State and federal anti-discrimination laws make discrimination based on sex illegal. Sexual harassment is a type of discrimination against someone due to their sex. But is harassment of a person due to their sex, but in a way that’s not sexual, sexual harassment? This legal distinction matters for employers who want claims against them resolved through arbitration, not the court system as a partnership dispute lawyer can explain.
What Is Discrimination Based On Sex?
The federal Civil Rights Act of 1964 covers a wide range of decisions and actions about an employee because of their sex, whether male or female. It includes hiring, firing, terms and conditions of employment, including unequal pay rates. Sexual harassment is considered discrimination based on sex.
Most states have statutes banning sex discrimination on the job. While federal law covers employers with 15 or more employees, state laws usually apply to smaller employers.
What Is Sexual Harassment?
It could include demands for sex in exchange for maintaining one’s job or to improve one’s working conditions and offensive remarks about a person’s sex, according to the agency that enforces the Civil Rights Act of 1964, the Equal Employment Opportunity Commission. The victim and harasser can be of either or the same sex.
Sexual harassment can be the following:
- Requests for sexual favors
- Unwelcome sexual advances
- Physical or verbal harassment of a sexual nature
- Offensive remarks about a person’s sex, including generalized, offensive comments about people of a given sex
These actions and words must be frequent or severe enough to create a hostile or offensive work environment or cause an adverse employment decision (like a pay cut, demotion, or job loss).
Sexual harassment doesn’t involve the following:
- Simple teasing
- Offhand comments
- Isolated incidents that are not serious (though a single or few incidents, if severe enough, can be considered harassment)
Tolerance of harassment in the workplace is never a good idea. You should maintain a reporting system for discrimination claims, investigate them, and, if they’re credible, discipline the party who caused the problem.
Do The Labels Matter?
They do if you have enough employees to fall under federal law and prefer these claims be resolved through an arbitration process instead of the court system. Arbitration is an alternative dispute resolution method because it could be used instead of litigation as our friends at Focus Law LA can share.
The parties would agree on how it works. It’s generally not open to the public, doesn’t allow as much discovery (learning facts from the opposing party) as a trial would, is typically less expensive, and the results are very difficult to appeal to the court system. Instead of a judge, an arbitrator or panel of arbitrators decides the case. They’re usually retired judges, attorneys, or those still practicing.
The process has been called pro-defendant because if an arbitrator repeatedly decides in favor of defendants, they may be more inclined to hire them. However, there are no guarantees, and defendants often lose arbitration hearings.
A 2022 federal law prevents arbitrations from hearing sexual harassment claims. A plaintiff who prefers the federal court system may argue their treatment is discriminatory and harassment, so a case can’t be arbitrated.
Such a case is being litigated. The plaintiff is a former drugstore manager claiming that because she’s a female, her supervisor:
- Made rude comments about women
- Assigned her undesirable tasks
- Denied her a promotion, causing her to quit (known as constructive discharge)
Her case was initially dismissed because the trial judge ruled what is alleged doesn’t constitute sexual harassment.
The plaintiff’s attorney argued to the appellate court that the 2022 law applies to sexually charged conduct and claims involving harassment based on sex, like being aggressively rude and sabotaging a worker’s future if it reaches the point it’s severe or pervasive conduct that creates a hostile work environment.
The law’s definition of sexual harassment isn’t very helpful:
“The term ‘sexual harassment dispute’ means a dispute relating to conduct that
is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.’
Arguments on the case were held on October 30. It’s not known when a ruling will be issued. No matter how it’s decided, the losing party may appeal it to the US Supreme Court.
If you have any questions about discrimination laws, sexual harassment, or arbitration, contact your attorney.