Equal opportunity harassment
One of the curious differences between California and federal anti-discrimination law is that the Fair Employment and Housing Act (FEHA) expressly prohibits harassment, while Title VII does not.
Instead, Title VII only prohibits "discrimination" but does not mention harassment. However, when harassment is directed toward only one sex (or race, or religion, etc.), this "discriminatory" harassment is forbidden by federal law.
Accordingly, federal law permits what I call the "bisexual defense." In other words, if a supervisor sexually harasses both men and women equally, this misconduct would not violate Title VII (since it's not "discriminatory") but it would violate FEHA (which specifically forbids sexual harassment). For a story on this point, see this case.
Although Title VII does not prohibit an "equal opportunity" (non-discriminatory) harasser, recent cases are showing that an abusive boss might nevertheless violate federal law if the impact of the abuse falls more heavily on one sex rather than another.
For example, this case involves a workplace in which dirty jokes were shared with both men and women, but which typically demeaned the women and thus had a discriminatory impact. Likewise, in this case a female supervisor at the Navy submarine base in Groton CT, though vulgar and abusive to both men and women, may have directed some of her abuse at her subordinates based on their gender (male), and hence may have violated Title VII.
Instead, Title VII only prohibits "discrimination" but does not mention harassment. However, when harassment is directed toward only one sex (or race, or religion, etc.), this "discriminatory" harassment is forbidden by federal law.
Accordingly, federal law permits what I call the "bisexual defense." In other words, if a supervisor sexually harasses both men and women equally, this misconduct would not violate Title VII (since it's not "discriminatory") but it would violate FEHA (which specifically forbids sexual harassment). For a story on this point, see this case.
Although Title VII does not prohibit an "equal opportunity" (non-discriminatory) harasser, recent cases are showing that an abusive boss might nevertheless violate federal law if the impact of the abuse falls more heavily on one sex rather than another.
For example, this case involves a workplace in which dirty jokes were shared with both men and women, but which typically demeaned the women and thus had a discriminatory impact. Likewise, in this case a female supervisor at the Navy submarine base in Groton CT, though vulgar and abusive to both men and women, may have directed some of her abuse at her subordinates based on their gender (male), and hence may have violated Title VII.
This entry was posted
on Tuesday, May 03, 2005 at 9:18 PM.
