Think you know what sex is? In employment discrimination law, it isn’t always clear.
Most people probably understand, whether they work in employment law or not, that there are laws against sex discrimination. In the world of federal anti-discrimination law there is Title VII of the Civil Rights Act of 1964 which protects against discrimination in the workplace based on “sex,” and many analogous state anti-discrimination laws use similar language.
Meaning, for example, you can’t fire or refuse to promote someone because of their gender. Also well-established is the idea that sexual harassment is a form of sex discrimination.
So when a male employee relentlessly harasses a female employee because she scorned him romantically, that is sexual harassment and thus discrimination based on “sex,” right? Wrong. Or at least, not always.
Relationships are not based on sex. Wait, what?
Last month the Northern District of New York held that a male police officer’s incessant, volatile messages to a female fellow police officer, who was also his ex-girlfriend, was not harassment based on sex. Dole v. Town of Bethlehem, 2017 BL 137513 (N.D.N.Y. Apr. 25, 2017).
Despite his constant barrage of text messages, voicemails, and messages over social media—which mainly consisted of profane and vicious verbal attacks, though they were interspersed with pleas for her to return to him—the judge found that the police officer’s motivation was his disappointment in their failed relationship, not the female police officer’s gender.
In so holding, the judge acknowledged that the “unwelcome messages” both expressed the male police officer’s anger over the relationship’s end, as well as a hope it may one day resume, but still found that “None of his communications, however, permit the inference that his harassment of Plaintiff was motivated by her sex.”
So, just to be clear: harassment because of a relationship is not ipso facto harassment because of sex, or at least not always in the Northern District of New York.
What employers need to know
Dole is not the only case to separate out harassment motivated by a relationship from harassment motivated by the victim’s sex. But it is incredibly confusing to the cautious employer, and it is difficult to draw bright-line rules out of sexual harassment cases, which tend to be very fact-specific.
Employers should take note that regardless of how courts are defining “sex,” or any protected class, the most important thing they can do is take proactive steps to avoid and address potential discrimination.
Have a comprehensive anti-discrimination policy that is clearly communicated to employees, make known where employees can address any complaints, and take steps to address those complaints promptly.
This creates a safer atmosphere for employees, but it can also shield employers from liability the next time a break-up leads to a court filing.
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