A member contribution: Just what is Sexual Harassment and Sexual Discrimination? Hollywood v. The Real World

Every day a new sex scandal in the work place is uncovered…from Congress to Hollywood to even NPR. Unfortunately, many of these victims of sexual harassment and discrimination either do not have actionable legal claims or the deadlines for asserting their claims have long past. Nonetheless, these famous victims’ stories are valuable because they are exposing what has long been hidden or ignored and are provoking a national dialogue about what society will allow and not allow in the work place. So…just what protection does the law provide?

As is true of all complex issues, the answer is “it depends.” For purposes of this article, there are three relevant categories: (1) employees; (2) business owners; and (3) self-employed individuals who work solo.

1. Employee Rights.

State and federal laws protect “employees” from discrimination in the terms, conditions, and privileges of employment “because of … sex.” The relevant statutes are Title VII of the Civil Rights Act of 1964 (Title VII) and the Colorado Anti-Discrimination Act (CADA).

Who is protected under Title VII/CADA? Employees and employee applicants only, which excludes most Hollywood starlets because they typically are independent contractors. As a further limitation, Title VII only applies to employers who have at least 15 employees. There is no such limitation under Colorado law; a solo employee is protected under CADA.

Because the federal and state statutes only apply to employer/employee relationships, partners and shareholder-directors are not protected under either Title VII or CADA. However, the label is not dispositive, as courts will scrutinize the actual working relationship to determine whether a partner or shareholder-director actually possesses sufficient control to bind the business entity. Thus, courts consider whether the partner or shareholder-director has the rights to hire and fire employees, to assign tasks and supervise employees, and to decide how the profits and losses of the business are distributed.

Similarly, independent contractors – for example, some real estate and insurance brokers operating under a written contract – are not protected under Title VII or CADA. Again, labels are not dispositive. Generally, an employee is hired to perform specific work at the direction and supervision of the employer, whereas an independent contractor is hired to perform a specific task, often dictating her own hours, methods, and using her own tools.

What is unlawful discrimination “because of …sex”? Note that “sex” includes both genders, and Colorado (plus a growing number of federal circuit courts) extend the protection to “sexual orientation.” The harasser can be the victim’s supervisor, a co-worker, a client/customer and can even be the same sex as the victim. To be actionable, the discrimination must either result in an adverse employment action (such as firing, failing to promote, reassignment with significantly lower pay or power) or must be so severe or pervasive that it alters the terms or conditions of employment, creating a hostile working environment. What constitutes unlawful discrimination is incredibly varied, ranging from stray offensive comments or rude jokes (generally not actionable on their own) to unwelcome sexual advances by a supervisor (actionable). Discrimination need not be about “sex” per se; treating one gender more favorably than the other (such as paying and promoting men more than women) is also unlawful.

What should an employee do if she has been discriminated against because of sex? Most employers have an employee handbook containing procedures that must be followed. It is important to complain in writing, not only because the employer may listen and remedy the problem (it is usually better to have a job than a legal claim) but also because the employer will argue it is not liable because it had no actual or imputed knowledge of the discrimination. Quitting, called a constructive discharge, is only advisable as a last resort because the courts impose a higher burden of proving liability – the working conditions must be objectively intolerable.

If the employer fails to promptly resolve the complaint, or – even worse – retaliates, the employee must file a charge with the state agency (the Colorado Civil Rights Division (CCRD)) or the federal agency (the Equal Employment Opportunity Commission (EEOC)). The employee must exhaust her administrative remedies before filing a lawsuit. An injured employee has six months to file a charge with the CCRD and 300 days to file with the EEOC. The clock starts ticking on the date of the adverse employment action.

2. An Employer’s Perspective.

From both a societal and economic prospective, it is in an employer’s best interest to protect employees from sexual harassment and discrimination by supervisors, other co-workers, and even clients and customers. An employer should have written policies and procedures in place — and follow them! Employees should be trained about their rights and obligations and given a safe and confidential way to complain. If an employee does complain, the employer must listen and respond promptly and effectively. There are outside vendors who provide human resource services, including outside complaint “hot lines,” but an employer need not use expensive or elaborate mechanisms.

3. The Self-Employed.

The self-employed are the Queens (or Kings) of their domains. Unfortunately, even the self-employed may still experience sexual harassment and discrimination from clients, customers, and third-party contractors. Although the self-employed are not protected under Title VII/CADA, there are other statutory and common laws that may protect the self-employed, including laws against sexual assault and stalking, as well as state and federal laws prohibiting state and federal agencies and public places of accommodation from discriminating on the basis of sex.

This is an exciting time for women in the work place. Most of us don’t have huge Twitter followings or the ear of the editor of The New York Times, but we can make the work place better by knowing our rights and enforcing them.

Meredith Munro is an employment law and civil rights attorney. Visit her at kinggreisen.com or call her at 303.298-9878.