Gender discrimination in the workplace is the unfavorable treatment of an individual or group because of their gender, typically by those of the opposite sex.
What is Sexual Harassment? Sexual harassment includes any unwelcome verbal, visual, or physical conduct in the workplace. This can include conduct of a sexual nature or conduct based on someone’s sex or sexual orientation. Sexual harassment can be so severe that it creates a hostile work environment for the employee. Unwelcome Conduct Sexual harassment includes unwelcome and unwanted behavior. It is helpful if the victim informs the harasser that the conduct is unwelcome. The victim of sexual harassment should also inform the harasser that the conduct needs to stop. Sexual Conduct Sexual harassment includes conduct of a sexual nature. However, sexual harassment is not limited to sexual behaviors. Sexual harassment can also include inappropriate conduct based on an individual’s sexual identification or sexual orientation. For example, this can include discrimination against an employee because of the employee’s sex. Many different types of actions of a sexual nature may be sexual harassment. This may include verbal, physical, nonverbal, or visual conduct. For instance, inappropriate touching and sexual jokes may both constitute sexual harassment, although they take different forms. Severe or Pervasive Conduct The unwelcome conduct must either be severe or pervasive. Conduct is severe if it includes a very serious incident. For example, severe conduct may refer to rape or attempted rape. However, the conduct may also be pervasive. Pervasive conduct occurs when the harassment is less severe, but happens frequently or continues over time. Multiple minor incidents can accumulate to a sexual harassment claim if the incidents affect the victim’s work environment. For instance, this may include frequent and persistent sexual comments to an employee over time. Conduct that Affects Work Environment Sexual harassment can create a hostile work environment for the victim. Inappropriate and unwanted conduct at the workplace can make the victim feel uncomfortable and unsafe. Every person should feel comfortable where they work. But, this type of harassment can create a hostile work environment for the victim, affecting the victim’s work performance. Sexual harassment can also affect the victim’s working conditions. For example, the victim rejecting sexual advances may be fired, demoted, or refused a promotion. The sexual advances can not only leave the employee feeling victimized and unsafe, but can also lead to the victim losing money or job opportunities. Contact Us You should always feel comfortable and safe where you work. If you have experienced sexual harassment, the Middletown sexual harassment lawyers at McOmber & McOmber, P.C. can help you. Please call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, OR contact us at 888-396-0736 or online for a free consultation. We represent all clients in Middletown, Cherry Hill, and throughout New Jersey.
Parker v. Reema Consulting Services: Facts of the Case A male colleague employed at Reema Consulting Services Inc. started a rumor that the plaintiff, Evangeline Parker, received six promotions in a little over a year due to sleeping with her boss. The male colleague did not receive comparable promotions at Reema Consulting Services, Inc. The rumor was well-known throughout the Company and was even spread further by the highest-ranking manager at the warehouse who asked the man accused of sleeping with the plaintiff “hey, you sure your wife ain’t divorcing you because you are f--ing [Parker]?” Id. at 300. As the rumor spread, the plaintiff "was treated with open resentment and disrespect" from many coworkers, and her "work environment became increasingly hostile." Id. The plaintiff complained to the manager of the warehouse about his comments and the manager informed her that “he could no longer recommend her for promotions or higher-level tasks because of the rumor.” Id. When the plaintiff filed a sexual harassment complaint with human resources at Reema Consulting Services, Inc., she was told to stay away from the employee who started the rumor against her. Eventually, the plaintiff was given two written warnings and was terminated from the Company. Thereafter, the plaintiff filed a claim for sex discrimination. Court Holding While the District Court dismissed the plaintiff’s claim because it found that the allegation was based on alleged conduct, not the plaintiff’s sex, the Fourth Circuit of Appeals reversed the lower court’s decision. The court stated that “the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally woman, not men, use sex to achieve success.” Id. at 303. Altogether, the court found that the plaintiff plausibly alleged that she suffered harassment because she was a woman. The Fourth Circuit Court of Appeals includes the federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Based on this case, employers may be held liable for sex discrimination when management encourages the spread of rumors in the workplace and the rumors cause an adverse employment action to the employee. Employers should be vigilant in quashing rumors when they begin and appropriately responding to complaints of rumors and sex harassment. This case shows how Courts have increasingly been taking a broad view of sex discrimination and harassment in this #MeToo era.
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A: Adversity There must be some form of reasonably unfavorable treatment by the employer such as a denial of a promotion, suspension, termination, ect. B: Background Protected Every employee as several protected backgrounds under the law. This includes: race, gender, national origin, and religion. C: Comparable Employees Federal law says that if employees of different backgrounds were in similar situations compared to your situation, but did not receive the same severity of adverse treatment as you then the employer has violated law. Example: Cashier A is a female. Cashier B is a male. Both cashiers have accumulated several tardies, and missed a day of work. If the store fires either cashier without firing the other, then the fired cashier has a claim against the store for employment discrimination. D: Damages If an employer has unlawfully discriminated against an employee then the employee may be entitled to damages that include: reinstatement, lost pay, costs, and attorney fees.
But what about the First Amendment? Although the First Amendment broadly protected our right to freedom of speech, especially when we're expressing views about politics, the First Amendment applies only to state action - that of federal, state or local governments and some quasi-governmental entities. *The First Amendment's protection of free speech does not apply in the private workplace. *As such, private employers can bar political discussions at work and it is not a violation of the Constitution for an employer to terminate an employee for expressing political views contrary to the employers. Even though there is no general federal law prohibiting employment discrimination on the basis of political affiliation or speech, apparently nonpartisan discussions about politics and candidates could lead to claims of employment discrimination or harassment. *As such, many employers have company policies limiting the discussion of politics at work. *Candidates' genders, race, or religious affiliations are often mentioned during political discussions, which could lead to allegations of discrimination. *Additionally, polarizing and emotional topics like abortion, immigration, and sexual orientation which commonly arise in political discourse can lead to claims of harassment at work. While currently there is no federal law prohibiting discrimination based on political speech at private workplaces, under the National Labor Relations Act (NLRA), both union and non-union employees who speak out about political issues related to employment may be protected. *The National Labor Relations Board (NLRB) has specifically held that political advocacy for or against issues related to employment concerns that are not disruptive and occur during non-work time and in non-work areas are generally protected. *This type of advocacy could include protests related to minimum wage and health care and coverage in an employer's breakroom. That being said, such campaigning may be subject to lawful and neutrally-applied restrictions during on-duty time. Indiana Also, unlike in other states, in Indiana a private employer is not required to give its employees time off work to vote. *However, Indiana law does prohibit employers from influencing an employee's choice of candidate or from otherwise influencing the employee's political opinion or actions. *See Indiana Code 3-14-3-21.
Protected Classes of Employees Employers are supposed to only focus on qualifications when making hiring and job decisions. They cannot discriminate against people based on their gender, age, race, sexual orientation, or disability, etc. You may have a discrimination case if you are being passed over for a promotion, didn*t get a job or aren*t being compensated fairly for reasons other than your job qualifications. Common Misconceptions One of the common misconceptions about discrimination is that anything that doesn't go your way in the workplace could be a form of discrimination. For example, you may feel your boss is too hard on you and spends more time critiquing your work than that of other employees. This, in itself, is not enough to constitute discrimination. Simply being passed over for a promotion isn't enough, either. If your employer selected an equally qualified employee for the role, you likely won*t have grounds for a case. Defend Your Rights Discrimination can be difficult to prove, but it is important for employees to defend their rights in the workplace. If you feel like you have been mistreated for reasons that may be discriminatory, you should explore your legal options.
Learn how the law defines gender discrimination, and see how you can enforce your civil rights if you've been the victim of workplace gender discrimination.
Gender discrimination in the workplace is illegal under Title VII of the Civil Rights Act and the Equal Pay Act. See how these laws may apply to your situation.