Disciplinary and Harassment Investigations

a. Hostile Work Environment For hostile work environment harassment to be unlawful, the conduct must be based on the alleged victim’s protected status or the perception of a protected status, such as his/her:

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Race

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National Origin or Ancestry

 Sex (including gender and pregnancy)

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Age (40 years and older)

 Physical or Mental Disability, or Medical Condition

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Religion

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Marital Status

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Sexual Orientation

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Gender identity and expression

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Genetic information

 Opposition to Unlawful Harassment (i.e., retaliation)

Harassment based on sex includes harassment of a sexual nature, gender harassment, and harassment based on pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. 20 Whether motivated by hostility or by sexual interest, harassing conduct of a sexual nature, is always based on sex, regardless of the gender of the alleged victim or the sexual orientation of the harasser. Thus, same sex harassment and harassment by a homosexual employee of an employee of the opposite sex are also unlawful. 21 Further, in evaluating the severity and pervasiveness of sexual harassment, courts may focus on the perspective of the victim. 22 Although state law (under the Fair Employment and Housing Act) discussed above, expressly protects employees from discrimination and harassment on the basis of sexual orientation and gender identify and expression, the issue of whether Title VII provides these same protections was not definitively settled until June 15, 2020, when the United States Supreme Court decided the hallmark case of Bostock v. Clayton County . 23 In Bostock , the Court ruled that Title VII of the 1964 Civil Rights Act protects employees from discrimination, on the basis of their sexual orientation and transgender status. The Court ruled that the plain language of the statute – prohibiting discrimination “because of” sex – incorporates discrimination based on sexual orientation or transgender status. The Court stated: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” For example, if an employer fires a male employee for being attracted to men, but does not fire a female employee for being attracted to men, the employer’s decision is based on sex. The Court explained that “homosexuality and transgender

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 12