This blog post is the first in a series explaining Title VII of the Civil Rights Act of 1964, which is the federal law prohibiting sexual harassment and discrimination in the workplace. Later posts in this blog will address New York State and New York City sexual harassment and discrimination laws.
If you believe you are a victim of sexual harassment and live or work in New York or Maine or you are an employer and have questions regarding compliance, you are invited to contact Attorney George here to schedule a 15 minute free phone consult.*
1. What is Title VII? Title VII is a federal law that prohibits employers from discriminating against job applicants and employees “because of the person's race, color, religion, sex [including pregnancy, gender identity, and sexual orientation],** national origin, age (40 or older), disability or genetic information.” https://www.eeoc.gov/eeoc/enforcement_litigation.cfm The Equal Employment Opportunity Commission (EEOC) is the agency in the federal government that is responsible for enforcing certain federal employment laws including Title VII.
**(Note that the EEOC interprets the existing sex discrimination provisions in Title VII to protect lesbian, gay, bisexual, and transgender (LGBT) applicants and employees against employment bias, even though it is not specifically written in the Act.) The EEOC further notes, however, that the U.S. Department of Justice's position regarding Title VII's coverage of LGBT-related discrimination differs from that of the EEOC, as per a memo from Attorney General Jeff Sessions, dated October 4, 2017. See https://www.justice.gov/ag/page/file/1006981/download
2. How is Sexual Harassment Defined? This is a tough one, because not all conduct that is sexual in nature in the workplace is prohibited by Title VII. The lines are often murky, except for extreme and obvious scenarios (for example, "sleep with me or else no job" as opposed to repeated requests by a supervisor to go to lunch). The EEOC has published a series of documents in its "Policy Guidance on Sexual Harassment in the Workplace", outlining factors to determine if particular conduct is actionable under Title VII. The guidelines are based upon an analysis of the most relevant Supreme Court cases involving sexual harassment claims.
The standards become confusing because politics, judicial appointees (which are often politically charged), and the Chief Executives' views (think polar opposite with Obama and Trump) play into interpretations. Nonetheless, the 1990 Policy Guidance from the EEOC provides a starting point.
Sexual harassment is defined under Title VII and interpretative case law as "only unwelcome sexual conduct that is a term or condition of employment" See 29 C.F.R. § 1604.11(a). The EEOC's Guidelines define two types of sexual harassment: 'quid pro quo' and 'hostile environment.'" https://www.eeoc.gov/laws/types/sexual_harassment_guidance.cfm
The 1986 Supreme Court case, Meritor Savings Bank v. Vinson, 106 S. Ct. 2399(1986) sets out the standard of when certain behavior is actionable as sexual harassment pursuant to Title VII. In light of Vinson, the EEOC has published its series of guidelines to determine whether sexual conduct is "unwelcome" or whether a work environment is sexually "hostile."
"The Guidelines provide that "unwelcome" sexual conduct constitutes sexual harassment when "submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment," 29 C.F.R § 1604.11 (a) (1). "Quid pro quo harassment" occurs when "submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual," 29 C.F.R § 1604.11(a)(2).1 29 C.F.R. § 1604.11(a)(3).2
Despite, these guidelines, the facts of individual cases can still be murky and these cases are often complicated, especially in instances where the only evidence may be conflicting testimony by the alleger and the accused.
3. Sexual Harassment in the News: How does Title VII relate to what we have been hearing in the news? The quick answer is that if the sexual harassment involves an employment situation, then Title VII is implicated. If it does not, other laws may apply or the consequences may be through means other than or in addition to a lawsuit, like loss of employment, removal from political office, or loss of an election.
The news has been replete with reports on disturbing and sometimes horrifying acts or alleged acts by the likes of Bill Cosby, Harvey Weinstein, Roy Moore, Bill O’Reilly, Matt Lauer, and other men in powerful positions, taking advantage of their elevated positions to sexually harass, intimidate, and discriminate against their victims, and in extreme cases, rape their victims in an effort to impact the particular underling’s (usually women, but not always) quest for employment, conditions of employment, actual employment, or chances for advancement in a particular field. But sometimes such offenses have nothing to do with employment at all, and are just bad acts. The alleged acts can lead to civil liability or, in some instances, criminal charges.
There has been much media attention about the high profile cases with celebrities, talking heads, and politicians, but this stuff also happens every day with everyday people in low profile circumstances in which there is no media attention and no consequences unless there is a lawsuit.
Why are so many women complaining now??
Are they getting money?
Have the tides finally turned?
3. Sexual Harassment in the News: How does Title VII relate to what we have been hearing in the news? The quick answer is that if the sexual harassment involves an employment situation, then Title VII is implicated. If it does not, other laws may apply or the consequences may be through means other than or in addition to a lawsuit, like loss of employment, removal from political office, or loss of an election.
The news has been replete with reports on disturbing and sometimes horrifying acts or alleged acts by the likes of Bill Cosby, Harvey Weinstein, Roy Moore, Bill O’Reilly, Matt Lauer, and other men in powerful positions, taking advantage of their elevated positions to sexually harass, intimidate, and discriminate against their victims, and in extreme cases, rape their victims in an effort to impact the particular underling’s (usually women, but not always) quest for employment, conditions of employment, actual employment, or chances for advancement in a particular field. But sometimes such offenses have nothing to do with employment at all, and are just bad acts. The alleged acts can lead to civil liability or, in some instances, criminal charges.
There has been much media attention about the high profile cases with celebrities, talking heads, and politicians, but this stuff also happens every day with everyday people in low profile circumstances in which there is no media attention and no consequences unless there is a lawsuit.
Why are so many women complaining now??
Are they getting money?
Have the tides finally turned?
4. #Metoo Movement. From my brief review of some of the allegations, it appears that many of the allegations, ranging from horrific to questionable, may no longer be "actionable" under Title VII because the allegations were not filed with the EEOC or proper court within the statute of limitations (either 180 or 300 days from the date of the alleged conduct)*** or that the allegations involved situations, while criminal, offensive, uncomfortable, or disrespectful, were outside of the realm of an employment context.
***(Note: some states have their own sexual harassment laws and the statute of limitations may be longer in the state cases)
This means that many women who are coming forward may be doing so for reasons other than monetary relief. Perhaps, they are mustering the courage to break the silence after a few brave women have spoken out publicly or to give credence to others who have come forward. In essence, there has been a public awakening, fueling others to break the silence, a swelling of the #metoo movement.
In some instances, there may have been no lawsuits or actions filed, but, nonetheless, serious consequences outside of the judicial system are being meted out including: public shaming and loss of jobs, political offices, and elections. In essence, the court of public opinion has its own form of vigilante justice for the perpetrators, yet the victims may gain nothing monetarily.
5. Backlash Movement: The backlash movement acknowledges that allegations alone should not be justification for punitive action and that there should be a fair process to investigate. Further, there is a concern that, with the fear of rampant lawsuits or public shaming, there will be a chilling effect on 'normal' interactions between men and women in the workplace, on campuses, and in other settings.
As poignantly stated by Emily Joffe, a contributing editor for the Atlantic in her December 10, 2017 piece in Politico "We now have an opportunity for profound reform, for women and men to join together to treat each other with dignity and respect. But as this unexpected revolution unfolds, we should also keep in mind the dangers of creating new injustices in the service of correcting old ones."
As an attorney, I think it is important for individuals in the workplace to be educated on the law so that their behaviors are guided by legal standards rather than misinformation and fear which is often fueled by the snippets of highly charged reports in the media. With all of the media attention, it is easy for us to get drawn into the fervor and pass judgment without having the benefit of investigative knowledge, common sense, and examining both sides of the coin.
6. What Action Should You Take? If you have ever experienced something in the workplace (either actually working or applying for employment) that feels like you are the subject of discrimination or harassment on the basis of your sex, gender, or sexual orientation, you should call the regional EEOC office (here is the contact information for NY in particular), or local human rights commission office or contact an attorney to vet your concerns.
At that point, you will make a decision on whether, based upon the facts and your circumstances, you feel it is in your best interest to pursue a claim.
There are many personal factors that are weighed in determining whether you feel further steps are necessary.
Having reviewed the legal concepts relevant to sexual harassment claims, the next blog piece provides a basic outline on the mechanics of filing Title VII action.
* DISCLAIMER: Attorney Advertisement (NYCPR 7.1) Any information in this blog post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. The writer is never responsible for the accessibility or accuracy of the linked material, which is provided only as a point of reference and for convenience. No information contained in this blogpost should be construed as legal advice from Beth George, Esq. nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this information contained in this blogpost should act or refrain from acting on the basis of any information included in this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. If you have a 15 minute consult with Beth V. George, Esq., such consult is for evaluation only and such contact does not constitute the establishment of an attorney-client relationship. Both the attorney and the individual must enter into a written agreement in order for there to be an attorney-client relationship established.
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