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Sex Discrimination and Sexual Harassment

Ever wonder exactly what “sexual harassment” means?

By
Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.  

Today’s episode is the second in a series on employment discrimination. In last week’s episode, I discussed the basic federal laws that protect various classes of employees. Today I will discuss what an employee or applicant must prove in order to prevail in a lawsuit for sexual harassment or sex discrimination.  

As discussed in the last episode, sex-based discrimination and sexual harassment are prohibited by Title VII of the Civil Rights Act, as well as many state statutes. Before jumping into what a plaintiff must prove in order to prevail, I’d like to mention the procedural posture of a Title VII case. A plaintiff cannot immediately sue the employer when he thinks he has been wronged.  First, the employer must file his grievance within 180 days with the Equal Employment Opportunity Commission (EEOC), the administrative body charged with enforcing Title VII. After the EEOC reviews the case, the EEOC will generally either act on the plaintiff’s behalf, or give a “right to sue” letter to the plaintiff. Only after the plaintiff receives this letter can he file in court. The point of this system is to allow the EEOC the ability to quickly resolve cases without clogging up the courts. 

Discrimination based on sex can take many forms. In the most basic example, an employer will choose not to hire, or choose not to promote a person on the basis of that person’s sex. This is known as intentional discrimination, also called disparate treatment. That is, the employer intentionally treats an employee or applicant differently than it would have if the person had been a different sex. Both men and women can be the victims of sex discrimination. 

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