DISCUSSION CASE: Sexual Harassment and Gender Equality

The U.S. Civil Rights Act of 1964 makes it illegal for employers to discriminate against any individual "because of such individual's race, color, religion, sex, or national origin." In October 2017, U.S. Attorney General Jeff Sessions issued a ruling that this legal protection against sex discrimination does not apply to discrimination based on gender. Sessions argued that the law prohibiting discrimination "because of sex" does not apply to gender discrimination because, "as ordinarily defined," the word "sex" refers to "biologically male or female." The Attorney General's decision concluded that the law offers no protection for "discrimination based on gender identity per se, including transgender status." Sessions' decision reversed a ruling made by the Obama administration's Attorney General that interpreted the phrase "because of sex" to include gender, and extending civil rights protection for transgender people. This ruling followed another decision in July 2017 by the Trump administration's Justice Department which argued that this same Civil Rights Act does not prohibit workplace discrimination based on sexual orientation. In that case, the Justice Department reasoned that the phrase "because of sex" should again be interpreted narrowly as not including "sexual orientation." Therefore, according to this argument, discriminating against gay and lesbian workers would not be a violation of the Civil Rights Act. These disputes reflect an ambiguity in the phrase "because of sex," which has plagued the Civil Rights Act since the very beginning. In a 1974 case, Barnes v Train, one court concluded that unequal workplace treatment based on an employee's refusal to engage in a sexual relationship with her supervisor did not violate the law. Reasoning in the same way as Attorney General Sessions did in 2017, this judge interpreted "sex" to refer to the biological category of male and female. He concluded therefore that this employee wasn't mistreated "because she was a [biological] woman" but "because she refused the sexual advances of her supervisor." The court found such behavior "inexcusable" but not the type of unlawful discrimination prohibited by the Civil Rights Act. Most courts disagreed with this interpretation however. By the 1980s, the Equal Employment Opportunity Commission (EEOC) had established legal guidelines that defined sexual harassment was a form of discrimination based on sex. The EEOC concluded that sexual harassment in the workplace had the effect of denying equal opportunity at work and was therefore discrimination "because of sex." The EEOC guidelines codified the two types of illegal sexual harassment that have governed workplace discrimination law since that time.

Quid pro quo harassment occurs when submission to sexual favors is made a condition for employment. Hostile work environment occurs when the overall workplace environment is so pervaded with sexual harassment and intimidation that it creates an unfair barrier for women in the workplace.

Sexual harassment of both the quid pro quo and hostile work environment varieties were at the forefront of the Me Too movement that rose to prominence during the fall of 2017. This movement focused public attention on the pervasive sexual harassment and sexual assault that women face every day in the workplace. While most coverage by mass media and social media emphasized cases involving celebrities and political figures, the central message of the Me Too movement was that sexual harassment and assault was widespread across broad areas of society. These are behaviors that many women recognize as all too common and as having happened to "me, too." But ambiguities remain, especially in respect to gender roles and gender identity. In one 1989 case, a women alleged that she was denied a promotion to a partnership in an accounting firm because she did not fit her employer's image of what a women should look like and how she should act. She was perceived as not "feminine" enough. In another case, a woman working in a construction job was denied a promotion because her co-workers were unwilling to accept a woman in a leadership role at a construction site. Her co-workers, employed as carpenters, electricians, plumbers and so on, did not think that women belonged in construction jobs, which were perceived as "masculine." As a result, she was regularly harassed with vulgar and crude, but not particularly sexual, gestures, and language.

Recall the James Damore and Google case described in chapter 6. In his memo, Damore claimed that the unequal representation of women in high-tech and leadership positions could be traced to biological and hormonal differences. These biological differences give rise to different preferences and abilities, which Damore claimed can be found universally across all cultures. Damore claimed that men are more aggressive, assertive, and systematic in their thinking, and they have a higher drive for status. Women are more open, extroverted, more interested in people than in things, and more neurotic. Thus, in Damore's view, workplace discrimination in high-tech firms should not be surprising because it is based on real (biologically based) differences in abilities and temperament. There are some workplaces, construction and software engineering are two examples, that are segregated by gender stereotypes, not by biological sex or sexuality. On the basis of the October 2017 memorandum, the U.S. Department of Justice would argue that gender discrimination is not illegal under the Civil Rights Act since it is not based on gender and not the biological categories of male and female.

DISCUSSION QUESTIONS

1. Attorney General Sessions claimed that the Civil Rights Act prohibits discrimination that is based on the biological categories of male and female. Why should those categories be subject to government regulation? Do you think that discrimination based on any other biological (or genetic) category should be illegal?
2. Employers discriminate against job applicants and employees all the time. For example, employers regularly discriminate because of grade point averages, college attended, dress, demeanor, and interview skills. What exactly is ethically wrong with workplace discrimination "because of sex"? Why is discrimination "because of sex" (or race, or religion) different?
3. A hostile workplace is a fact of life for many employees. One's supervisor might be mean-spirited, demanding, angry, cantankerous, or bad-tempered. No laws prohibit hostile work environments. Why is a hostile work environment based on sex different than one based on the personality of an employer?
4. Some employers use threats to get employees to behave as they want, as when an employee is told to do something or face being fired. How is quid pro quo sexual harassment different from these other threats?
5. How is discrimination based on sex different from, and similar to, discrimination based on gender? Assume the interpretation of "because of sex" adopted by Attorney General Sessions and evaluate James Damore's reasoning. Would such discrimination violate the principle that employers should not discriminate "because of sex"?
6. Is discrimination against gay or lesbian job applicant discrimination "because of sex"? Is discrimination against a transgender job applicant discrimination "because of sex"?