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Sex Discrimination and Sexual Harassment

Ever wonder exactly what “sexual harassment” means?

By
Michael W. Flynn
4-minute read

One common defense against an accusation of intentional sex discrimination is where a bona fide occupational qualification is reasonably necessary to the normal operation of the particular business for which the exception is claimed. A very common example is the practice of hiring only women to work in women’s locker rooms. Courts have held that the requirement of being female is reasonably necessary to the operation of the facility maintaining the locker room in a manner that protects patrons’ privacy interests. However, an airline cannot only hire women flight attendants on the grounds that the mainly-male clientele prefers to be served by women during a flight. In that situation, courts have held that there is nothing about being female that is related to the tasks of being a flight attendant, and the clientele’s misogynist attitudes towards women are not something that the airline needs to accommodate in order to perform its task of transporting passengers.  

Another common form of sex discrimination is disparate impact. This type of discrimination occurs when a facially neutral policy has the effect of discriminating against one sex. A common example is a height-weight requirement. An employer might maintain a policy that nobody under 5’8” can be hired. On its face, this policy does not discriminate on the basis of an applicant’s sex – it only discriminates on the basis of the applicant’s height. But, this policy will surely shut out more women than men because women are far more likely to be under 5’8” than men. So, the policy will have a different impact on women than it will on men.

 But an employer can still use such a requirement in some circumstances: where the requirement is closely related to job performance. For example, the state of Alabama once had a height-weight requirement for all prospective prison guards. The state refused to hire a woman for failing to meet the requirement, and she claimed sex discrimination. The state argued that guards had to be strong enough and tough-looking enough to handle the prisoners. The Supreme Court rejected the argument, noting that height-weight were not necessarily accurate measures of strength. However, strength and physical ability tests are sometimes upheld for law enforcement personnel when the policy is tailored properly to actually measure strength. 

 Next, let’s move to sexual harassment. There are two main categories of sexual harassment under Title VII: quid pro quo, and hostile work environment. In the quid pro quo scenario, a plaintiff must generally show that benefits of employment were based on sexual acts. For example, an employer would be liable for quid pro quo harassment if only employees who had sex with their bosses were given bonuses. 

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