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Gender Discrimination? Sex Discrimination? Either Way, Employers Need to Protect Themselves

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A recent Jackson Lewis Workplace Survey that charts trends and developments in workplace law and related issues found that gender discrimination charges spiked in 2004. In the survey, participants were asked, ''Was your company sued by an employee for any reason during the past year?'' Fifty-eight percent of the respondents cited gender discrimination as the basis for a charge, a substantial increase over the 48 percent who responded the same way in the law firm's 2003 survey.

<<These appear to be straightforward statistics, but what is interesting is that no one can be certain about what they mean. Do these figures support the facts that the Equal Employment Opportunity Commission (EEOC) in 2004 received more than 24,000 charges of sex-based discrimination versus fewer than 22,000 in 1992 and in 2004 recovered more than $100 million in monetary benefits versus almost $31 million in 1992? Not really, because no one is completely certain what is meant by "gender discrimination."

What is gender discrimination?

According to Michael J. Lotito, a partner in the San Francisco law office of Jackson Lewis, people now see gender discrimination as code for sexual orientation discrimination, which few jurisdictions recognize. For example, a recent Sixth Circuit Appeals Court decision, Barnes v. the City of Cincinnati, found for the plaintiff, a police officer who was being considered for promotion to sergeant. While he was participating in a three-month training program to see if he was suitable for the position, he was also undergoing a gender change. He began to act more like a female, getting a French manicure and wearing makeup. The police department decided he was not sergeant material because he did not have "command presence."

"Gender discrimination cases also involve cases about stereotypes, how men and women should behave," says Lotito. "There have been cases involving a restaurant server who was harassed because several of his male co-workers found him effeminate, and a woman, who after being with a casino for years with a perfect record, was told that she had to start wearing makeup and, when she refused, was fired."

Lotito believes there will be more of these cases. "People are more open about their sexual identity, lawyers are becoming more creative about how to argue these type of cases, and courts are struggling to find justification because they do not believe people should be treated differently simply for the reason that they do not conform to gender stereotypes."

There are no federal laws that specifically protect gender identity; in fact, no federal statutes talk about gender discrimination. California is the only state which has, to date, adopted a protected class of gender. However, in 1989, the Supreme Court in Price Waterhouse v. Hopkins held that gender role discrimination and gender stereotyping is covered under Title VII as a form of sex discrimination. "This is part of a brand new, socially acceptable concept that now, when we focus in on sex discrimination, we can be talking about the differences between men as men, and women as women," says Lotito.

Does this mean that according to the findings in the Jackson Lewis Survey, there are more lawsuits based on gender discrimination? Not necessarily. It could just mean that it is no longer socially acceptable to say sex, suggests Lotito, so people talk about gender instead. The increase may be describing an increase in all types of sex discrimination suits, instead of those just dealing with gender identity.

At-will employment is dead

What this means for your clients who are employers is that they need to be aware that there is precedent for workplace discrimination involving gender identity. "What it really comes down to," says Lotito, "is that at-will employment is dead. Employers need to know that if they do not have a rational business-related reason as to why they are making certain decisions about an employee, or they are permitting employees to pick on other employees based on stereotypes that are either being achieved or not achieved, they have a potential liability on their hands."

It is not just the increased filings of these types of claims that should concern employers. For every reported case, there are probably 20 or more similar ones threatened to be filed. These end up being quickly settled in favor of the plaintiff because the factual pattern was similar to the case that was reported. "In other words," explains Lotito, "if I am a plaintiff's lawyer and I am aware of these cases, I will send a demand letter to the employer, explaining how my client's case is very similar to one that has been won by a plaintiff, and the case will often be settled outside of court."

Help for preventing discrimination charges

The way for employers to protect their workplaces from gender discrimination claims is basically the same as protecting against sex discrimination. First, says Lotito, train, train, train. If you do not train your management and supervisors in fundamental principles of employment law, he asserts, it is the equivalent of corporate negligence. Lotito even suggests using scenarios in training classes that have to do with gender-related issues, to help promote sensitivity to the issue.

Employers should also be counseled to make sure they have very robust complaint-resolution systems. Individuals should have a variety of opportunities as to where they can register complaints. Also, if employers are taking an adverse employment action against an employee, they should make certain to do some formal central review. They should look into what Lotito calls "emerging recognized fact patterns" with a good degree of sensitivity. In addition, they should consider getting help from in-house or outside legal counsel to help them walk through the situation, so that whatever action is being considered is going to have a minimal amount of risk.

Finally, employers should check their employment practices liability insurance policies to see what is included in the definition of a claim. Is gender discrimination one of the protected categories? If not, they may find that they bought a policy that will not offer them any protection against such a claim.