Sex, Gender, and Sexual Orientation Discrimination in the Workplace

Updated: Sep 11

What a business in Washington State needs to know about sex, gender, and sexual orientation discrimination under federal law.

What is the law?

Title VII of the Civil Rights Act was passed to protect employees from workplace discrimination based on attributes that have no bearing on job performance. This can include sex-based discrimination, but it also includes these categories: race, skin color, national origin, and religion.


Which employers are responsible for complying with Title VII?

Employers, employment agencies, and labor unions in the private and public sector with 15 or more employees are covered by Title VII. However, this rule only applies specifically to Title VII of the Civil Rights Act. States often have their own discrimination laws, and even some cities. Moreover, if the situation is only covered by Title VII discrimination law, there could still be other claims an employee could bring based on contract and tort law, depending on the nature of the workplace discrimination and harassment.


When does an employee have a case?

Some sex discrimination is direct. An employer takes an adverse employment action against the employee (firing, demotion, pay decrease, etc.) solely based on their sex. Other times it involves ongoing harassment based on sex, that reaches the level where the employee is forced to quit for mental health reasons. This is called"constructive discharge," because the employee wasn't actually fired from the job, but the employer is treated as if they did, because the employer was responsible for the forced resignation. Evidence from a mental health professional, regarding the damaging effects from the workplace, is usually needed to build these cases.


An employer can't monitor every dirty joke. Title VII wasn't intended to ensure that no one is offended in the workplace. But if bad behavior is known, and the employer doesn't put a stop to it, that's when liability ensues. Any WA business wants to have a written policy about how to report workplace discrimination and harassment. That way the business can nip the problem at the bud. A WA attorney can draft a business draft a good discrimination policy.


What's new with gender and sexual orientation discrimination?

Title VII only refers to "sex," which is a concept distinct from gender and sexual orientation. Until recently, there was no Supreme Court precedent telling us whether gender discrimination and sexual orientation are included in Title VII's sex category. But in Bostock v. Clayton County, the Supreme Court ruled plainly that, "An employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964." This is because, except for the employee's biological sex, their identity as gay or transgender would not have caused the employer to mistreat them.

If you have more questions about workplace discrimination and harassment in Vancouver, Washington, please contact In-house | On-site to speak with a Vancouver WA lawyer.

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