GENDER DISCRIMINATION

Gender or sex discrimination in the United States has a long tradition, partaking of a much wider phenomenon of discrimination against women that is both ancient and global. Only recently have social movements and laws in the industrialized countries recognized the right of women to own property, vote, marry whom they choose, limit the number of children they will bear, or have equal opportunities in the workplace.

Yet in many parts of the world, discrimination based on gender is still deeply entrenched; worldwide, women tend to have less access to education, training, and opportunities for employment than men, and women are often given no meaningful legal protections against serious injury and murder by spouses and strangers. Worldwide, a comprehensive 1989 survey of women concluded that in most countries women were "poor, pregnant, and powerless." In many countries, women are still regarded as the property of men, are denied access to birth control information, are not allowed to vote, and are prohibited from working with men. In patriarchal societies, being born female can be fatal, as male children are greatly preferred. In many countries, young girls (and some boys) are sold by their families into the prostitution trade. During the 1990s, the problem of trafficking in women and girls for forced labor, domestic servitude, or sexual exploitation had affected an estimated one to two million women and girls. The economic collapse in Asia (1997-98) exacerbated such trends.

Many countries have subscribed to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted by the United Nations General Assembly in 1979. Article 2 of the Convention provides that states agree to pursue a policy of eliminating discrimination against women and take appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices that constitute discrimination against women. Yet in subscribing to the Convention, many countries note that they will not adhere to Article 2's direction. The United States was active in the drafting of CEDAW, but the Senate has not formally considered ratifying the treaty since 1994. As of 1998, 161 countries have ratified CEDAW, including most nations of the European Union.

In the United States, even without ratification of CEDAW, a number of statutes and decisions since World War II have provided women with protections against various forms of discrimination, particularly in the workplace. Historically, the common law of most states allowed employers to hire and fire at will unless their right to do so was limited by contract or statute. Under this system, white men dominated the labor market. It was also common for states to legislatively limit the kinds of work that women could do. The usual justification for such laws was the protection of women, yet the prohibited jobs typically paid considerably more.

During World War II, however, the contribution of women in industry to the war effort became obvious, and it was more and more difficult to maintain arguments based on protection. In 1964, during debate on Title VII of the Civil Rights Act, a southern legislator and civil rights opponent, Judge Howard Smith, offered to amend Title VII by including sex as a prohibited basis of discrimination in hiring, firing, or working conditions. His hope was to weaken the bill, which was primarily directed at problems of racial inequality, but the bill passed anyway.

Title VII prohibitions on sex discrimination have given significant help to women seeking equality in the workplace. Yet 35 years after passage of Title VII, nearly 80 percent of female workers were in "women's work," as secretaries, administrative support workers, and salesclerks. In 1993 only 19 of the 4,000 Fortune 500 officers and directors were women, and more than half the Fortune 500 boards had no women as members. A 1989 New York Times poll of women found that job discrimination was the most important problem facing women; by 1999, the number one concern among 63 million working women in the United States was the persistent male-female wage gap. As of 1997 women were earning about 75 cents for every $1 that men made. This gap has narrowed slightly since 1980, but may be as much attributable to lower earnings by men rather than progress by women, according to the Institute for Women's Policy Research in Washington.

Despite significant gains among women in U.S. business and political life by 1990,80 to 90 percent of women said they suffered from job discrimination and unequal pay, and gender discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) rose nearly 25 percent in the 1980s. When Congress revisited civil rights legislation in 1991, its amendments to the 1964 Civil Rights Act included the establishment of a Glass Ceiling Commission to investigate barriers to female and minority advancement in the workplace.

What follows is a discussion of the specific rights created by U.S. federal and state laws relating to sex discrimination in the workplace.

U.S. FEDERAL LAWS MANDATING
GENDER EQUALITY IN THE WORKPLACE

Title VII of the Civil Rights Act of 1964 is the primary federal law establishing gender equality in the workplace. The other laws are the Equal Pay Act of 1963, the Pregnancy Discrimination Act of 1973 (which says that sex discrimination includes bias against women because of pregnancy) and Executive Order 11246. In 1994 Congress enacted the Violence Against Women Act. Its primary objective was to deal with federal criminal offenses for violence against women. It has recently been extended, however, in two federal district court cases to also apply in the employment setting to individual supervisors.

Title VII and the Equal Pay Act were established in accordance with Congress's powers under the Commerce Clause of the U.S. Constitution; employment discrimination was deemed by Congress to sufficiently affect interstate commerce, and the exercise of federal power in this area has been upheld by the courts as constitutional.

EOUAL PAY ACT.

The Equal Pay Act of 1963 forbids only sex discrimination regarding pay, directing that men and women doing equal work are to receive equal pay. While the terms of the legislation are genderneutral, and men could conceivably be plaintiffs, the typical plaintiff is a woman, and she must show the court that she has received lower pay than a male employee who performed substantially the same work for the same employer. "Substantial equivalence" can be shown where the two jobs involve (1) equal effort, (2) equal skill, (3) equal responsibility, and (4) similar working conditions. Once these elements are established by the plaintiff, the defendant may show that the pay disparity is justified by (1) seniority, (2) merit, (3) quality or quantity of production, and (4) any factor other than sex. For any of the first three defenses, employers cannot rely on subjective estimates but must offer fairly precise criteria that are equally applied and communicated to all employees. The fourth defense is a catch-all category, which may include practices such as paying more for certain less-desirable shifts.

Remedies for successful claimants under the Equal Pay Act include recovery of back pay. Plaintiffs may also receive an equal amount as liquidated damages. Unlike Title VII actions, claimants need not pursue administrative remedies through the EEOC, even though the EEOC enforces the Equal Pay Act.

EXECUTIVE ORDER 11246.

Under Executive Order 11246, first signed into law by President Lyndon B. Johnson in 1965, employers who contract to furnish the federal government with goods and services of $10,000 or more must agree not to discriminate against employees on the basis of race, color, religion, gender, or national origin. For the smallest government contracts, employers must agree that they will not discriminate in soliciting, hiring, training, and retaining employees, and will post notices that it is an equal opportunity employer. These notices must be posted in conspicuous places. Small contractors must also agree to certain record-keeping and inspection requirements.

If a contractor has 50 or more employees and a nonconstruction contract of $50,000 or more, the contractor must develop an affirmative action plan within 120 days of the beginning of the contract. Many of the "voluntary" affirmative action programs (those plans not mandated by a court order after pervasive patterns of discriminatory conduct are found) arise from the mandate of Executive Order 11246, which has remained in force through the successive presidencies of Presidents Nixon, Ford, Carter, Reagan, Bush, and Clinton. The listed strategies for complying with Executive Order 11246 include a workplace assessment in which the employer lists how many women are in each of seven categories, from unskilled workers to managers. Employers must compare the percentage of women in these positions with the percentage of such qualified employees available in the appropriate geographic area.

The executive order is enforced by the Office of Federal Contract Compliance Programs (OFCCP) in the U.S. Department of Labor. The OFCCP issues numerous regulations to implement the order. Penalties for noncompliance include publishing the names of nonconforming contractors, recommending to the EEOC or U.S. Department of Justice that proceedings be instituted under Title VII, canceling or suspending the contract (either absolutely or conditionally, depending on future compliance with affirmative action plans), or (only rarely) barring the contractor from entering into further government contracts until the secretary of labor is satisfied that equal opportunity/affirmative action will be realized at the contractor's place of business.

TITLE VIl.

The Civil Rights Act of 1964 was intended to discourage discrimination on various "suspect" bases in a variety of settings. The suspect bases are race, color, religion, sex, or national origin. Title II, for example, prohibits discrimination on all five suspect bases in public accommodations (such as hotels, motels, restaurants), while Title IX prohibits discrimination on the same bases in public education. The essence of Title VII is to discourage employment discrimination on any of the suspect bases.

Section 703 of Title VII makes it an unlawful employment practice: "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Thus, the law covers employer discrimination in hiring, promotion, or firing, or working conditions such as training, pay, discipline, layoffs, and benefits. Similar provisions apply to labor organizations (unions), and employment agencies must not classify, refer, or fail to refer people to others on any of the suspect bases. Employers are also forbidden to retaliate against any employee who makes a charge, testifies, or otherwise participates in an investigation or hearing under the act or opposes any unlawful practice.

Several exceptions were made. If an employee is a member of the Communist Party of the United States or of any other organization considered a "Communist-action or Communist-front organization," discrimination is not unlawful. Nor is discrimination on any of the suspect bases unlawful where the job "is subject to any requirement imposed in the interest of national security of the United States."

Other exceptions are more likely to apply. Title VII allows for unintentional discrimination that arises from a bona fide seniority or merit system. It also provides an exception where religion, sex, or national origin is a bona fide occupational qualification (BFOQ) "reasonably necessary to the normal operation of that particular business or enterprise." Thus, a Jewish synagogue need not seriously consider a Baptist minister for possible employment, and may impose a religious affiliation requirement for its hiring process. But the exception is very limited. The courts have allowed use of the BFOQ exception when an acting part is cast as male or female. But airlines were not successful in claiming that males would not be suitable as flight attendants. If persons of one sex can perform the essential functions of the job as well as persons of the other sex, the BFOQ exception will ordinarily not justify gender discrimination.

Title VII applies to private employers with 15 or more employees, labor unions with 15 or more members, employment agencies, state and local governments, public and private educational institutions, and the federal government (including, most recently, Congress itself). Title VII has been amended several times with the Equal Employment Opportunity Act of 1972 and the Pregnancy Discrimination Act of 1978. The 1978 amendment added pregnancy discrimination as a type of gender discrimination. The 1972 amendment widened Title VII's coverage to include government employees and strengthened the powers of the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of Title VII. Amendments in 1991, among other things, (1) allowed recovery of compensatory and punitive damages, rather than just back pay; (2) allowed jury trials where compensatory or punitive damages are sought; and (3) extended Title VII's application beyond U.S. boundaries to include U.S. citizens working for U.S. companies abroad.

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

The Civil Rights Act of 1964 not only set substantive limits on workplace discrimination but also created an administrative agency to enforce the act. The EEOC is composed of five members, not more than three of whom may be members of the same political party. The members are appointed by the president with the advice and consent of the Senate; each serves a five-year term. The EEOC has authority to set guidelines for adherence to the Civil Rights Act of 1964, as well as other legislation such as the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act. It has authority to hold hearings, obtain evidence, and subpoena and examine witnesses under oath.

An aggrieved employee or the EEOC may file a civil lawsuit to complain of discriminatory acts by an employer, labor union, or employment agency. First, however, each must exhaust administrative efforts to settle the claim. An employee must file a complaint to the EEOC within 540 days of the alleged unlawful practice; the EEOC then serves notice of the charge to the employer within ten days. The EEOC will investigate the complaint by talking with both the employer and employee (or ex-employee). (A claimant who remains an employee has some protection from the antiretaliatory provisions of Title VII, which makes it a separate offense for an employer to retaliate against any employees pursuing their rights under Title VII.) After investigating the complaint, the EEOC may find that there is no cause, and will issue a right to sue letter. The claimant, having exhausted administrative remedies, must then file a lawsuit within 90 days in federal or state court or lose the right to pursue a Title VII action. Claimants also have a right to sue if the EEOC does not act on the complaint within a certain time.

The EEOC may, however, find reasonable cause to charge the employer with discrimination, and will attempt to conciliate the matter in an informal way. Conciliated resolution of Title VII disputes may include the employer's agreement to write a favorable letter of recommendation, to reinstate, to promote, or to adjust the pay or working conditions. If no conciliation is made, the EEOC may file a civil action.

Whether the EEOC brings an action or whether the claimant brings an action, the usual remedies sought include back pay awarded for time an employee was not working because of illegal discrimination, and front pay for time an employee would have been in a job were it not for the illegal discrimination. Both such remedies are aimed at making the claimant "whole"; that is, putting the claimant in approximately the same economic position that she or he would have been in had the illegal discrimination not occurred.

To such damages the Civil Rights Act of 1991 added compensatory damages and punitive damages as possible remedies. Compensatory damages could include emotional pain, suffering, inconvenience, mental anguish, and other nonpecuniary losses. Punitive damages are allowed when the employer's acts are malicious or done with reckless indifference to the employee's Title VII rights. Both compensatory and punitive damages are capped at various levels. For an employer with:

• 15 to 100 employees, there is a cap of $50,000.
• 101 to 200 employees, there is a cap of $100,000.
• 201 to 500 employees, there is a cap of $200,000.
• More than 500 employees, there is a cap of $300,000.

TITLE VIl LAWSUITS.

To win a Title VII sex discrimination lawsuit, a plaintiff must show that actions taken by the employer were based on gender. Generally, two types of cases are distinguished: the disparate treatment allegation (in which the plaintiff must convince the court that the employer intentionally discriminated against the plaintiff) and the disparate impact allegation (in which the plaintiff must show that the employer's seemingly neutral or nondiscriminatory acts, policies, or practices had a disproportionately negative impact on women in that particular workplace). Sexual harassment cases are disparate treatment cases; the essential allegation is that the plaintiff has been treated differently by the employer (or its agents) because of her gender.

A MODEL DISPARATE TREATMENT CASE

If an employer intentionally treats minority applicants or employees differently because of their sex, that would be disparate treatment under guidelines established by the EEOC, the U.S. Civil Service Commission, the U.S. Department of Labor, and the U.S. Department of Justice. These four agencies have a common set of rules for interpreting and enforcing the Civil Rights Act—the Uniform Guidelines on Employee Selection Procedures. Sexual harassment is a type of disparate treatment case because the victim would not have suffered the harassing conduct except for her (or his) sex. In McDonnell Douglas Corp. v. Green in 1973, the Supreme Court established a four-step decision rule for inferring intentional discrimination in disparate treatment cases involving hiring decisions:

1. plaintiff belongs to a protected classification;
2. plaintiff applied for and was qualified for a job for which employer was seeking applicants;
3. despite their qualifications, they were rejected; and
4. after their rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

Similar yet somewhat different proofs must be offered by plaintiffs who are aggrieved by promotion or layoff decisions or working conditions, where the gender of the plaintiff is alleged to be the primary cause of the nonpromotion, layoff, or adverse working condition. Adverse working conditions may include conditions of sexual harassment.

SEXUAL HARASSMENT CASES

Sexual harassment cases are, in essence, claims of disparate treatment under Title VII. The employee's complaint is typically based on a perceived difference in treatment based on gender. Sexual harassment claims are either quid pro quo or hostile working environment claims. A quid pro quo claim alleges that the employer required favors of a sexual nature in exchange for continued employment or in exchange for certain working conditions. If an employer makes kissing or other bodily contact a requirement of continued employment, a quid pro quo claim of sexual harassment is evident. But if there is no physical contact between employer and employee, there may still be sexual harassment under the hostile working environment type of claim. If an employer (or those under employer supervision or control) maintains a hostile working environment that disparately affects an employee on a gender-specific basis, the employer may be liable for creating a hostile working environment.

Often, a company's management is unaware of harassing behavior; questions arise as to the company's liability in such cases. In Meritor Savings v. Vinson (1986), the Supreme Court determined that agency principles would apply for establishing employer liability, and that a company would generally be responsible for the acts of its employees as agent. Still, the court was willing to consider that a company might not have actual knowledge of sexually harassing behavior on the part of its employees, and that this might operate as a defense to liability. Following Meritor, many courts, including the 3rd Circuit, allowed employers to escape liability for a sexually harassing hostile work environment by taking "prompt and effective remedial measures" once the facts about the harassing environment were brought to its attention.

Confusion among employers and courts about "vicarious liability" has continued until the 1997-98 term; to some extent, the Court has clarified vicarious liability questions in two decisions, Ellerth v. Burlington Industries and Farragher v. City of Boca Raton. In Meritor, however, the Court cautioned that businesses cannot simply insulate themselves from liability by making it difficult for upper management to know about sexual harassment allegations; businesses should have some means for aggrieved employees to make complaints of sexual harassment, should have a clearly stated policy covering sexual harassment, and must enable employees to bypass a harassing supervisor in order to make a complaint.

In addition to Ellerth and Farragher, the Supreme Court has since Meritor considered other key sexual harassment cases, including Harris v. Forklift Systems and Oncale v. Offshore Services, Inc., which determined that if harassment is directed at a male employee because of his gender, he can maintain a "same-sex" harassment suit.

HARRIS V. FORKLIFT SYSTEMS.

Prior to the Supreme Court's decision in Harris v. Forklift Systems, Inc. (1993), many federal circuit courts of appeal had used a "reasonable woman" standard in sexual harassment cases. The use of such a standard, in contrast to a "reasonable person" standard, requires that the alleged sexual harassment of a woman be judged on a gender-specific basis. That is, the particular sensibilities of women would be acknowledged by the courts in evaluating whether the alleged harassment was actionable under Title VII. Legal scholars and social critics had either hailed or condemned the use of the "reasonable woman" standard. Supporters of the standard believed it was the only feasible way to reverse the reality that many men have been brought up to believe that gender abuse and harassment is their birthright; critics believed that a gender-specific standard was needlessly divisive and would tend to elevate relatively trivial forms of workplace harassment into a federal cases and "chill" the exercise of free speech and normal social intercourse.

But in Harris v. Forklift Systems, Inc., the Supreme Court laid the "reasonable woman" standard to rest. On appeal, the plaintiff sought to undo the lower court's requirement that she prove "psychological harm" from the harassment. The Court, speaking through Justice Sandra Day O'Connor, firmly rejected any such requirement in Title VII sexual harassment cases. Without addressing the "reasonable woman" standard directly, O'Connor's opinion clearly embraced the "reasonable person" standard in saying that "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview."

In Harris v. Forklift Systems, the owner/manager allegedly made numerous sexual innuendoes about Harris's and other women's clothing, suggested that he and Harris "go to the Holiday Inn" to negotiate her raise, and occasionally asked female employees (including Harris) to get coins from his front pants pocket. At least once, Harris was called a "dumb ass woman." The owner/manager also threw objects on the ground in front of female employees and asked them to pick up the objects.

In finding that no proof of psychological injury was required, the Supreme Court tried to steer a "middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause tangible psychological injury." But the Court disavowed any set criteria, other than the "test" that "so long as the environment would reasonably be perceived, and is perceived, as hostile or abusive" there may be sexual harassment without a finding of psychological injury. O'Connor continued:

But we can say that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity, whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.… while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.

In short, Harris v. Forklift put the reasonable woman standard to rest along with the notion that only egregious cases of psychological harm would be actionable under Title VII. But in Harris, the harassment came from the company's owner; thus, the case did not answer the vicarious liability question for most companies that was raised by Meritor: when is a business liable (or not) for unauthorized sexual harassment by "lower level" supervisors? In the 1997-98 term, the Supreme Court provided some helpful guidance on this question

FARRAGHER V. BOCA RATON AND ELLERTH V. BURLINGTON INDUSTRIES.

In essence, the Supreme Court in the Farragher and Ellerth cases clarified an employer's obligation to rid the workplace of sexual harassment by finding employers to be "vicariously liable" for such harassment that does not result in a "tangible job detriment." But the Court also articulated an affirmative defense: where the employer had and promulgated an effective sexual harassment policy and complaint procedure, and the allegedly harassed employee failed to take advantage of the procedures in place, there would be no vicarious liability. If a supervisor's sexual harassment of a subordinate leads to a tangible job detriment, these affirmative defenses are not available and the employer will be liable for the harassment.

In both cases, the Court noted that supervisors who sexually harass are presumably acting outside the scope of their employment, since such harassment does not further the aims and objectives of the employer. Still, such harassment may be "aided" by the agency relationship; that is, because a supervisor has authority over a harassed employee, the supervisor may be aided by the position his employer has conferred.

For both cases, the Supreme Court articulated a path for employers whose agents (employees) may discriminate by sexual harassment. First, the employer must exercise reasonable care to prevent and correct promptly any sexually harassing behavior, and second, the plaintiff employee must have unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm or otherwise. This defense is not available when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. The court placed emphasis on an employer maintaining and publicizing its sexual harassment complaint procedure throughout the workplace and an employee's obligation to reasonably utilize such procedure.

In applying these principles to the cases at hand, the court reversed the appellate court in Farragher, finding that, although Farragher suffered no tangible job action, the city of Boca Raton would not have the opportunity to raise an affirmative defense to her claim because it "entirely failed to disseminate its policy against sexual harassment among the beach employees." Conversely, in Ellerth, the court affirmed the appellate court's reversal of summary judgment in favor of Burlington, but permitted the employer (a) the opportunity to assert and prove the affirmative defense that it promulgated and maintained its sexual harassment policy and (b) that Ellerth unreasonably failed to utilize the procedures set forth.

The cases leave unsettled the question of whether the employer's failure to prevent harassment is actionable in itself. Employers implementing these decisions should review their sexual harassment policies and procedures for their strength and ease of use. As the court in Ellerth noted, "Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms."

True to the dictates of judicial conservatism, the Court has avoided deciding cases not before it; the tradition of case-by-case analysis by "looking at all the circumstances" is invoked, leaving managers and organizations with scant guidance. Given that under the Civil Rights Act of 1991, Title VII cases can now take place before juries empowered to award punitive damages, a certain confused caution may be the order of the day for business organizations. Lacking more specific guidance, businesses are likely to err on the side of protecting all sensibilities, however fragile or idiosyncratic. A prudent set of policies would include a systematic yet unintrusive survey of employee attitudes about what kinds of speech and behaviors are perceived and harassing and which are not.

A MODEL DISPARATE IMPACT CASE

Disparate impact cases are somewhat different from disparate treatment: showing an intent to discriminate is not a necessary part of plaintiff s burden of proof. In effect, an employer may have a policy or practice that, on its face, is seemingly neutral as to gender. In practice, however, the policy may systematically disadvantage applicants or employees of a particular sex.

In the leading case on disparate treatment, Duke Power Co. v. Griggs, the Supreme Court found that the company's policy of requiring a high school diploma or passing a high school achievement test was seemingly neutral, yet disproportionately affected African-American employees and applicants. Plaintiffs prevailed even though there was no showing of an intent to discriminate. In sex discrimination cases, certain policies that, for example, require employees to be able to lift 80 pounds deadweight from a standing position would be facially neutral, yet may disproportionately affect the chances women might have to gain employment. Yet the facially neutral requirement may be reasonable, in which case the courts will allow a defense of business necessity. Business necessity as a defense in disparate impact cases requires that the employer show (1) that qualities measured by the test or requirement are, in good faith, reasonably necessary to an adequate performance at the job in question; and (2) that any test actually examines what it purports to examine, is valid, and measures accurately what it purports to measure. The EEOC specifies three forms of test validation under its 1978 Uniform Guidelines on Employee Selection Procedures.

Yet there are many policies and practices that may have a disparate impact that are not as clearly defined as a test or requirement. Candidates for midlevel and upper-level management are usually not evaluated by tests or specific requirements; they are typically chosen by rather more subjective methods. Such methods are difficult for disadvantaged employees to pin down, yet the courts require that a specific practice or policy that is the cause of the disproportionate impact must be identified. Statistical evidence alone—even where the workforce is nowhere near representing the racial and gender mix of eligible and available employees—will generally not suffice to establish disparate impact. More is required: the identification of a specific policy, practice, or procedure which disadvantages the complainant(s). Moreover, that practice or policy must be causally related to the impact shown.

AFFIRMATIVE ACTION AND REVERSE
DISCRIMINATION

In disparate treatment cases, the issues of affirmative action and reverse discrimination may arise. A company that has intentionally and systematically excluded people of one sex from its workplace may find itself sued under Title VII and ordered to institute an affirmative action plan under court supervision. A company that is fearful of litigation over its personnel practices may decide to have a voluntary affirmative action program designed to increase the representation of previously excluded minorities, including women (or men). Voluntary affirmative action plans have been challenged in court as a kind of reverse discrimination: a male who is passed over for promotion in favor of a female may claim disparate treatment, and the court must determine whether the voluntary affirmative action plan is valid. The Supreme Court will generally allow an affirmative action plan in any case where the plan (1) is temporary, designed to attain rather than permanently maintain some balance in the workforce; (2) does not impose rigid quotas setting aside a certain number of positions for women; (3) does not bar affected males, in the long term, from further advancement; and (4) has the purpose of correcting manifest, long-standing imbalances in the employer's workforce.

Affirmative action has been controversial in contexts of both race and gender. Any forced changes in the status quo are likely to produce some backlash; moreover, many people object to using some form of discrimination to end discrimination, and many others are not convinced of the long-term utility of affirmative action for women or people of color. Title VII specifically allows affirmative action, but there are likely to be some new limits placed on its use by Congress.

STATE LAWS ON SEX DISCRIMINATION

The majority of states also have laws prohibiting discrimination by employers on the basis of race, sex, or religion, as well as discrimination on a variety of other grounds. Michigan's Elliott-Larsen Act, for example, prohibits discrimination on the grounds of obesity if the employee is otherwise capable of performing his or her assigned tasks. Such state laws are not preempted by federal law in Title VII, since Congress neither stated nor implied that states could not also regulate on the subject of job discrimination. Thus, some state laws on equal opportunity could provide different or even more generous remedies to affected employees, and could protect classes of employees not otherwise protected by Title VII. But some state supreme courts have refused to award punitive damages for violations of state civil rights laws, stressing the remedial nature of such laws. Under the Pennsylvania Human Relations Act, for example, punitive damages may not be allowed (Hoy v. Angelone, Pa., 24 November 1998). As a result, attorneys for plaintiffs alleging sex discrimination are likely to seek remedies under federal law.

A potential claimant may thus pursue both federal and state remedies. Typically, states have their own agencies to administer and enforce nondiscrimination laws. Under Section 706 of the Civil Rights Act of 1964, state agencies may contract with the EEOC to be a "706 agency" and process claims of discrimination for the EEOC in addition to state-based claims. If a claimant comes to the EEOC when there is a 706 agency in the jurisdiction, EEOC must defer to that agency for 60 days before beginning its investigation.

In filing suit, Title VII claimants with right-to-sue letters typically resort to federal district courts within the applicable time limits. If a plaintiff has a state claim as well, the state claim will be heard as part of the federal courts' pendant jurisdiction. But a state court may hear a Title VII claim unaccompanied by a state claim, since state courts have concurrent jurisdiction of all types of claims unless exclusive jurisdiction resides with the federal courts. In passing Title VII, Congress empowered federal courts to hear complaints of job discrimination based on race, color, sex, religion, and national origin, but did not limit the available post-EEOC dispute resolution forums to the federal courts. Thus, state courts and arbitral forums are also available for the resolution of Title VII claims.

ARBITRATION OF EMPLOYMENT
DISCRIMINATION CLAIMS

In Section 118 of the Civil Rights Act of 1991, Congress encouraged the use of alternative dispute resolution mechanisms to settle claims of job discrimination. Earlier that year, the Supreme Court had interpreted the Federal Arbitration Act to require an employee to arbitrate an age discrimination claim even though he preferred to litigate in federal court (Gilmer v. Interstate/Johnson-Lane). In one of many documents signed as part of his application for employment, Gilmer had unknowingly agreed to arbitration of any disputes arising between him and his employer. After the alleged discrimination, resulting in his discharge, Gilmer sued but was compelled to arbitrate his age discrimination claim instead of having it heard by the federal court. Since the Gilmer case was decided, federal courts have overwhelmingly enforced predispute arbitration agreements where sex discrimination or other Title VII causes of action are alleged.

A few federal circuit courts of appeal have been reluctant to enforce predispute arbitration clauses where unfairness might result. In Prudential Ins. Co. of America v. Lai and Viernes et al. (1994), the Ninth Circuit Court of Appeals determined not to enforce a predispute arbitration clause where the plaintiffs had no opportunity to read the forms they signed, where they were told they were applying to take a test, and where arbitration was never mentioned. Until the Supreme Court addresses these issues, prudent employers desiring arbitration of sex discrimination claims are well advised to make full disclosure of any predispute arbitration agreements.

Courts are also grappling with the extent to which arbitrators may award punitive damages. Predispute arbitration agreements, particularly in the securities industry, choose New York state law as the basis for interpreting the agreement. Under New York law, however, public policy prevents arbitrators from awarding punitive damages. In 1995 the Supreme Court decided Mastrobuonno v. Shearson Lehman and directed courts to allow arbitrators to award punitive damages unless the parties had clearly agreed that the arbitrator had no power to do so.

EXTRATERRITORIAL APPLICATION OF
TITLE VII

In the 1991 amendments to Title VII, Congress also made clear that the law applies outside U.S. boundaries, but only where the claimant is a U.S. citizen and the employer is a U.S. company. Earlier that year, the Supreme Court had held that the Title VII claim of a U.S. citizen should be dismissed where the discriminatory actions by a company incorporated in the United States had taken place in Saudi Arabia (EEOC v. Boureslan). Under international law, nations have the power to prescribe and enforce laws beyond their borders with respect to acts by their citizens (nationals). Where a U.S. company is subject to laws in a host country that would prevent the hiring of women for certain jobs, the bona fide occupational qualification (BFOQ) exception would resolve the conflict between Title VII and the host country's law in favor of the host country. In one case, a U.S. citizen tried to use Title VII to recover damages because he had not been employed to fly planes to Mecca. But the plaintiff was a Baptist, and Saudi Arabian law required that anyone in Mecca must be Islamic. The defendant U.S. company had imposed the same requirement, and the Court held that its requirement was a BFOQ (Kern v. Dynalectron). The more difficult cases will arise when the U.S.-based company encounters cultural norms hostile to gender equality.

Cross-cultural differences have also come into play when foreign companies operating in the United States have claimed the protection of certain bilateral treaty provisions. Such treaty provisions, often negotiated in treaties of friendship, navigation, and commerce, provide that companies of the foreign nation may select personnel of their own choosing. This raises issues for courts that may be reluctant to impose Title VII's gender nondiscrimination requirements on, for example, Japanese companies doing business in the United States.