When most people think of sexual harassment in the workplace, their thoughts tend to focus on inappropriate touching or comments made by superiors to subordinates that are sexual in nature. Such gestures or comments may give rise to sexual harassment suits, but sexual harassment need not be so overt or literal to be actionable.
Federal sexual harassment suits are based in Title VII of the Civil Rights Act of 1964, and a party can also sue under Arizona antidiscrimination law (A.R.S. 41-1463) . Inappropriate employer practices that discriminate against members of a gender “because of … sex” are actionable. The “clear cut” harassment outlined above has been interpreted through a long line of cases to be discriminatory by creating a hostile work environment. The US Supreme Court has noted that “…a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” Meritor Savings Bank, Fsb v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).
However, the Ninth Circuit has determined, and the US Supreme Court has not disagreed, that sexual harassment may exist even where there is no direct sex-specific conduct, so long as there is indirect evidence of qualitative and quantitative differences in the harassment suffered by one gender. E.E.O.C. v. National Educ. Ass’n, Alaska, 422 F.3d 840, 2005 WL 2106164 (Fed. 9th Cir., 2005). Put plainly, the ultimate question is whether conduct tended to affect one gender more adversely than another, rather than if it was aimed at one particular gender.
It should also be noted that, much like the federal government, the State of Arizona has outlawed employment discrimination on the basis of race, color, religion, sex, age, national origin or disability.
If this is all a bit confusing to you, do not fret. Sexual harassment suits are a fascinating, but convoluted, subset of employment law cases. That said, it is important for employees and employers alike to understand conduct that constitutes sexual harassment. Prescott Law Group is here to make sense of the complex rules and represents both employers and employees in workplace lawsuits, including those that allege sexual harassment. Call (928) 445-1909 to schedule a consultation.