Employer Liability for Sex and Gender Discrimination

The Equal Employment Opportunity Commission’s Policy Guidance on Current Issues of Sexual Harassment, provides in depth guidance on the extent to which an employer should be held liable for discriminating against individuals who are qualified for but are denied an employment opportunity or benefit, where the individual who is granted the opportunity or benefit received it because that person submitted to sexual advances or requests.

The Commission and the courts have declared that sexual harassment violates Section 703 of Title VII. Guidelines on Discrimination Because of Sex defines two kinds of sexual harassment:

  • Quid Pro Quo – in which submission to or rejection of unwelcome sexual conduct by an individual is used as the basis for employment decisions affecting such individual
  • Hostile Work Environment – in which unwelcome sexual conduct unreasonably interferes with an individual’s job performance or creates an intimidating, hostile or offensive working environment.

Sexual Discrimination

The Equal Employment Opportunity Commission’s Guidelines provides: where employment opportunities or benefits are granted because of an individual’s submission to the employer’s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but were denied that employment opportunity or benefit.

Sexual favoritism in the workplace which adversely affects the employment opportunities of third parties may take the form of implicit “quid pro quo” harassment and/or “hostile work environment” harassment.

Isolated Instances of Favoritism Towards Paramour Not Prohibited

Not all types of sexual favoritism violate Title VII. It is the Commission’s position that Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships. An isolated instance of favoritism toward a “paramour” (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders. A female charging party who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman.

  • In Miller v. Aluminum Co. of America, the plaintiff alleged that her supervisor treated her less favorably than her co-worker because the supervisor knew that the co-worker was engaged in a romantic relationship with the plant manager. The lower court held that in order to establish a Title VII claim, the plaintiff would have to show that her employer would have or did treat males differently. Since the plaintiff’s male co-workers shared with her the same disadvantage relative to the co-worker who was engaged in the affair with the manager, the plaintiff could not show that she was treated differently than males. On appeal to the Third Circuit, the Commission filed an amicus brief supporting the ruling of the district court on the basis that favoritism toward a female employee because of a consensual romantic relationship with a male supervisor is not sex discrimination against other female employees within the meaning of Title VII. The Court of Appeals summarily affirmed.
  • In DeCintio, seven male respiratory therapists claimed that they were unlawfully disqualified for a promotion that went to a woman who was engaged in a romantic relationship with the department administrator. The court held that the department administrator’s conduct, though unfair, did not violate Title VII. The court reasoned that the prohibition of sex discrimination in Title VII refers to discrimination on the basis of one’s sex, not on the basis of one’s sexual affiliations; the therapists’ claims were not cognizable under the Act since they were denied promotion because the administrator preferred his “paramour,” rather than because of their status as males. The court distinguished Equal Employment Opportunity Commission’s Guidelines by stating that they address the granting of employment benefits because of an individual’s “submission” to sexual advances or requests, and the word “submission” connotes a lack of consent. Since the department administrator did not force anyone to submit to sexual advances in order to win promotion, his conduct was not within the purview of the Guidelines.

Favoritism Based Upon Coerced Sexual Conduct May Constitute Quid Pro Quo Harassment

If a female employee is coerced into submitting to unwelcome sexual advances in return for a job benefit, other female employees who were qualified for but were denied the benefit may be able to establish that sex was generally made a condition for receiving the benefit. Thus; in order for a woman to have obtained the job benefit at issue, it would have been necessary to grant sexual favors, a condition that would not have been imposed on men. This is substantially the same as a traditional sexual harassment charge alleging that sexual favors were implicitly demanded as a “quid pro quo” in return for job benefits. For example, in Toscano v. Nimmo, the court found a violation of Title VII based on the fact that the granting of sexual favors was a condition for promotion. Although the individual who was granted preferential treatment was engaged in a consensual affair with her supervisor, there was evidence that the supervisor made telephone calls to proposition several female employees at home, phoned employees at work to describe his supposed sexual encounters with female employees under his supervision, and engaged in suggestive behavior at work.

Many times, a third party female will not be able to establish that sex was generally made a condition for the benefit in question. For example, a supervisor may have been interested in only one woman and, thus, have coerced only her. The Sexual Favoritism Discrimination Lawyers Los Angeles at Helmer Friedman LLP represent employees that have been negatively impacted by this type of sexual discrimination. Nevertheless, in such a case, both women and men who were qualified for but were denied the benefit would have standing to challenge the favoritism on the basis that they were injured as a result of the discrimination leveled against the woman who was coerced.
In Clayton v. White Hall School District in which the Commission argued that a white employee had standing under Title VII to challenge her employer’s decision to deny her an employment benefit pursuant to an employment policy which it allegedly enforced for the purpose of denying the same benefit to a black employee; although the plaintiff was not the object of racial discrimination, she was injured as a result of the race discrimination practiced against the black employee. Also DeCintio v. Westchester County Medical Center by implication, male plaintiffs’ claims of favoritism was rejected not because of lack of standing but because the woman who received the favorable treatment was not coerced into submitting to sexual advances); Equal Employment Opportunity Commission v. T.I.M.E.-D.C. Freight, Inc. white plaintiffs could challenge discrimination against blacks provided that they could establish a personal injury; Allen v. American Home Foods, Inc., males who lost their jobs due to their employer’s discrimination against female co-workers suffered an injury as a result of the discrimination, and therefore had standing to sue under Title VII.

Widespread Favoritism May Constitute Hostile Environment Harassment

If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. In these circumstances, a message is implicitly conveyed that the managers view women as “sexual playthings,” thereby creating an atmosphere that is demeaning to women. Both men and women who find this offensive can establish a violation if the conduct is “sufficiently severe or pervasive to alter the conditions of their employment and create an abusive working environment.” Henson v. City of Dundee, An analogy can be made to a situation in which supervisors in an office regularly make racial, ethnic or sexual jokes. Even if the targets of the humor “play along” and in no way display that they object, co-workers of any race, national origin or sex can claim that this conduct, which communicates a bias against protected class members, creates a hostile work environment for them. See Rogers v. Equal Employment Opportunity Commission, discriminatory treatment of medical patients created hostile work environment for plaintiff employee; Equal Employment Opportunity Commission Decision the supervisor’s habitual use of racial epithet in referring to Black employees created discriminatory work environment for White Charging Party; sexual harassment of females may create hostile work environment for other male and female employees.

Managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment. This can form the basis of an implicit “quid pro quo” harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive.

The case of Broderick v. Ruder, illustrates how widespread sexual favoritism
can be found to violate Title VII. In Broderick a staff attorney at the Securities and Exchange Commission alleged that two of her supervisors had engaged in sexual relationships with two secretaries who received promotions, cash awards, and other job benefits. Another of her supervisors allegedly promoted the career of a staff attorney with whom he socialized extensively and to whom he was noticeably attracted. In addition, there were isolated instances of sexual harassment directed at the plaintiff herself, including an incident in which her supervisor became drunk at an office party, untied the plaintiff’s sweater, and kissed her. The court found that the conduct of these supervisors “created an atmosphere of hostile work environment” offensive to the plaintiff and several other witnesses. It further stated that the supervisors’ conduct in bestowing preferential treatment upon those who submitted to their sexual advances undermined the plaintiff’s motivation and work performance and deprived her and other female employees of promotions and job opportunities. While the court in Broderick grounded its ruling on the hostile environment theory, it is the Commission’s position that these facts could also support an implicit “quid pro quo” harassment claim since the managers, by their conduct, communicated a message to all female employees in the office that job benefits would be awarded to those who participated in sexual conduct.

  1. Example – Charging Party alleges that she lost a promotion for which she was qualified because the co-worker who obtained the promotion was engaged in a sexual relationship with their supervisor. Equal Employment Opportunity Commission’s investigation discloses that the relationship at issue was consensual and that the supervisor had never subjected Charging Party’s co-worker or any other employees to unwelcome sexual advances. The Commission would find no violation of Title VII in these circumstances, because men and women were equally disadvantaged by the supervisor’s conduct for reasons other than their genders. Even if Charging Party is genuinely offended by the supervisor’s conduct, she has no Title VII claim.
  2. Example – Same as above, except the relationship at issue was not consensual. Instead, Charging Party’s supervisor regularly harassed the co-worker in front of other employees, demanded sexual favors as a condition for her promotion, and then audibly boasted about his “conquest.” In these circumstances, Charging Party may be able to establish a violation of Title VII by showing that in order to have obtained the promotion, it would have been necessary to grant sexual favors. In addition, she and other qualified men and women who were denied the promotion would have standing to challenge the favoritism on the basis that they were injured as a result of the discrimination leveled against their co-worker.
  3. Example – Same as Example 1, except Charging Party’s supervisor and other management personnel regularly solicited sexual favors from subordinate employees and offered job opportunities to those who complied. Some of those employees willingly consented to the sexual requests and in turn received promotions and awards. Others consented because they recognized that their opportunities for advancement would otherwise be limited. Charging Party, who did not welcome this conduct, was not approached for sexual favors. However, she and other female and male coworkers may be able to establish that the conduct created a hostile work environment. She can also claim that by their conduct, the managers communicated to all female employees that they can obtain job benefits only by acquiescing in sexual conduct.