Transgender and Title VII: Time to Change?
August 31, 2004
If you have practiced employment law for more than a decade, you probably assume that Title VII does not cover transsexuals, transvestites or other transgendered individuals. It's simple: A lot of cases have held that "sex" discrimination does not extend beyond traditional notions of "male" and "female." Besides, an individual's sexual orientation is not protected under Title VII, so why should the transgendered be protected? Such an assumption is no longer necessarily valid. There appears to be a growing trend toward recognizing a cause of action for sex discrimination under Title VII when a transgendered employee suffers an adverse employment action.
The Pricelessness of Prevention
August 31, 2004
An employee who had never before complained about harassment quits and then files a sexual harassment constructive discharge claim with the EEOC. Can the employer prevail on the ground that the employee failed to take advantage of the employer's internal complaint procedure?
Sexual Harassment Litigation
August 31, 2004
Sexual harassment in the workplace is a serious and costly problem for corporate employers as well. Based on reports by women, an estimated 40%-90% of working women have experienced on-the-job sexual harassment. The U.S. Equal Employment Opportunity Commission (EEOC) and state and local agencies have received over 14,000 sexual harassment charges every year since 1992. This article reviews the psychological research literature on the legal standard applied in sexual harassment cases and on the abuse defense sometimes used in those cases.
Sexual Harassment
August 31, 2004
The comedian George Carlin once asked, "If you try to fail and succeed, which have you done?" A similar question arises in the context of sexual harassment: If a supervisor demands sexual favors of his subordinate and she silently acquiesces to keep her job, does she have a claim of sexual harassment against her employer? Despite the Supreme Court's many pronouncements on sexual harassment, the answer to that precise question is still unresolved.
The Ties That Bind
August 31, 2004
It's no secret that over the last decade, employees have been able to obtain large damages awards from employers in Title VII claims. Accusations of glass ceilings and racial and sexual harassment, for instance, are regularly splashed across headlines. Juries often see a sympathetic plaintiff and an employer with deep pockets. The prospect of a runaway jury is a prime motivation for employers to seek mandatory arbitration of these claims. Arbitration can in some cases reduce the costs of litigation, provide greater confidentiality, and provide a decision that is more predictable and less charged with emotion. There has been much controversy over so-called mandatory arbitration agreements, but a number of Supreme Court decisions in the last two decades have substantially refined the law in this area since the seminal case of <i>Alexander v. Gardner-Denver Co.</i>
Eyes On Equality and Opportunity
August 31, 2004
This year, on the second of July, I had the privilege of joining President Bush at a White House ceremony in which he led our Nation's observances of the 40th anniversary of one of the most sweeping and influential pieces of legislation in our history: the Civil Rights Act of 1964. This is the Act which, for the first time in U.S. history, addressed discrimination in voting, education, public accommodations, federal programs and employment. This is also the Act that established the U.S. Equal Employment Opportunity Commission, which opened its doors exactly one year later. Thanks to this landmark piece of legislation, it became illegal under federal law to discriminate in employment on the bases of race, color, sex, national origin, and religion. Since that time, the Commission has played a pivotal and preeminent role in preventing and eradicating discrimination in the workplace. Passage of the Civil Rights Act was truly a historic feat, but one that did not come easily.
Documentation and Other Effective Ways to Avoid Liability for Discrimination
August 31, 2004
As Title VII of the Civil Rights Act of 1964 (the primary federal discrimination law) celebrates its 40th anniversary, the method of proving a discrimination claim has greatly evolved. Virtually gone are the "smoking gun" statements using the "n-word," advertisements for applicants of a certain sex, or statements that individuals over a certain age aren't qualified to apply for a particular job. Although the world hasn't reached an era of perfection, blatant discriminatory expressions or policies are comparatively infrequent in modern discrimination litigation.
Constructive Discharges Resulting from Sexual Harassment
July 30, 2004
In one of its most important employment decisions on the subject of sexual harassment since its landmark decisions in <i>Burlington Industries, Inc. v. Ellerth</i> (524 U.S. 742, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998)) and <i>Faragher v. Boca Raton</i> (524 U.S. 775, 808, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998)), the Supreme Court, in <i>Pennsylvania State Police vs. Suders</i> (124 S. Ct. 2342, 159 L. Ed. 2d 204, 2004 U.S. LEXIS 4176 (2004)), addressed the issue of a constructive discharge resulting from sexual harassment.
