Chapter 3 - § 3.5 • SPECIFIC CATEGORIES OF TITLE VII CLAIMS

• Jurisdiction: Colorado

§ 3.5 • SPECIFIC CATEGORIES OF TITLE VII CLAIMS

This section will identify and briefly discuss claims brought under Title VII.

§ 3.5.1—Sex Discrimination

Title VII prohibits an employer from discriminating against an employee on the basis of sex with respect to "compensation, terms, conditions or privileges" of employment. 42 U.S.C. § 2000e-2(a)(1). It is well established that this prohibition encompasses sexual harassment in the workplace. Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987). Title VII also prohibits pregnancy discrimination. 42 U.S.C. § 2000e(k). Intentional segregation of male and female employees is a violation of Title VII, and it is illegal to advertise a position and request a female or male unless there is a bona fide occupational qualification.

This section discusses several types of sex discrimination including:

• Sexual harassment;
• Pregnancy discrimination;
• Sex discrimination — disparate impact cases;
• Sex-based wage discrimination;
• "Sex plus" discrimination; and
• Sex stereotyping.

The Tenth Circuit has ruled that "Title VII's reference to 'sex' means a class delineated by gender, rather that sexual affiliation" because the Supreme Court has stated that Title VII was intended to eliminate disparate treatment of men and women. Parker v. Salazar, 431 F. App'x 697, 698-99 (10th Cir. 2011) (citing Taken v. Oklahoma Corp. Comm'n, 125 F.3d 1366, 1370 (10th Cir. 1997) and Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n. 13 (1978)).

Sex Discrimination — Disparate Impact

When a plaintiff claims an unlawful employment practice based on sex discrimination, he or she must first make out a prima facie case of discrimination by showing that a specific identifiable practice or policy caused a significant disparate impact on a protected group. Murphy v. Derwinski, 990 F.2d 540, 544 (10th Cir. 1993). In Carpenter v. Boeing Co., 456 F.3d 1183, 1194 (10th Cir. 2006), the Tenth Circuit explained, "The court compares the gender composition of those who are subject to the challenged employment practice with the gender composition of those enjoying the benefit for which the practice selects. In assessing whether a plaintiff has established a prima facie case, it is, of course, irrelevant what happens to those who do not qualify for consideration."

Sexual Harassment

Sexual harassment is a form of gender discrimination, although Title VII does not explicitly mention sexual harassment. Traditionally, the courts recognized two types of sexual harassment. The first type of sexual harassment — quid pro quo — occurs where specific benefits of employment are expressly or impliedly conditioned on submission to sexual demands or sexual favors. The second type of sexual harassment occurs when an employer subjects an employee to conduct or conditions so severe or pervasive that it creates an unwelcome, intimidating, or hostile working environment that alters the terms and conditions of the plaintiff's employment. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987). Same-sex harassment is equally illegal. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998); Dick v. Phone Directories Co., 397 F.3d 1256 (10th Cir. 2005).

In order for a plaintiff to establish that he or she was subjected to a sexually hostile work environment, the plaintiff must prove:

• The conduct complained of was unwelcome;
• The conduct complained of was offensive;
• The conduct complained of was directed to or affected the plaintiff because of his or her gender;
• The conduct complained of was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment by creating a hostile work environment; and
• The employer knew or should have known of the offending conduct and failed to respond in a reasonable manner.

Meritor Savings Bank, 477 U.S. at 65-68. See also Hirase-Doi v. U.S. West Commc'ns, Inc., 61 F.3d 777 (10th Cir. 1995).

In two 1998 decisions, the U.S. Supreme Court eliminated many of the distinctions between quid pro quo and hostile environment sexual harassment and further clarified the standards for when an employer will be liable where supervisors are involved. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).

An employer will be liable for a hostile work environment created by any employee if management-level employees knew, or in the exercise of reasonable diligence should have known, of the hostile or offensive work environment, and failed to take prompt and effective remedial action. Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987). An employer will be automatically liable for a supervisor's harassment that results in a significant tangible employment action such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Faragher, 524 U.S. 775; Ellerth, 524 U.S. at 761.

The distinction between supervisor harassment and co-worker harassment is an important distinction to be made in the analysis of a sexual harassment claim and the application of the vicarious liability doctrine. Kramer v. Wasatch County Sheriff's Office, 743 F.3d 726, 737 (10th Cir. 2014). An employer may be directly liable for an employee's unlawful harassment if the employer was negligent with respect to the offensive behavior. Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013). However, if the harasser is a supervisor, the employer may be vicariously liable for the conduct. Id. at 2443. Who constitutes a supervisor is dependent upon a factual and legal analysis. In Vance, the Court held that a supervisor under Title VI is an employee whom the employer has empowered to take tangible employment action against the victim to effect a significant change in employment status such as hiring, firing, failing to promote, reassignment with significant different responsibilities, or a decision causing a significant change in benefits. Id. Also, employers may be liable for tangible employment actions influenced by a biased subordinate, even though the final decision maker was unbiased. Staub v. Proctor Hosp., 526 U.S. 411, 420 (2011); Thomas v. Berry Plastics Corp., 803 F.3d 510 (10th Cir. 2015) (facts did not support imposition of cat's paw theory of liability).

The Tenth Circuit appears to be following the economic loss requirement in determining whether there has been a tangible employment action. Mallinson-Montague v. Pocrnick, 224 F.3d 1224 (10th Cir. 2000) (loss of small bonuses determined to be tangible employment action where the plaintiffs "testified . . . that their compensation was significantly affected"); see also Tran v. Trustees of State Colleges in Colo., 355 F.3d 1263 (10th Cir. 2004).

Where the plaintiff does not suffer a tangible employment action in connection with a supervisor's sexual harassment, an employer is still strictly liable unless the employer prevails on an affirmative defense and proves by a preponderance of the evidence that: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of the employer's preventative and corrective mechanisms, or to avoid harm otherwise. Faragher, 524 U.S. at 807. In Cadena v. Pacesetter Corp., the court found that there was substantial evidence that Pacesetter's corporate officers were well aware of the sexual harassment of the plaintiff and did nothing to stop it; and other evidence indicated that the company's investigation of the harasser's conduct was inadequate, if not a complete sham. 224 F.3d 1203 (10th Cir. 2000).

In Wilson v. Tulsa Junior College, the court found that the employer's sexual harassment policy did not provide an employee reasonable avenues to file a complaint and that the employer failed to take timely and sufficient remedial action. 164 F.3d 534 (10th Cir. 1998).

There is a wide range of conduct that may contribute to a hostile work environment, including:

• Sexual jokes and comments;
• Sexual advances or propositions;
• Repeated touching;
• Sexually suggestive comments about a co-worker's clothes or body;
• Denigrating or hostile written or graphic material posted or circulated in the workplace;
• Leering, whistling, pinching, or brushing up against a co-worker's body; and
• Graphic discussions of one's sexual prowess or sex life.

Conduct that supports a sexual harassment claim does not have to be explicitly sexual in nature and need not involve physical touching. The issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987); O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093 (10th Cir. 1999). Thus, neutral conduct leveled at both sexes, even if egregious, cannot support an inference that the harassment is based upon sex. See Bird v. West Valley City, 832 F.3d 1188, 1205-07 (10th Cir. 2016). Sexual assaults that take place off-site and outside of work hours can still qualify as actionable sex discrimination under Title VII. Kramer v. Wasatch County Sheriff's Office, 743 F.3d 726, 753 (10th Cir. 2014).

The severity of the conduct necessary for suit varies inversely with the pervasiveness or frequency of the conduct. Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). A single incident may be sufficient to support a claim, if it is particularly severe. Turnbull v. Topeka State Hosp, 255 F.3d 1238 (10th Cir. 2001). Less objectionable incidents may be actionable only if they occur frequently. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1543 (10th Cir. 1995) (plaintiff was required to present evidence that she was subjected to a "steady barrage of opprobrious sexual comments"). Casual or isolated comments or incidents may not...