In Westendorf v West Coast Contractors (2013) the Plaintiff, a project manager assistant, claimed hostile work environment based on sexual harassment, based on several sexual comments she heard from her manager, some of which were directed to her and others were directed to another woman. The Court affirmed that dismissal of the case. The Court noted yet again that isolated inappropriate comments, without other evidence of sexual discrimination or unlawful harassment, do not create a viable hostile work environment claim. Plaintiff was, however, allowed to proceed forward with her retaliation claim. This is because even though there was no sufficient evidence to prove the harassment claim, the court found that there was sufficient evidence to allow the Plaintiff to prove that her complaints were the motivating reason for her being fired. 

This decision makes a lot of sense. It would be impractical and borderline nonsensical to allow every inappropriate comment or sexual innuendo/joke turn into a lawsuit for obvious reasons. The Court requires evidence of unlawful hostility against an employee based on a protected class that goes beyond a few isolated comments, especially of those comments are taken out of context. 

Title VII makes it unlawful “to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's  sex․" 42 U.S.C. § 2000e-2(a)(1).  The Courts have recognized two bases on which an aggrieved employee may proceed in a sex discrimination claim:  disparate treatment and disparate impact. Disparate treatment arises when an employer “treats some people less favorably than others because of their ․ sex.” Disparate treatment is permissible under Title VII only if justified as a bona fide occupational qualification (“BFOQ”).   A BFOQ is a qualification that is reasonably necessary to the normal operation or essence of an employer's business.  See 42 U.S.C. § 2000e-2.

An employer's policy amounts to disparate treatment if it treats men and women differently on its face.   For
example, in UAW v. Johnson Controls, 499 U.S. 187 1991), defendant Johnson Controls barred fertile women, but not fertile men, from jobs entailing high levels of lead exposure.  The Court concluded this was disparate treatment:  “Johnson Controls' policy is not neutral because it does not apply to the reproductive capacity of the company's male employees in the same way as it applies to that of the females.”  The Court has made it clear that such an “explicit gender-based policy is sex discrimination under § 703(a) [of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(a) ] and thus may be defended only as a BFOQ.” 
 
However, an appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment and does not give rise to a gender discrimination claim.   For example, in Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir.1977), the court held that a store may impose different hair length requirements on men and women, and may require men but not women to wear neckties. In that case, the court noted that regulations promulgated by employers which require male employees to conform to different grooming and dress standards than female employees is not sex discrimination within the meaning of Title VII.

On the other hand, a sex-differentiated appearance standard that imposes unequal burdens on men and
women is disparate treatment that must be justified as a BFOQ or it will be found an unlawful discrimination. Thus, an employer can require all employees to wear sex-differentiated uniforms, but it cannot require only female employees to wear uniforms.   See Carroll v. Talman Fed. Sav. & Loan Ass'n of Chicago, 604 F.2d 1028 (7th Cir.1979).   An airline can require all flight attendants to wear contacts instead of glasses, but it cannot
require only its female flight attendants to do so. (See Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973). 

In one recent case United Airlines was found to have engaged in gender discriminatoin when it had a weight policy with respect to its flight attendants, that imposed stricter standards on women than on men. 

For more information about different kinds of discrimination, please visit our San Francisco Employment Lawyer Blog.