法律英语：118 Sex Discrimination

by Michael W. Flynn
 
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.   

 

Today’s episode is the second in a series on employment discrimination. In last week’s episode, I discussed the basic federal laws that protect various classes of employees. Today I will discuss what an employee or applicant⁴ must prove in order to prevail in a lawsuit⁵ for sexual harassment⁶ or sex discrimination.

 

As discussed in the last episode, sex-based discrimination and sexual harassment are prohibited by Title VII of the Civil Rights Act, as well as many state statutes⁷. Before jumping into what a plaintiff must prove in order to prevail, I’d like to mention the procedural posture⁸ of a Title VII case. A plaintiff cannot immediately sue the employer when he thinks he has been wronged.  First, the employer must file his grievance⁹ within 180 days with the Equal Employment Opportunity Commission (EEOC), the administrative¹⁰ body charged with enforcing Title VII. After the EEOC reviews the case, the EEOC will generally either act on the plaintiff’s behalf, or give a “right to sue” letter to the plaintiff. Only after the plaintiff receives this letter can he file in court. The point of this system is to allow the EEOC the ability to quickly resolve cases without clogging¹¹ up the courts. 

 

Discrimination based on sex can take many forms. In the most basic example, an employer will choose not to hire, or choose not to promote a person on the basis of that person’s sex. This is known as intentional¹² discrimination, also called disparate treatment. That is, the employer intentionally¹³ treats an employee or applicant differently than it would have if the person had been a different sex. Both men and women can be the victims of sex discrimination. 

 

One common defense¹⁴ against an accusation¹⁵ of intentional sex discrimination is where a bona fide occupational qualification is reasonably necessary to the normal operation of the particular business for which the exception is claimed. A very common example is the practice of hiring only women to work in women’s locker¹⁶ rooms. Courts have held that the requirement of being female is reasonably necessary to the operation of the facility maintaining the locker room in a manner that protects patrons’ privacy interests. However, an airline cannot only hire women flight attendants on the grounds that the mainly-male clientele prefers to be served by women during a flight. In that situation, courts have held that there is nothing about being female that is related to the tasks of being a flight attendant, and the clientele’s misogynist¹⁷ attitudes towards women are not something that the airline needs to accommodate in order to perform its task of transporting passengers.  

 

Another common form of sex discrimination is disparate impact. This type of discrimination occurs when a facially neutral policy has the effect of discriminating¹⁸ against one sex. A common example is a height-weight requirement. An employer might maintain a policy that nobody under 5’8” can be hired. On its face, this policy does not discriminate¹⁹ on the basis of an applicant’s sex – it only discriminates²⁰ on the basis of the applicant’s height. But, this policy will surely shut out more women than men because women are far more likely to be under 5’8” than men. So, the policy will have a different impact on women than it will on men.

 

But an employer can still use such a requirement in some circumstances: where the requirement is closely related to job performance. For example, the state of Alabama once had a height-weight requirement for all prospective²¹ prison guards. The state refused to hire a woman for failing to meet the requirement, and she claimed sex discrimination. The state argued that guards had to be strong enough and tough-looking enough to handle the prisoners. The Supreme²² Court rejected the argument, noting that height-weight were not necessarily accurate measures of strength. However, strength and physical ability tests are sometimes upheld for law enforcement personnel when the policy is tailored properly to actually measure strength. 

 

Next, let’s move to sexual harassment. There are two main categories of sexual harassment under Title VII: quid pro³ quo, and hostile work environment. In the quid pro quo scenario²³, a plaintiff must generally show that benefits of employment were based on sexual acts. For example, an employer would be liable for quid pro quo harassment if only employees who had sex with their bosses were given bonuses. 

 

The second category of sexual harassment is called hostile work environment. To prevail, a plaintiff must show that the workplace is permeated²⁴ with discriminatory behavior that is sufficiently²⁵ severe or pervasive²⁶ enough to create a discriminatorily hostile or abusive work environment. A court will consider (1) the frequency of the discriminatory conduct; (2) its severity: whether it is physically²⁷ threatening or humiliating, or a mere²⁸ offensive utterance²⁹; and (3) whether it unreasonably³⁰ interfered³¹ with an employee's work performance. For example, if male employees leave the latest copy of Playboy open in the lunchroom every day, the environment is likely hostile. However, if one employee tells a sexist joke once at a company picnic, this would not likely be considered hostile. 

 

Well, that’s your crash course on sex discrimination and sexual harassment. These two areas of the law are very factually specific, incredibly complex, and evolving constantly. This series on employment discrimination will continue periodically, and cover topics including race discrimination, age discrimination, and disability discrimination. 

 

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful³² Life. Don’t forget to check out all the fantastic Quick and Dirty Tips podcasts such as Money Girl’s Quick and Dirty Tips for a Richer Life.

 

You can send questions and comments to。。。。。。or call them in to the voicemail line at 206-202-4LAW.  Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 pro   

n.赞成，赞成的意见，赞成者

参考例句：

• The two debating teams argued the question pro and con.辩论的两组从赞成与反对两方面辩这一问题。
• Are you pro or con nuclear disarmament?你是赞成还是反对核裁军？

4 applicant   

n.申请人，求职者，请求者

参考例句：

• He was the hundredth applicant for the job. 他是第100个申请这项工作的人。
• In my estimation, the applicant is well qualified for this job. 据我看, 这位应征者完全具备这项工作的条件。

5 lawsuit   

n.诉讼，控诉

参考例句：

• They threatened him with a lawsuit.他们以诉讼威逼他。
• He was perpetually involving himself in this long lawsuit.他使自己无休止地卷入这场长时间的诉讼。

6 harassment   

n.骚扰，扰乱，烦恼，烦乱

参考例句：

• She often got telephone harassment at night these days.这些天她经常在夜晚受到电话骚扰。
• The company prohibits any form of harassment.公司禁止任何形式的骚扰行为。

7 statutes   

成文法( statute的名词复数 )； 法令； 法规； 章程

参考例句：

• The numerous existing statutes are complicated and poorly coordinated. 目前繁多的法令既十分复杂又缺乏快调。 来自英汉非文学 - 环境法 - 环境法
• Each agency is also restricted by the particular statutes governing its activities. 各个机构的行为也受具体法令限制。 来自英汉非文学 - 环境法 - 环境法

8 posture   

n.姿势，姿态，心态，态度；v.作出某种姿势

参考例句：

• The government adopted an uncompromising posture on the issue of independence.政府在独立这一问题上采取了毫不妥协的态度。
• He tore off his coat and assumed a fighting posture.他脱掉上衣，摆出一副打架的架势。

9 grievance   

n.怨愤，气恼，委屈

参考例句：

• He will not easily forget his grievance.他不会轻易忘掉他的委屈。
• He had been nursing a grievance against his boss for months.几个月来他对老板一直心怀不满。

10 administrative   

adj.行政的，管理的

参考例句：

• The administrative burden must be lifted from local government.必须解除地方政府的行政负担。
• He regarded all these administrative details as beneath his notice.他认为行政管理上的这些琐事都不值一顾。

11 clogging   

堵塞，闭合

参考例句：

• This process suffers mainly from clogging the membrane. 这种过程的主要问题是滤膜的堵塞。
• And you know that eyewitness that's been clogging up the airwaves? 你知道那个充斥着电视广播的目击证人？

12 intentional   

adj.故意的，有意（识）的

参考例句：

• Let me assure you that it was not intentional.我向你保证那不是故意的。
• His insult was intentional.他的侮辱是有意的。

13 intentionally   

ad.故意地，有意地

参考例句：

• I didn't say it intentionally. 我是无心说的。
• The local authority ruled that he had made himself intentionally homeless and was therefore not entitled to be rehoused. 当地政府裁定他是有意居无定所，因此没有资格再获得提供住房。

14 defense   

n.防御，保卫；[pl.]防务工事；辩护，答辩

参考例句：

• The accused has the right to defense.被告人有权获得辩护。
• The war has impacted the area with military and defense workers.战争使那个地区挤满了军队和防御工程人员。

15 accusation   

n.控告，指责，谴责

参考例句：

• I was furious at his making such an accusation.我对他的这种责备非常气愤。
• She knew that no one would believe her accusation.她知道没人会相信她的指控。

16 locker   

n.更衣箱，储物柜，冷藏室，上锁的人

参考例句：

• At the swimming pool I put my clothes in a locker.在游泳池我把衣服锁在小柜里。
• He moved into the locker room and began to slip out of his scrub suit.他走进更衣室把手术服脱下来。

17 misogynist   

n.厌恶女人的人

参考例句：

• He quickly gained the reputation of being a misogynist.他很快地赢得了“厌恶女性者”的这一名声。
• Nice try,but you're a misanthrope,not a misogynist.不错了，你讨厌的是世界，不是女人。

18 discriminating   

a.有辨别能力的

参考例句：

• Due caution should be exercised in discriminating between the two. 在区别这两者时应该相当谨慎。
• Many businesses are accused of discriminating against women. 许多企业被控有歧视妇女的做法。

19 discriminate   

v.区别，辨别，区分；有区别地对待

参考例句：

• You must learn to discriminate between facts and opinions.你必须学会把事实和看法区分出来。
• They can discriminate hundreds of colours.他们能分辨上百种颜色。

20 discriminates   

分别，辨别，区分( discriminate的第三人称单数 )； 歧视，有差别地对待

参考例句：

• The new law discriminates against lower-paid workers. 这条新法律歧视低工资的工人。
• One test governs state legislation that discriminates against interstate commerce. 一个检验约束歧视州际商业的州立法。 来自英汉非文学 - 环境法 - 环境法

21 prospective   

adj.预期的，未来的，前瞻性的

参考例句：

• The story should act as a warning to other prospective buyers.这篇报道应该对其他潜在的购买者起到警示作用。
• They have all these great activities for prospective freshmen.这会举办各种各样的活动来招待未来的新人。

22 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

23 scenario   

n.剧本，脚本；概要

参考例句：

• But the birth scenario is not completely accurate.然而分娩脚本并非完全准确的。
• This is a totally different scenario.这是完全不同的剧本。

24 permeated   

弥漫( permeate的过去式和过去分词 )； 遍布； 渗入； 渗透

参考例句：

• The smell of leather permeated the room. 屋子里弥漫着皮革的气味。
• His public speeches were permeated with hatred of injustice. 在他对民众的演说里，充满了对不公正的愤慨。

25 sufficiently   

adv.足够地，充分地

参考例句：

• It turned out he had not insured the house sufficiently.原来他没有给房屋投足保险。
• The new policy was sufficiently elastic to accommodate both views.新政策充分灵活地适用两种观点。

26 pervasive   

adj.普遍的；遍布的，(到处)弥漫的；渗透性的

参考例句：

• It is the most pervasive compound on earth.它是地球上最普遍的化合物。
• The adverse health effects of car exhaust are pervasive and difficult to measure.汽车尾气对人类健康所构成的有害影响是普遍的，并且难以估算。

27 physically   

adj.物质上，体格上，身体上，按自然规律

参考例句：

• He was out of sorts physically,as well as disordered mentally.他浑身不舒服，心绪也很乱。
• Every time I think about it I feel physically sick.一想起那件事我就感到极恶心。

28 mere   

adj.纯粹的；仅仅，只不过

参考例句：

• That is a mere repetition of what you said before.那不过是重复了你以前讲的话。
• It's a mere waste of time waiting any longer.再等下去纯粹是浪费时间。

29 utterance   

n.用言语表达，话语，言语

参考例句：

• This utterance of his was greeted with bursts of uproarious laughter.他的讲话引起阵阵哄然大笑。
• My voice cleaves to my throat,and sob chokes my utterance.我的噪子哽咽，泣不成声。

30 unreasonably   

adv. 不合理地

参考例句：

• He was also petty, unreasonably querulous, and mean. 他还是个气量狭窄，无事生非，平庸刻薄的人。
• Food in that restaurant is unreasonably priced. 那家饭店价格不公道。

31 interfered   

v.干预( interfere的过去式和过去分词 )；调停；妨碍；干涉

参考例句：

• Complete absorption in sports interfered with his studies. 专注于运动妨碍了他的学业。 来自《简明英汉词典》
• I am not going to be interfered with. 我不想别人干扰我的事情。 来自《简明英汉词典》

32 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。