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 And Gender 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). This includes any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe, benefits, and any other term or condition of employment. It is well established that this prohibition also 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. In Bostock v. Clayton County, the United States Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII's prohibition on discrimination because of sex. Bostock v. Clayton County, 140 S. Ct. 1731 (2020).

This section discusses several types of sex discrimination including:

• Sex discrimination — disparate impact cases;
• Gender discrimination;
• Sexual harassment;
• Pregnancy discrimination;
• 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."

Gender Discrimination

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." Bostock, 140 S. Ct. 1731. In reaching its decision, the Court focused on the plain text of Title VII. The Court explained, "discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second." Id. at 1746. The Court rejected arguments that sex must be the sole or primary cause of an adverse employment action. Id. at 1748.

The Court made clear that its decision applies to all forms of sex-based discrimination, including any aspect of employment, such as hiring, firing, pay, job assignments, promotions, layoff, training, fringe, benefits, and any other term or condition of employment. The decision also applies to all other types of sex-based discrimination such as sexual harassment. Thus, a workplace atmosphere that is hostile to lesbian, bi-sexual, gay, transexual, queer, or gender identity that meets the elements of sexual harassment described below is in violation of Title VII.

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

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