Tuesday, February 26, 2008

Sex Discrimination in a Nutshell

The Law

The main statutory (law-based) protection against sex discrimination is under federal law and is found under what is commonly called “Title VII.” The Civil Rights Act (See: 42 U.S.C. §2000e, et. seq.) provides that it is unlawful for an employer (private employers with 15 or more employees, employment agencies, and labor organizations) to “fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual because of such individual’s ...sex....” 42 U.S.C. §2000e-2(a)(1). Sexual harassment is also prohibited, though it is not specifically mentioned under the statute. The United States Supreme Court in the case Meritor Savings Bank, FSB vs. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399 (1986), held sexual harassment was in fact, an element that can be implied to exist within the statute.

After the Supreme Court and appellate courts began what was perceived to be a regression or reining in of the rights under the civil rights laws, Congress passed the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991). This law expanded the rights under Title VII and enforced the notion that victims of discrimination, including sex discrimination and harassment, were going to have substantive remedies. It also stopped the courts from making regressive rulings in certain areas of the civil law arena.

The new law expanded the remedies and rights, including the right to a jury trial, and to compensatory and punitive damages. Previously, Title VII provided equitable remedies, limited the party’s right to trial before the bench (judge), and limited damages to back and/or front pay, costs and legal fees. That was it. No punitive damages were allowed and no compensatory damages. However, the law is now that if a victim can show certain elements in her (or his) case, that Plaintiff will be entitled to damages caused by mental anguish or emotional sufferings.

There are other, lesser used statutes that may be applicable where someone has been a victim of sexual discrimination, including , 42 U.S.C. §1983, which prohibits a person acting under color of state law to deprive any person of his or her constitutional or federal rights. A Plaintiff may, if applicable, bring a claim arising under §1983, in the same complaint as the claims arising under Title VII. Other statutes may also offer protection, depending on the facts and circumstances in your case. See: 42 U.S.C. §1985; Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir. 1988); 20 U.S.C. §38; 42 U.S.C. §2000e-k; 29 U.S.C. §206(d); 29 U.S.C. §2601 et seq.

State law claims may also be brought, but in the state of Indiana, it is more common to use the broader, stronger federal laws and use the state laws to include tort claims, such as intentional infliction of emotional distress, constructive discharge, assault and battery, retaliation and defamation. Note that the mere fact that there is a wide array of available remedies does not mean you have a case or claim under any particular remedy. Every sexual discrimination case is fact sensitive. That means you must have facts that are going to support your legal claims made under any particular statute or case law upon which you base your case.

Establishing Your Case

You must have certain elements present in order to make a valid claim of sex discrimination or harassment or retaliation, or a hostile work environment (based on your gender). There are many things that can be alleged in a case, far too many to mention here. Suffice it to say, your claim must allege that because of your gender, you were singled out for treatment that was different from your co-workers of the opposite sex or that in some way, you have been targeted by an employer because of your gender, and that you have suffered harm as a result. (I have purposely made this very broad statement. I’ll clarify somewhat later.) For example, a supervisor makes unwelcome advances and makes it clear that if you do not comply, you will suffer consequences such as denial of promotion, or assignment to a less desirable position, or discharge. The question at trial to that supervisor, of course, would be whether he or she made such proposals to those of the opposite sex of yourself. (This article does not deal with same sex discrimination, which can also be actionable.)

It is not necessary that the supervisor touch you or even attempt to make an unwanted touching. It is sufficient that the proposals are made and that a job detriment occurs as a result of your non-compliance. In some instances, one may prevail even where a tangible job detriment did not occur, since the threat alone can cause mental and emotional suffering. The threat of firing or demotion can be a heavy weight to bear. In addition, having to work in an environment where you are subjected to unwelcome advances, whether by a supervisor or co-worker, is clearly a hostile environment, which is actionable.

You must prove at trial by a preponderance of the evidence that the conduct on the part of the supervisor was unwelcome. However, if you consent to the advances, you may find yourself on the losing side of a your lawsuit. It definitely will not help your case. However, it does not mean that because there was a consensual relationship that you have no case. If you broke off that relationship and refuse to continue it, and as a result you suffer a job detriment, you can still prevail. Much will depend on how the jury perceives your situation and your employer’s responses to the situation.

And that leads to another important element: You must make a complaint to your employer, even if is a situation where the owner of the business who is the main individual discriminating. If you’re confronted with a sexual harassment or discrimination situation in the workplace, ordinarily, you must inform the employer. The Court is going to want to see that the employer had (a) knowledge of the discriminatory acts; and (b) had an opportunity to remedy the situation. For example, if a co-worker is sexually harassing you and you say nothing to your employer, then you quit your job and file a complaint against your employer alleging sexual discrimination, the Court is not likely to find the employer liable (absent other evidence/factors or circumstances).

Laying a Foundation: Here are some important steps to take in laying a foundation for your case:

1. Make a verbal complaint to your superiors. Ask to speak to someone in authority, even if you think it will be pointless and that they will do nothing. This is true even if the person doing the discrimination is the President and owner of the company. If you can have a witness, great, but even if they will not allow a witness, you still should make the complaint. However, do not be shrill. Do not yell and do not threaten. It does not mean you cannot be emotional. Just don’t get mean and ugly. It’ll not help your case. Be assured that in trial, the employer will embellish your actions.

2. Memorialize the conversation. That means, within a week, follow up with a written letter that recounts the conversation. Here’s an example of how such a letter might sound where the discrimination was done by the President and owner: “Dear Mr. So and So, on (date), I met with you and told you that I did not appreciate your sexual advances and asked you to stop. You replied that you thought that I would probably move up a lot faster if I were not so uptight, implying that unless I gave in to your sexual advances, I would not advance. I told you I want this all to stop and hoped you would not hurt my career because of my refusals.” (This is only to be used as an example here. Do not copy this verbatim but instead, consult with an attorney as to the proper language and have him or her assist you in the drafting of that letter.)

You now have two important pieces of evidence in your case, should it go to court. First, you have your own testimony. Secondly, you have a written piece of evidence that is close in time to the actual conversation and that recounts or memorializes that conversation.

3. Keep a diary. Keep a written account of events. Make sure you date the events. Also, realize that everything you write will be read by your employer some day, should you end up in court. The process called “discovery” will require your attorney to turn over that diary.

Filing with the Equal Employment Opportunity Commission (EEOC)

The EEOC is a federal agency empowered to investigate and prosecute claims of discrimination. An employee must file an administrative charge with the EEOC before he or she can file a complaint in federal court (42 U.S.C. §2000e-5) It is important that you do not blow the deadlines for your case. Procedurally, you are required to file an administrative charge with the EEOC before you can file a complaint in federal court (42 U.S.C. §2000e-5).

Indiana is what is known as a “deferral” state, which means, among other things, that you have 300 days from the date of the occurrence of the discrimination to file your complaint. Note that “file” does not mean “mail.” If you mail your complaint on the last day and it is filed three days later, you have missed your deadline. In Indiana, which has offices under the Indiana Civil Rights Commission, you may file with a local office. They will then forward the complaint to the EEOC, but they do the initial intake. Or, you can go directly to the EEOC. Do not delay. If you go past the deadline, you may be unable to make a complaint because of the 300 day requirement. However, if you have discriminatory events that occur subsequently, make sure you file. Those events that are beyond the 300 day mark may still be used in your case, but your case cannot rest solely on that event.

The best thing to do, and one which is more likely to get the attention of the EEOC staffers and make your complaint more likely to receive prompt action (as opposed to prompt dismissal), is to see a lawyer and have him or her draft the complaint on the official EEOC forms. It must be notarized. The complaint is then either mailed (certified) or hand delivered, depending on your location. It is best to have a lawyer who has dealt with the EEOC, with you though the entire process, since he or she will understand the proceedings, and will give you a better chance at a successful mediation. (If you are a federal employee, it is, unfortunately, extremely important you retain counsel early in the process. It will save you from some serious mis-steps in the early parts of the process, since the administrative proceeding are somewhat complicated and confusing. Also, please be advised that the procedures discussed here are somewhat different, as are the timetables, so please don’t rely on the information given here if you are a federal employee.)

The EEOC will evaluate your complaint. A well drafted complaint with supporting documentation will get their attention and will typically result in an investigation. However, since the EEOC is understaffed, your complaint has a good chance of being found without merit. The EEOC will send you a letter stating they have no found no discrimination (called the “90 day letter”) Indeed, this is the finding of the vast majority of the complaints filed with the EEOC. Do not despair. It has no legal significance. It can’t be used against you in court. But, it does start the “clock” to ticking. At that point, you have 90 days to file your federal complaint in court.

Filing Your Complaint in Federal Court

If you have not already done so, find a civil rights attorney immediately. Do not wait until the last week. Most lawyers will not accept a case where they have to prepare a complaint within a few days. There’s way too much work to be done in the drafting of a legal complaint and typically, the lawyer will not have the time to draft it. What I have done in some instances where a client sought my assistance at the last minute is to have the client prepare their own complaint. These are forms that are available at the Clerk’s Office in federal court. The client prepared the complaint (filled out the blanks), filed it, then returned a copy to me. I then began preparing an Amended Complaint. If you’re running up on your 90 day deadline and you don’t have a lawyer, at least get into the Clerk’s Office, get a form, fill it out and file it. That way, you will have stopped the clock and your rights are preserved.

The Process in Federal Court

It is a process that can be confusing to those who have never been there. The first thing that is done is to send the employer (the Defendant) a copy of the lawsuit–the complaint (and to any other defendants that you may have named in your complaint). Thereafter, they will file an Answer, which is a response to your lawsuit.

Sometimes, they may file for an immediate dismissal (if, for example, you missed your deadline). The Court will schedule an initial conference between the lawyers for each side. This is to arrange certain dates and for the judge and the lawyers to get a feel for the cases insofar as time and scheduling. Certain information will be exchanged by the parties. There will be a “discovery” period of time where the parties will take depositions (oral questioning of witnesses, including the Defendant and the Plaintiff), and production of documents that are important to the case. In addition, there will be written questions sent by each side to the other called “interrogatories.”

Finally, at some point, usually after discovery, there will probably be a Summary Judgment Motion filed by the Defendant. This is a legal document filed by the employer asking the Court to dismiss the case of the Plaintiff because of a failure to state a legal claim that can be supported by the evidence. It is beyond this article to explain all the legal standards surrounding such a motion. Suffice it to say that in employment cases, they are almost always filed, and are often successful.

Assuming the Court denies the Motion for Summary Judgment, the case proceeds to trial. Much work is involved. There are many documents to assemble and an enormous amount of work by the attorney to prepare for trial. There are Motions to prepare, Jury Instructions, Trial Briefs, and depending on the case, there may be a need for legal experts. All the witnesses will require time for the attorney to develop, as well as preparing and assembling the necessary documents, including “demonstrative” evidence (“show and tell”). It is an arduous task requiring an enormous amount of time.

By the time you get to trial, more than a year will likely to have passed. The trial may take a week or more. At the end, a verdict is rendered. If you asked for a jury (and you should), the jury will return a verdict. After that, if you win, the Defendant may appeal. Or, if you lose, you may decide to appeal.


This has been an effort to give you the basics of a sex discrimination case in a “nutshell.” There are far too many variables to treat every circumstance in this article. For example, I’ve not touched on federal employees, though they enjoy the same protections, but have a somewhat different process on their journey to federal court (once in federal court, the process is the same). And, in most civil rights cases, there are genuine efforts by the parties to seek a settlement (which is where the Defendant pays more than they think they should have to pay, and the Plaintiff gets less than she thinks she deserves).

The information provided here is not designed to provide specific legal guidance for any individual who may have a claim. You should consult a lawyer who is experienced in this area of law in order to determine whether you have a case, and to assist you in preparing it, assuming you do have a case. The information here is merely designed to give you a broad overview of how the system works.

Copyright 2008 Voyle A. Glover


Anonymous said...

I love your blog - because it confirms so much of what I learned the hard way. I filed a sex discrimination suit against a school district in 1987, won in federal district court in 1990, got the job of high school principal provided by the court's injunctive relief in 1992. Shortly after that, the retaliation started and continued until I retired in 2001. I challenged the retaltion and lost that in summary judment in 2001. I've learned way more than I ever wanted to know. I wrote a book about my experiences as a plaintiff - Plaintiff Blues - and have a website, www.plaintiffblues.com. There's a link on the webiste to my blog, www.plaintifblues.blogspot.com - check it out. Keep up the good work!

voyle glover said...

Sounds like you've got some first-hand experience. I will definitely check out your blog.

Sad reality is that the employer typically has the $$ to throw at the case, while the plaintiff, who is often just struggling to survive financially, can't compete.