Chauvinism Can Be Sexual Harassment

Lessons from the TV Apprentice. Can chauvinistic treatment cross the line to become sexual harassment? A woman on Thursday’s Apprentice told her male team member that he was talking to her “as if she was a 5-year old” and being “very condescending” toward her. He told her that it’s how he would talk to his child when he has to repeat himself. When she told him that it’s always how he speaks to her, he told her to watch her verbiage - that he doesn’t always talk to her that way. She corrected herself and said, OK almost always, and then he asked her if she’s a liar since she admitted that it wasn’t always. At least once, he called her “young lady” in a condescending tone. And this was happening while they were trying to complete a very important task of creating a new product to combat clutter in the office as a team.
So, the legal issue is: Can annoying comments become illegal sexual harassment, even if they’re not “sexual” in nature?
The Answer: Yes – there are forms of harassment that are gender-based but are not sexually-explicit. An example of gender-based harassment is a comment such as “what do you know, you’re a woman?” This is not sexually explicit, like a sex joke. Instead, it shows hostility against a woman based on her gender. If this kind of comment is repeatedly directed toward someone in the workplace because of gender and interferes with the work, it can cross the line into illegal sexual harassment.
But, back to The Apprentice. The female team member did the right thing by telling her male team member that his comments offended her. He continued to make more statements to her that she found offensive, and she told him again. If he would have continued this behavior, and it negatively affected her ability to do her job, her next step should be to the nearest Apprentice HR office. HR should take these matters seriously and immediately take action to correct them.
The good news for women and men who are being targeted for slurs, “jokes,” or negative sexual stereotyping is that laws prohibiting gender discrimination in employment protect them from having to work in a hostile work environment. Title VII of the Civil Rights Act of 1964, as amended, is the federal law prohibiting gender discrimination, and gender stereotyping is a form of gender discrimination. Most states have state law versions as well.
So, Apprentice fans, if you find yourself being targeted for harassment because of your sex (even if it’s not sexually explicit in nature), know that sexual harassment of all forms is illegal. Call your local human rights commission or the Equal Employment Opportunity Commission or an attorney. You may have as little as 180 days from the harassment to file the paperwork necessary to preserve your claim.

Age Discrimination Claims Strengthened

On March 30, the United States Supreme Court broadened the scope of protections for older workers.


The Court held that the Age Discrimination in Employment Act (ADEA) protects older workers from discrimination arising from policies that appear neutral - that is, they don't specifically target older workers.


In Smith v. City of Jackson, police officers and dispachers claimed that a pay plan discriminated against older workers by giving junior officers with less than 5 years' experience higher percentages of pay raises in a plan designed to bring their pay up to be competitive with other areas.


While this practice didn't specifically target older workers, they claimed that it negatively impacted them overall, because they tended to have more years experience, and thus, received lower percentages of pay raises than the younger workers. Although the older workers lost the case, the Court did recognize that the type of claim they brought, called disparate impact, is viable under the ADEA.


Employers can still defend against these types of claims by producing evidence that they based their actions on reasonable factors other than age discrimination ("RFOA"). In this case, the Court found that the employer took seniority and rank into account, and thus relied on a reasonable factor other than age, so the officers actually lost their lawsuit because of this RFOA exception.

This exception recognizes that there are factors which often closely correlate with age, but are not the same as age itself (for example, years of experience or seniority). Unlike with race or national origin, some courts say that age may have "relevance to an individual’s capacity to engage in certain types of employment."


Nevertheless, employers must be careful not to violate the law in mass layoff or "reduction-in-force" situations, where the group of those laid off contains more older workers, and the group of those retained contains more younger workers, especially where the layoffs seem to target higher-salaried employees or those soon eligible for retirement benefits.


Workers who think that a policy is negatively affecting them based on their age, if they are 40 or older, may consider seeking legal counsel to determine whether they have a disparate impact claim.


Employers should closely scrutinize their policies and practices (especially pay and lay off decisions) to make sure that they are not negatively impacting their 40+ employees without a reasonable basis.

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