E. Sex Discrimination and Sexual Harassment

• Jurisdiction: New York

E. Sex Discrimination and Sexual Harassment

In the area of sex discrimination, state protective laws have been struck down,⁹⁸ differential benefit plans have been ruled illegal,⁹⁹ mandatory pregnancy leave has been found to violate Title VII,¹⁰⁰ and the use of sex-based actuarial tables in connection with retirement programs has ended.¹⁰¹

In Bostock v. Clayton County, Georgia,¹⁰² the Supreme Court ruled that discrimination against an individual for being gay or transgender violates the Title VII prohibition against discrimination because of sex. Justice Gorsuch, writing for the Court's majority, explained that: "If the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee—put differently, if changing the employee's sex would have yielded a different choice by the employer—a statutory violation has occurred."¹⁰³

In 2019, the New York State Human Rights Law was amended to prohibit discrimination based on gender identity or expression.¹⁰⁴ The law defines "gender identity or expression" as "a person's actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender."¹⁰⁵ Accordingly, there is no question that, under New York law, discrimination or harassment on the basis of sexual orientation or gender identity of expression are prohibited.

Title VII recognizes that disparate treatment may be appropriate on the basis of religion, sex or national origin when these are bona fide occupational qualifications (BFOQs) reasonably necessary to the normal operation of a particular business or enterprise.¹⁰⁶ This exception, however, is interpreted narrowly.¹⁰⁷

The courts have recognized a cause of action for sexual harassment where a supervisory employee conditions favorable results or threatens an unfavorable result unless an employee provides sexual favors ("quid pro quo" sexual harassment).¹⁰⁸ In Meritor Savings Bank, FSB v. Vinson,¹⁰⁹ the Supreme Court recognized a cause of action where an employer permits or tolerates a working environment that creates an objectively hostile environment based on gender.¹¹⁰

Four cases decided in 1998 extended and clarified the law in the area of sexual harassment. In Franklin v. Gwinnett County Public Schools,¹¹¹ the Supreme Court concluded unanimously that Title IX¹¹² authorized a high school student who had been sexually harassed by a coach/teacher to recover damages from the school district. In Gebser v. Lago Vista Independent School District,¹¹³ the Court held that an action under Title IX could not succeed unless a school district official who had authority to institute corrective measures on the district's behalf had actual notice and was deliberately indifferent to the teacher's misconduct.¹¹⁴

In Oncale v. Sundowner Offshore Services, Inc.,¹¹⁵ the Court resolved a conflict among circuit courts and concluded that sexual harassment was not limited to male/female interactions, but also included same-sex harassment. The Court also suggested that it would apply a more common-sense definition to determine whether particular conduct constituted sexual harassment. Horseplay or flirtation do not necessarily create a discriminatory work environment.

Another issue that had divided the circuit courts for a number of years was resolved in Burlington Indus. v. Ellerth.¹¹⁶ The plaintiff had been subjected to sexual harassment for a number of years but had not suffered any adverse tangible job consequence despite her rejection of the unwelcome threatening sexual advances of her supervisor. She actually had been promoted. Applying agency principles, the Court found that "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee."¹¹⁷

Where there is no adverse employment action, however, the defending employer can raise an affirmative defense comprising two necessary elements: (a) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (b) the plaintiff-employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.¹¹⁸

Finally, in Faragher v. City of Boca Raton,¹¹⁹ the Court reaffirmed the liability of an employer for quid pro quo harassment even though the employer had no knowledge of the offending conduct. The Court reasoned that the employer would be liable since it had provided the harasser with the supervisory tools to accomplish his or her purpose. However, the Court applied a different rule in the case of hostile environment sexual harassment. There, in language identical to that it had used in Burlington Industries, decided the same day, the Court ruled that the employer would be liable despite lacking any knowledge of the hostile environment sexual...