Welcome to the EEO Exchange entitled “Sex Discrimination.”  This course was originally presented as a live web recording on October 18, 2017.  The purpose of the EEO exchange is to create an online forum that promotes and encourages the exchange of EEO-related knowledge and information.  We want to strengthen the knowledge base of the commonwealth’s EEO community and promote collaboration, understanding and idea generation.  The objectives for this exchange are as follows. First, we will review the laws and policies that prohibit sex discrimination in the workplace.  Second, we will examine the expansive scope of sex discrimination, specifically under EEOC guidance, which includes discrimination based on sexual orientation and gender identity or expression.  Third, we will explore the various forms of sex discrimination, which include sexual stereotyping, sexual harassment, and unequal pay. So why is this topic important?  We know that barriers based on sex remain in many workplaces.  Barriers to management positions, known as the “glass ceiling”, remain persistent.  Sexual harassment also remains a problem.  You may know of incidents involving Fox News, Uber, the National Park Service, and most recently, The Weinstein Company, where rampant sexual harassment and other forms of sex discrimination permeated these institutions, causing huge legal liability for these employers.  Commonwealth policies are very clear, ensuring equal opportunity for all employees, regardless of their protected class.  There are various federal laws that prohibit sex discrimination in the workplace.  As EEO Officers and Specialists, the primary law that you will encounter is Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex.  However, there are other laws that you need to know about as well.  The Equal Pay Act of 1963 is a federal law that makes it illegal to pay different wages to men and women if they perform equal work in the same workplace.  In a prior EEO Exchange on pregnancy discrimination, we discussed the Pregnancy Non-Discrimination Act, which amended Title VII to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.  We won’t cover this particular law in this course but know that it is one of the laws prohibiting sex discrimination in the workplace.  Finally, the state’s civil rights law, the Pennsylvania Human Relations Act, or PHRA, also prohibits sex discrimination.  Commonwealth policies also prohibit discrimination based on sex.  Executive Order 2016-04, Equal Employment Opportunity and Management Directive 410.10, Guidelines for Investigating and Resolving Internal Discrimination Complaints both prohibit sex discrimination.  Additionally, both Executive Order 2002-4, Prohibition of Sexual Harassment in the Commonwealth and Management Directive 505.30, Prohibition of Sexual Harassment in Commonwealth Work Settings also prohibit sexual harassment.  Sexual harassment is a form of sex discrimination.  We will be emphasizing this in upcoming slides. Let’s first examine how sex discrimination is referenced in Title VII and the PHRA. Let’s review the text of the main laws that prohibit sex discrimination in the workplace, Title VII and the PHRA.  Title VII states that it is unlawful “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to … compensation, terms, conditions, or privileges of employment, because of … sex.”  The PHRA has similar language, declaring it to be unlawful “for any employer because of … sex … to refuse to hire or employ or contract with, or to bar or to discharge … or to otherwise discriminate.”  Now let’s explore the forms of sex discrimination. We’ll start by reviewing “sex stereotyping.”  Over time, the meaning of sex discrimination has evolved.  For instance, the concept of “sex stereotyping” was not considered to be a form of sex discrimination when Title VII was passed.  Today, discriminating against an individual because his or her appearance or behavior does not conform to stereotypical gender roles is commonly understood to be a form of sex discrimination.  The concept of sex stereotyping expands the scope of federal and state laws’ prohibitions against sex discrimination as it goes beyond the traditional definition of sex.  Let’s delve into our first scenario to examine the issue of sex stereotyping. Anne was a Budget Analyst in Agency B.  Over her long career with the agency, she consistently received outstanding EPRs.  Though she was considered too serious by some colleagues, she was dedicated to her position and the agency’s mission, and was viewed as a leader by her peers.  Despite her performance, she was turned down for various senior management positions.  When another senior management position opened up, she went to her supervisor for advice on how she could do better in the interview for this position.  Anne’s supervisor told her that while she was a great employee, he had to be honest with her.  “Some people don’t like working for a tough woman, Anne.  Some consider you ‘too macho’ for a woman, that you’re too aggressive and difficult to work with.”  He suggested that Anne had to win over the interview panel by “taking a course in charm school, wear make-up and jewelry and dress more femininely.”  Anne grudgingly took his advice.  However, following the interview for this position, Anne was again denied the promotion.  This time, a male with less experience than Anne was selected.  In a memo to agency staff announcing his selection, the successful candidate was lauded for being “aggressive in getting tasks accomplished.”  If you were investigating this complaint, you’d first want to determine the protected class or classes and act or acts of harm.  In this case, the protected class is sex (female) and the act of harm is failure to promote.  Keep in mind that Anne was considered “too aggressive” and “not feminine enough” when not selected for other positions, while the successful male candidate was chosen for being “aggressive in getting tasks accomplished.”  You would also want to determine what theory of discrimination you would you use to analyze the evidence.  In this situation, disparate treatment would be the correct theory.  You would use it to determine if Anne was treated less favorably than other similarly situated candidates. This scenario is based on a landmark 1989 case ruled on by the US Supreme Court, Price Waterhouse v. Hopkins.  Anne Hopkins was a senior accountant in the firm who was denied partnership because of sexual stereotypes about her appearance and demeanor, despite her excellent performance for years.  The court ruled that Ms. Hopkins was discriminated against because of her sex.  The opinion stated the following: “If an employee’s flawed interpersonal skills can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.”  Let’s explore another form of sex discrimination, sexual harassment. In a prior EEO Exchange on the topic of “Harassment”, we examined Management Directive 505.30, “Prohibition of Sexual Harassment in Commonwealth Work Settings”.  Here are a few main points from this Management Directive: Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and/or other verbal, visual, or physical conduct of a sexual nature where: a. submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or b. submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individuals; or c. such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.  Let’s discuss another scenario. Maria, and four co-workers, employees in Agency X, reported to the EEO Specialist that they were sexually harassed by a male supervisor.  During the course of the investigation, witnesses confirmed that this supervisor also subjected a male co-worker, Dale, to offensive comments about his sexual orientation and the sexual practices of him and his husband.  Dale was routinely called offensive names related to his sexual orientation and was the recipient of offensive jokes with explicit sexual content.  Based on this scenario, let’s answer the following questions.  First, was Dale sexually harassed by his supervisor? The correct answer is yes.  The fact that the supervisor was the same sex as Dale doesn’t matter.  The content of the harassment was sexual in nature and was offensive.  Second, Can Agency X take action in this matter, even though Dale did not file a complaint?  The answer is yes.  Note that even though the complaint was initially filed by Maria and other female co-workers, EEO Specialists can investigate and take action against any other EEO violations that emerge in the course of an investigation.  This scenario is based on a 2016 decision from the U.S. District Court in Western Pennsylvania, EEOC v. Scott Medical Health Center.  It was the first time that a court within the Third District, which includes Pennsylvania, ruled that sexual orientation was a form of sex discrimination under Title VII.  The court ruled that Dale Baxley, a gay male employee of Scott Medical Health Center, was harassed by his manager because of his sex, including offensive comments and jokes about his sexual orientation, same sex relationship and sexual practices.  The employer knew about the harassment but failed to stop it.  It is important to note that initially the EEOC received complaints from Mr. Baxley’s female co-workers alleging sexual harassment.  In its investigation of the co-workers’ complaints, EEOC found that Baxley was sexually harassed and filed suit against the employer on his behalf when the parties were unable to conciliate the matter. Now let’s examine the EEOC’s current position on sex discrimination.  EEOC interprets and enforces Title VII's prohibition of sex discrimination as forbidding any employment discrimination based on sexual orientation or gender identity.  The Pennsylvania Human Relations Commission (PHRC) has recently proposed regulatory guidance for public comment stating essentially the same position.  Note that the EEOC’s interpretation of Title VII has been accepted in some federal circuit courts but not in others.  This is an area of the law that is rapidly changing and not yet settled.  While the law is not settled, commonwealth’s policies clearly prohibit discrimination based on sex, sexual orientation and gender identity or expression.  Finally, let’s discuss one more type of discrimination based on sex, that of unequal pay.  President John F. Kennedy signed the Equal Pay Act into law in 1963, which made it illegal to pay different wages to men and women if they perform equal work in the same workplace.  Despite this law being in effect for over 50 years, the wage gap between women and men stubbornly persists.  According to the Women’s Law Project of Philadelphia, women in Pennsylvania earn roughly 79 cents for every dollar a man earns, resulting in an annual wage gap of over $10,000.  The gap is even higher for women of color; African American and Latina women respectively earn 68 cents and 56 cents for every dollar a man earns.  To summarize, we reviewed the laws and commonwealth policies that prohibit sex discrimination.  This includes Title VII, the Equal Pay Act, the Pregnancy Non-Discrimination Act, the PHRA, Executive Orders 2002-4 and 2016-04, and Management Directives 410.10 and 505.30.  We examined the expansive scope of sex discrimination including EEOC enforcement guidance which includes discrimination based on sexual orientation and gender identity or expression under the umbrella of sex discrimination.  Finally, we explored various forms of sex discrimination, including sexual stereotyping, sexual harassment, and unequal pay. Thank you for participating in this training.  If you have questions at any time, please contact the Office of Administration’s Bureau of Equal Employment Opportunity at 717-783-1130.  This version of the course is intended for individuals who require an accommodation for a disability.  Once you have fully reviewed the information in this training, contact your Human Resources Office to request credit for completing this course.  You will not receive credit for completing this course until you do so.