Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘sexual discrimination’

A sexist Republican just gave the Supreme Court exactly what it needs to legalize sex discrimination

Thursday, July 11th, 2019

Mississippi state lawmaker and Republican gubernatorial candidate Robert Foster refused to travel with a reporter covering his campaign — because the reporter is a woman.

The reporter, Larrison Campbell, is one of several journalists from the outlet Mississippi Today, who asked if they could shadow Republican candidates running to lead the state. Both of Foster’s opponents agreed to this arrangement, although the reporter assigned to cover their campaigns happened to be male. Foster, however, refused to allow Campbell to ride along with him unless she was accompanied by a man.

On Twitter, Foster later explained that he discriminated against Campbell because of an arrangement with his wife.

It must be very sad to be in a marriage built on such a foundation of mistrust, but Foster’s sexism could also have profound legal implications. While Foster’s discrimination against a reporter is unlikely to end in a civil rights lawsuit, an employer who followed this “Billy Graham Rule” would necessarily deny professional opportunities to their female employees.

Imagine, for example, that a female campaign aide asked to ride with Foster because they wanted to share an idea for how to improve Foster’s stump speech. That aide would be denied this opportunity, while a male colleague with a similar idea would be allowed to ride with Foster.

Such an arrangement violates Title VII of the Civil Rights Act of 1964, which provides that employers may not “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

But here’s the problem — after Foster’s initial tweet explaining that he would not ride with Campbell because of his arrangement with his wife, Foster explained that this arrangement is tied up in his religious identity.

If you’ve followed the drama about whether anti-LGBTQ business owners should have a right to discriminate if they claim a religious justification for doing so, it’s not hard to see how Foster’s arrangement — or a similar arrangement by another employer — could end.

Let’s say that Foster refuses to travel with female aides while giving this professional opportunity to male aides. One of them sues, asserting that Foster violated Title VII. Foster then claims that he has a right to violate Title VII because his sexism is rooted in his religious beliefs. How would the Supreme Court handle such a case?

The short answer is that we don’t know for sure, but the court gave us a pretty good hint in Burwell v. Hobby Lobby, and that hint suggests that there are five votes on this Supreme Court to hold that sexist religious beliefs trump Title VII.

Hobby Lobby involved an employer who, in violation of federal regulations, refused to cover certain forms of birth control in their employee health plan. Prior to Hobby Lobby, this employer would have lost because the law did not allow “religious liberty” claims to diminish the rights of third parties — in this case, the rights of the company’s employees who wanted contraception. Hobby Lobby scrapped this longstanding rule, and permitted religious objectors to wield their objections against the rights of others.

But if religious objections now trump other peoples’ rights, what does that mean for anti-discrimination law? In a single paragraph, Justice Samuel Alito, who wrote the majority opinion in Hobby Lobby, tried to calm this concern. “The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race,” he wrote, “and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

Notice what Alito did there, however. While he specifically states that race discrimination in employment cannot be justified by religion, he rather pointedly does not say that other forms of discrimination — such as sexism or homophobia — cannot be justified by a religious objection to obeying a civil rights law.

The Supreme Court, moreover, has only grown less sympathetic to victims of discrimination since Hobby Lobby. Both of Trump’s appointees to this court, Neil Gorsuch and Brett Kavanaugh, are significantly more conservative than the man they replaced.

So, while it is not certain that there are now five votes to say that sexist religious beliefs nullify Title VII, it is quite likely that they are. And the “Billy Graham Rule” that Foster says he follows would give this Supreme Court exactly the vehicle it needs to hold that laws banning discrimination against women must bow to religious conservatives.

This article was originally published by Think Progress on July 10, 2019. Reprinted with permission. 

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Should HIV-Positive Workers Be Allowed in the Sex Industry? Some Advocates Say Yes.

Thursday, July 11th, 2019

Carrie WeismanIndividuals who are HIV-positive are not permitted to participate in the adult entertainment industry. That standard is enforced through the Performer Availability Screening Services, otherwise known as PASS. Anyone who tests positive for HIV is permanently banned from the system.

The same applies to other regulated subsets of sex work. To date, Nevada is the only state where full-service sex work is legal. All individuals who apply for work must undergo medical testing for STIs, including HIV. According to Jeremy Lemur, a P.R. representative for one of Nevada’s 21 legal brothels, anyone who tests positive for the virus is not welcome to work at any legal establishment within the state.

But not all sex workers think HIV-positive people should be banned from the field. Jacen Zhu is an adult performer and LGBTQIA activist. According to him, there are schools of queer performers who believe in opening up the industry gates to those living with an undetectable HIV status.

The word “undetectable” is important to emphasize here. The advance of antiretroviral therapy has dramatically shifted the prognosis of those who test positive for HIV. The medication works by preventing copies of the exciting virus from replicating and blocking new ones from entering human cells. So long as they remain vigilant with this medication regime, HIV positive individuals are able to maintain a normal lifespan. In fact, the medication is able to suppress viral loads so effectively that standard blood tests will not be able to detect any trace of the virus. This is what it means to become “undetectable.” And that’s an important status to carry, especially in the context of intimate relationships. A 2017 report conducted by the Centers for Disease Control and Prevention found that 49% of people living with HIV in the United States had reduced their viral loads to an undetectable level.

“If you have an undetectable viral load for an extended period of time, say 6 months, it is extremely unlikely that you would transmit the virus to an uninfected partner,” explains Dr. William Short, an infectious disease specialist based in Philadelphia. Short is also an Associate Professor of Clinical Medicine at the Perelman School of Medicine of the University of Pennsylvania and serves on the board of directors for the American Academy of HIV Medicine. “Thousands and thousands of acts of condom-less sex have been studied,” he adds. “The science is very clear.”

“Many gay and queer performers are rallying in support of undetectable performers being able to work,” says Zhu. “[We are] fighting stigma from within our own safe-spaces. These performers are proactive in their sexual health. If we’re in an industry promoting sex, we also hold the responsibility of being sexual health advocates.”

While there is a notorious lack of data about sex work, it’s safe to say that some will face financial hardship if they are no longer able to work in this field. Sure, there are the headlines that suggest some individuals have been able to amass incredible earnings from their time in the field, but the more likely reality is that the many more turn to sex work as a means of survival. This is especially true of marginalized communities who experience difficulty securing housing, employment and the proper documentation required to enjoy a safe and stable existence.

To be sure, people in the industry have genuine fears. Some of the backlash is coming from other performers. In January of this year, thousands of people poured into the Hard Rock Hotel and Casino in Las Vegas in anticipation of the Adult Entertainment Expo. The annual event is designed to spotlight new products and services related to the adult entertainment industry. This year, the organizers agreed to throw in a discussion surrounding HIV, a subject that is often shunned from conversations concerning mainstream porn. The idea was to decrease the stigma of what has now become a controllable diagnosis, open up a dialogue about safety and consent, and explore how HIV and the adult entertainment industry may interact in the future. But hopes of what that conversation may blossom into disintegrated the moment performers hit the web with concerns over what a more lax approach to the virus could mean for the industry.

Some grassroots organizers emphasize that the decriminalization of sex work is critical to protecting the health of workers and clients.

Nina Luo is a community organization at Vocal-NY, a grassroots organization that provides harm-reduction services to low-income individuals affected by HIV/AIDS. She’s also the press coordinator for Decrim NY, a coalition designed to decriminalize the sex trade in New York City and State. According to her, decriminalization gives sex workers a better shot at actually tracking their interaction with the virus. Without the fear of police, they are in a better position to do things like negotiate condom use, disclose their status and access medical resources. This, in turn, gives clients the ability to utilize informed consent when deciding whether or not they want to move forward with things. According to a Lancet study, decriminalization can reduce new HIV infections amongst sex workers, partners and clients up to 45%.

This is important to keep in mind, even for those currently working within legal environments. Sky (who prefers to be identified by her professional name) has been working at Sheri’s Ranch in Nevada for a little over a year. Earlier this year, a federal lawsuit was introduced aiming to outlaw the brothels. “If the brothels go away, none of the women I’m speaking with are talking about how to leave the sex industry,” she says. They’re all talking about how they’re going to survive in a sex industry that’s no longer legal.” At the brothels, the women are required to use barrier methods during any sexual interaction with a client. Escorts don’t typically enjoy that same security working independently, and illegally.

According to an investigation conducted by UNAIDS in 2014, stigma, discrimination and “punitive legal environments,” are key determinants in HIV vulnerability. UNAIDS found that of as many as 48% of U.S. sex workers say they have had their condoms confiscated by police.

It’s a tightrope to walk between forging a system designed to protect the health and wellness of those in the industry and protecting the individual freedoms of sex workers. Decriminalizing the industry means law-enforcement officials would be unable to intervene in activities and transactions related to sex work. This would give both clients and providers more say in whom they choose to work with and in what capacity. Legalizing it, on the other hand, would require a series of regulations be put into place, ones that would likely alienate certain individuals from the field, particularly those who test positive for HIV, even if undetectable.

Loosening up stigmas surrounding the virus, meanwhile, would serve sex workers even—when off the clock.

“Sex workers are afraid of disclosing their work to healthcare providers for fear of lower quality service, discrimination, criminalization or harassment. This linkage between a patient and healthcare provider is critical to identifying violence, exploitation, trafficking, yet it’s disrupted by criminalization,” says Luo.

“We’re not trying to create a new industry,” she adds. “But we do want to remove policing and criminalization from sex workers’ lives.”

This article was originally published at In These Times on July 10, 2019. Reprinted with permission.

About the Author: Carrie Weisman is a journalist based in New York City. She reports on sex, relationships and culture.

Women Haven’t Gained A Larger Share Of Corporate Board Seats In Seven Years

Wednesday, December 12th, 2012

In addition to grappling with a persistent pay gap, working women also have to deal with extreme difficulty ascending to powerful corporate positions, according to a report by the research organization Catalyst. As Bryce Covert explained at The Nation:

Women held just over 14 percent of executive officer positions at Fortune 500 companies this year and 16.6 percent of board seats at the same. Adding insult to injury, an even smaller percent of those female executive officers are counted among the highest earners—less than 8 percent of the top earner positions were held by women. Meanwhile, a full quarter of these companies simply had no women executive officers at all and one-tenth had no women directors on their boards. […]

Did this year represent a step forward? Not even close. Women’s share of these positions went up by a mere half of a percentage point or less last year. Even worse, 2012 was the seventh consecutive year in which we haven’t seen any growth in board seats and the third year of stagnation in the C-suite.

Overall, more than one-third of companies have no women on their board of directors. But economic evidence shows that keeping women out of the board room is a mistake. According to work by the Credit Suisse Research Institute, “companies with at least one woman on the board would have outperformed in terms of share price performance, those with no women on the board over the course of the past six years.”

This post was originally posted on Think Progress on December 11, 2012. Reprinted with Permission.

About the Author:  Pat Garofalo is the Economic Policy Editor for ThinkProgress.org at the Center for American Progress Action Fund. Pat’s work has also appeared in The Nation, U.S. News & World Report, The Guardian, the Washington Examiner, and In These Times. He has been a guest on MSNBC and Al-Jazeera television, as well as many radio shows. Pat graduated from Brandeis University, where he was the editor-in-chief of The Brandeis Hoot, Brandeis’ community newspaper, and worked for the International Center for Ethics, Justice, and Public Life.

There Is No Crying In Business, Yet

Monday, March 7th, 2011
Image: Bob Rosner

Speaker of the House of Representatives, John Boehner cries on “60 Minutes.” He cries during a swearing in ceremony. He cries in another interview. Will it be long before he cries over a lost parking spot?

In fact, enter the phrase “John Boehner cries” into Google and you’ll get 351,000 links.

Holy Tip O’Neill, what is going on here?

Then the Miami Heat, a.k.a. the Heatles, lose their fourth game in a row. Coach Erik Spoelstra observes in a post-game interview that a couple of players were crying in the locker room.

Sure, the coach said that to show that his players care. But crying? In the locker room?

Try as I may, I just can’t see former Boston Celtic Bill Russell cry. I can see him make other players cry as he blocked shot after shot, but not Bill himself.

Now I’m going to show my age. I remember in 1972 when Edmund Muskie choked up in a speech in New Hampshire, and it promptly ended his presidential campaign.

I can remember when Tom Hanks said, “There is no crying in baseball” in the movie “A League of Their Own.”

How did the very thing that used to end a career, or serve as a punch line, suddenly become the thing to do?

The crying game, clearly the game has changed. Crying appears to be the new high five. A way to bond with your audience, to show your emotional presence and to put a capital “E” for empathy on your forehead.

So business people, let’s tear up, the time has come for you to emote.

With employees, customers and vendors. Let them see that you care.

You don’t have to put it on your sleeve, it can run down directly onto your shirt. No worries.

Of course you can always go against the grain and keep your eyes dry. But why fight the sudden tsunami of tears?

Ironically, Boehner’s predecessor, Nancy Pelosi, did cry a time or two. Mostly she was savaged by opponents for not being genuine.

That’s the remarkable irony here, crying used to be owned by women, appears to now be a guy thing.

Ladies and gentlemen in the world of business, start your tear ducts. Crying is now officially in fashion.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

Crossing the Line: The Ninth Circuit’s Guidelines for Flirting at Work

Friday, September 17th, 2010

Patrick KitchinAfter months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion.  Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.”  Everyone at work thought the situation was hilarious:  a widower turning down the explicit sexual advances of an attractive woman.  But Rudolpho Lamas and his lawyers are not laughing.

When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked.  And, does Title VII impose different standards on men and women in sexual harassment cases?  Finally, do gender stereotypes have a place in the jurisprudence of Title VII?

Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII.  (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.

Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.

It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act.  Under Title VII, sexual harassment is considered to be a form of sex discrimination.

A Title VII sex harassment claim can be based on two theories of liability:  (1) economic quid pro quo; or (2) hostile environment.

In a typical case of quid pro quo sexual harassment, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.”  Hensen v. City of Dundee 682 F.2d 897 (11th Cir. 1982). “Have sex with me,” says the supervisor, “and you’ll get that promotion.”

In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted.  “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.”  Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against:  discrimination based on sex.

This month’s Ninth Circuit case was based on the second of these two Title VII liability theories.  To maintain a gender-based, hostile environment case, a worker must show that:

(1) he or she was subjected to verbal or physical conduct of a sexual nature

(2) the conduct was unwelcome, and

(3) the conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991)

Element 1:  Conduct of a sexual nature

Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him.  She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”

The Court had no trouble finding that the conduct was sexual.  “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on.  Her proposition was for sex, not a cup of coffee together.”

Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.

Element 2:  Welcomeness

The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser.  What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome?  The short answer is, the same evidence a woman needs to present.

Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker.  Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations.  So, what did the Ninth Circuit think about this digression into cultural stereotypes?  Not much.

The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything.  “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”

“Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.”  Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary.  Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments.  Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”

While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well.  To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations.  “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”

Element 3:  Severe or Pervasive

Title VII is not a “general civility code” either.  It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Faragher v. Boca Raton, 524 US 775 (1998).

Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination.  In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.

Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII.  A sexual assault immediately creates an abusive working environment.

Less egregious conduct can provide grounds for a Title VII claim, as well, if:  (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.

Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however.  But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker?  What if this conduct was part of an attitude that permeated the workplace with gender bias?  If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.

Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit.  But taken together, they often do.  So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa.  The courts treat it as a classic inverse relationship.

Putting It All Together

By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings.   The female employee’s conduct obviously was sexual.  And Lamas made it clear that he wanted the conduct to stop.  The conduct was pervasive and had a serious negative impact on conditions at work.  Lamas’s job performance suffered.  When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality.  Lamas complained several times to his supervisors about the harassment, but nothing was done.

If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.

Guidelines for Flirting at Work?

In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment

People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.

Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII.  “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”

Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law?  Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.

Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country?  Not really.  But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.

Your Rights Job Survival The Issues Features Resources About This Blog