Opportunity Commission (“EEOC”) within 180/300 days. May thereafter file lawsuit within 90 days of receipt of “right-to-sue letter.”

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N.J. Law Against Discrimination (“LAD”):

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State law prohibits discrimination and harassment on the basis of sex. Includes sexual orientation discrimination. Can file either complaint with NJ Division on Civil Rights within 180 days, or lawsuit directly in court within 2 years.

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Retaliation:

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is any adverse action that follows a protected activity, where there is a causal connection between the two.

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“Relation to “Bullying Laws”

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Thus far such laws limited to school context. (example, NJ “Anti-Bullying Bill of Rights”), cyber/social media bullying becoming more prevalent, and can sometimes involve criminal law issues. Workplace bullying based on gender would constitute sex discrimination or harassment. May also violate employer policy.

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Employment-at-Will:

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employer can fire an employee “for any reason, or no reason whatsoever, be it good cause, no cause, or even morally wrong cause.”

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Sexual Harassment:

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Unwelcome or unwanted sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that:
– Is sufficiently severe or pervasive to alter an individual’s employment conditions, and create a hostile or intimidating work environment

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Exceptions to Employment-at-Will:

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contractual (express, implied, CBAs); constitutional; anti-discrimination laws (Title VII, ADA, ADEA), etc.

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“Quid Pro Quo” Sexual Harassment

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when an employer attempts to make an employee’s submission to sexual demands a condition of employment

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“Hostile Work Environment” Sexual Harassment

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when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile.

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Types of Evidence:

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Direct –v- indirect (circumstantial) evidence. Types of evidence most common in sexual harassment cases.

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"Reasonable Woman Standard"

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:” complained-of conduct (1) would not have occurred but for the employee’s gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.

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Standards of Proof:

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in a civil case plaintiff must prove claims by “preponderance of the evidence.”

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Remedies:

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: include reinstatement, injunction, back pay, front pay, compensatory damages, punitive damages, attorneys’ fees and costs.

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Employer Liability

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The critical importance of written sexual harassment policies and training.

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Suits by Persons Falsely Accused of Sexual Harassment:

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Often will include a claim for defamation of character.

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Possible Criminal Law Issues:

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Victims of sex harassment often file criminal charges against harasser for assault, battery, stalking, etc.

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Same-Sex Harassment:

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Oncale vs. Sundowner Offshore Services Supreme Court ruled that sexual orientation is not important when legally finding male on male sexual harassment. A heterosexual man or woman can sexually harass another heterosexual man or woman. Same sex harassment is a form of discrimination and protected under the Civil Rights Act of 1964.

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Equal Employment Opportunity Commission (EEOC):

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1) Enforces Title VII,
2) Interprets the law against sexual harassment, 3) Issues charges of discrimination and 4) Files sexual harassment claims.

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Title IX

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Protects against discrimination on the basis of sex in education programs and activities that receive federal financial assistance. Supreme Court ruled that the term “sexual harassment” applies to misconduct that is so severe or pervasive and objectively offensive that it deprives the harassed student of access to educational opportunities.