When are workplace behaviors sexual discrimination?

Factual Questions
1

This might end up in GD but I’m starting this here to see if there are legal definitions/decisions or standard personnel policies that address this. I had a boss fired for sexual discrimination because he would hang out with female employees and some men felt that made an unfair supervisory environment. It was BS, he and I were working a booth at a job fair and he really tried to mentor me but it struck me still to this day that socializing with women was “discrimination”.

Suppose I give out gifts to all of the women in my office on March 8th. Does it matter if I am a boss or a worker? Does the expense of the gifts matter? What if I’m the boss ask the guys in my office what their favorite cigars are but not the women? What if after the conversation I give the men that work nice cigars but no women? When are those behaviors illegal discrimination? When will the company start to worry and tell the boss to cool down the gender-based favoritism?

2

I’m not expert, but you might need to distinguish between “discrimination” and harassment or ‘hostile work place’.

Also your boss could be fired simply because he hung out with certain people, not because of discrimination. For an “at-will” state, he could have been fired for any number of reasons including showing favoritism, or the air of showing favoritism, or that his hair was too long, or that his job was no longer needed, or he just irritated his bosses best friend.

My layman’s view of a lot of this without the backing of real knowledge is that harassment, and hostile work place can be largely defined by who feels harassed. …which makes a very difficult concept to codify. It all could depend on what the person receiving the behavior perceives it as.

Including; joking with the lady in the next desk…ok she doesn’t mind
Your creepy colleague making the same jokes to the same lady … if she’s uncomfortable…he’s out of there.

3

Firing someone is going to be an internal policy. There’s usually a big gap between what will get a person fired and what can lead to a lawsuit. The latter is something easier to define, the former will vary from organization to organization.

4

Sexual harassment falls under two basic premises. One is “quid pro quo” sexual harrassment and the other is creating a hostile working environment.

The first is fairly easy to recognize because quid pro quo is “something for something.” You give me sex, I won’t fire you. You give me sex I will give you a raise.

It’s an offer and that is easily seen. Proving it may be harder but it’s not terribly ambiguous. It follows up with a “no means no” doctrine, which is the first time someone does it, it’s not necessarily quid pro quo, though it could be, if you decline it (no means no) then it becomes quid pro quo.

Creating a hostile working environment falls under the “umbrella” of sexual harassment but does not need to involve sex at all.

You have to understand a hostile working environment is not the same as an unpleasant one. Lots of people are miserable jerks and they they are only happy when they make someone else more miserable. Being a jerk is not illegal.

A hostile working environment is one that makes it virtually impossible for a “reasonable” person to perform their work duties. Who decides what’s reasonable? The H/R department, the company, and finally, if need be, the court system.

In the OP case it’s impossible to know for sure, if said actions constituted an environment that made it impossible for the others to do their job to a “reasonable” standard.

In the OP hypothetical, again giving gifts to certain employees and not others is perfectly acceptable provided you aren’t discriminating against a protected class.

Everyone belongs to at least three protected classes, Sex, Race and Religion (atheism falls under this). Sexual Orientation is probably also included (The EEOC has said it was but it’s not been thoroughly tested in courts yet). Also people over 40 are a protected class, those under 40 are not. In addition states and local governments (county and city) may have more protected classes, for example Michigan is the only state that puts weight into a protected class.

So a person can be let go for sexual harassment even though it has nothing to do with sex, because hostile working environment falls under the umbrella.

5

I was careful to leave out harassment. It’s about when disparate treatment turns into discrimination - either legal or will get you fired.

6

From the US EEOC web site:

7

I’m a little interested in this topic because I once had a potential creating a “hostile work environment ” threat against me in grad school.

But, it turns out, the woman involved had a history of accusing the college professors of the classes she was taking and and accusing them of failing of sexual performance.

“I wouldn’t go out with them, so they failed me!”

I was a lab manager and actually called her out on her stupidity. She called me an asshole in front of the whole lab. A few days later, she threatened me with sexual harassment or creating a hostile workplace.

I was like, there’s no sexual resentment with you and you called me an asshole in front of the entire lab. If anything, I’ll counter your claim with your own accusation, you’re creating a hostile environment with regards to me doing my job. (as an aside, even after our disargrmments, she still wanted to invite me on day sail boat trips–Why the fuck would I ever want to get trapped on a boat with her!

And, everyone else in the lab thought she was nuts! They’re were like, if we have to testify dasmoocher, we’re on your side.

Her claim was swiftly dropped. What was scary, was just after a week or two, the post-doc and me were giving our PI shit that he had just hired a crazy person.

8

I hope you weren’t teaching English, Dasmoocher. I find that pretty hard to understand.

I had a driver who worked for me. A guy in his 60s; clean, smart and an excellent worker. Unfortunately he saw himself as a bit of a father figure to the younger women and would put a friendly arm around a shoulder, or offer a hug. Now, I can’t possibly know what he was thinking at the time, but when someone made an official complaint, he was lucky to keep his job. He claimed that he was trying to be kind and had no ulterior motive.

What seemed important here was his failure to see that some (but not all) the women were uncomfortable around him so he was given an official warning. He was so upset about it that he handed in his notice soon after.

9

In the US, “will get you fired” is at the random whim of your boss; no more and no less. Unless he/she is discriminating against a protected class by doing it to you.

In the US, “legal discrimination” is any job-related disparate treatment because of membership (or not) in a protected class. Sex is a protected class. Since that square is filled in your scenarios, the remaining question becomes whether giving gifts or cigars or whatever is sufficiently “job-related.”

If there’s a pattern that the boss only gives gifts to the guys, only lunches with the guys, and by and large only promotes the guys while ignoring the women & treating them as disposable nonentities rather than valued career workers then you’ve got that job-related discrimination square filled very thoroughly. The company keeps that boss at very real peril to themselves.

What if instead the boss promotes and mentors scrupulously equally, but only lunches with the guys? Probably not a violation that’d stand up in court, but it smells fishy and might attract a worker complaint and an EEOC investigation.

In reality that behavior pattern is so unlikely as to be a straw-man in a self-serving “it’s just a technicality” whine. Anybody who only lunches with the guys is already seeing the women as a separate class. Separate is inherently unequal even if the boss honestly believes he/she isn’t being unequal. IOW 99% chance the boss is mistaken if he/she thinks he’s/she’s not actually discriminating in areas besides lunch.

So the unequal lunching isn’t illegal for the lunch. It’s illegal for what it says about what goes on in the rest of the boss’s discretionary acts as boss.

Keeping symptoms & causes straight is important.

10

While that is generally true, it’s not true in the 11 states which recognize an implied covenant of good faith in employment contracts.

11

How did you find out that he was fired for ‘sexual discrimination,’ in particular who exactly used the phrase? People often lie about why they were fired, and companies often don’t release that information to coworkers. If he’s hanging out with part of the employees but not others, that’s showing favoritism and might not be acceptable. If he’s sleeping with some of the women he supervises, that’s also usually against policy. Generally if you’re a supervisor and you do things for part of the people you supervise but not all, it shows favoritism. How much picking favorites you can get away with depends on you and the company. If you’re playing favorites based on a protected class like gender or race, the bar for ‘whoa WTF’ is way lower, especially at a large company.

It’s not directly illegal to give, say, all of the black guys basketball tickets and coupon for fried chicken while giving the white guys golf tickets and white bread coupons, and the women makeup and kitchenware coupons. But it makes it much, much easier for a black guy or woman who later claims that they were fired or passed over for promotion because of their race or sex to show that the company was biased when there’s such obvious, open discrimination happening. Also even without lawsuits, it’s very likely to piss employees off if you’re pushing tired stereotypes.

12

It’s worth noting that they may be a big difference between #1 the actual reason an employee gets fired, #2 the reason which they told to the employee, and #3 the reason which the employee goes around telling to other people. I suspect that the OP is talking about #3, which may be completely different from #2, let alone #1.

13

Not disputing you, but would you happen to have a list of those 11 states?

I’m curious which they are and whether there’s a discernable pattern to them. Besides having some common sense applied to employment law. Serfdom went out a few centuries ago. Much to corporate America’s chagrin.

14

Sbunny, I know of a situation where a person was running their own travel agency based off of the corporate travel agency. They would arrange vacations for people, book flights and hotels using the corporate discount and corporate credit, and pay it off quickly enough that accounting didn’t look into it for a long time. This was completely unacceptable to the company, but hard to show quickly and it could be argued that there wasn’t an explicit policy against it. So they simply documented him turning up to work late 3 times (or something like that) and fired him with that as the official reason so there was no question of validity. The person generally tells people that he was fired because the supervisor had a grudge against him for doing too good at certain numbers and making the boss look bad.

15

As far as I know, this one is still accurate:

No real pattern, except that you might say western states are more likely to recognize the doctrine.

16

Just to clarify. I knew he was investigated for sexual discrimination based on
The guys that told me they reported him and why.
The questions I was asked by HR.
My contacts in the district.

Because he was under contract, he was technically fired for unauthorized use of district equipment. It was a bullshit charge and I don’t feel comfortable being specific but I will say that morally he did the right thing and under normal circumstances it would have been ignored under the rules of “it was technically a violation of the rules but you did the right thing”.

17

I’ve seen both sides of this. I had a buddy get fired just because a female coworker accused him of hitting on her. Not to be insulting but not in her wildest dreams could that have happened. The company just flat-out fired him to avoid the bother of an investigation because they could. He’d been there for years, her two months.

At another job, I personally witnessed a coworker be told that he would not allow her to transfer to his crew because “girls whine too much”. She put in a grievance and even later tried to put a lawsuit together (I was a witness) but nothing came of it.

The rules are weird and what seems pretty black-and-white often isn’t.

18

Sorry–I was a little buzzed and the topic struck home with me at the posting time, so I posted. But no worries–it was a hard science lab. I’ll use “her/she” to refer to the whackjob.
But, part of the point I guess I failed to make, was if you didn’t recognize her genius in her mind–you were discriminatory against her! And it could be sexual! Because…well, she’s a woman and she thought she was so, so desirable to all males.

It’s not like she ever considered the fact that she was stupid/ignorant*. Although, probably the entire department considered her–to use scientific terminology–to be whacked out of her gourd.

A classic example of the Dunning–Kruger effect. This would have made a psychology textbook.

*I actually saved her emails to me as future protection against any claims she might make. In one case, she blatantly laid out her ignorance on one topic of discussion in an email to me and our adviser. She was so misguided that my adviser basically said arguing with her was like kicking a puppy.

19

Yeah, there’s a certain portion of men that don’t seem to get that Touching is Not OK. Although I rarely believe it’s a “kindly” thing, mostly it’s a power grab. I can touch you if I want to, sort of thing.

I remember being at a training a few cities away and my boss’s boss’s boss showed up and abruptly put his hands on my shoulders and squeezed, and said, “Mika’s the best! Mika’s my girl.” Sounds like a compliment but I really hope he noticed how I literally squirmed away from his touch. He never did it again so I didn’t have to go further but dear god almighty, touching is not ok!

20

People - not just men; women are guilty of this as well, and often seem even more prone to not see it as a problem. “You should feel lucky a woman wants to touch you!” Which is why I hate that Mindy whoever commercial where she thinks she’s invisible. I once had a co-worker say that after attempting to tuck a loose shirttail into the front of my pants. As you said - Not OK.