It’s been a roller coaster week in the fight against sex discrimination. Last weekend, disturbing news broke that Fox News had settled many more sexual harassment allegations against Bill O’Reilly than previously thought – and did so even after Roger Ailes left in the wake of his own sexual harassment scandal last summer. O’Reilly still has a job at Fox News, and President Trump defended him, saying O’Reilly “is a good person” and “I don’t think Bill did anything wrong.” This defense comes just days after Trump signed an executive order rolling back workplace protections against sexual harassment and discrimination. His message is clear: harassers are protected. Oh, and all this happened around the beginning of April, which is Sexual Assault Awareness and Prevention Month.
Luckily, there’s also some good news: this week two federal courts gave us important victories in the fight for equal pay and the rights of LGBT individuals.
Just in time for Equal Pay Day, the Court of Appeals for the Eighth Circuit affirmed a jury verdict in favor of three women who alleged pay discrimination under the Equal Pay Act and Title VII. Erin Dindinger and her colleagues asserted that their employer paid them less than their male counterparts for doing the same work. Under the Equal Pay Act, an employer may avoid liability for pay discrimination by proving that a pay disparity is justified by one of four affirmative defenses, including that the employer set pay based on a “factor other than sex.”
In this case, the employer claimed that it paid the women less than their male counterparts because of a “factor other than sex” — economic conditions due to the recession of 2008, which necessitated cost-saving measures including layoffs, restructuring job responsibilities, and pay raise freezes. The court rejected the argument, pointing out that the employer didn’t prove that the cost-saving measures caused the women to be paid less than the men. This is important because for many years, employers have argued for, and some courts have accepted, interpretations of the “factor other than sex” affirmative defense that are so broad as to create a giant loophole. (Recently introduced federal legislation, the Paycheck Fairness Act, would tighten this loophole). These courts have credited, without probing, assertions that certain business practices justify unequal pay between men and women, like relying on negotiation skills to set starting salaries without assessing relevant experience, and paying higher salaries based on “market forces.” This decision makes clear that employers must prove, not merely assert, that their pay policies are tied to legitimate business needs or an employee’s qualifications and experience.
In other exciting news, the Seventh Circuit became the first federal appeals court in the country to recognize that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII, in Hively v. Ivy Tech Cmty. College. This is an evolving area of the law; federal courts that have considered the issue have reached different conclusions. Last week the Second Circuit rejected an ad executive’s claims that he was sexually harassed by his supervisor due to his sexual orientation, although the court allowed his claim that he was subject to sex stereotyping due to his failure to conform to gender norms to proceed. And recently the Eleventh Circuit ruled that it could not recognize sexual orientation discrimination claims under Title VII. (The National Women’s Law Center has participated in amicus briefs in several of these cases, including Hively, explaining that since Title VII’s enactment, courts have evolved in recognizing the broad reach of its prohibition against discrimination on the basis of sex.)
The Seventh Circuit’s decision reasoned that although Congress may not have envisioned the inclusion of sexual orientation in Title VII at the time of enactment in 1964, over the years the Supreme Court has recognized that the statutory language encompasses discrimination that includes discrimination on the basis of sexual orientation. Although technically the Seventh Circuit’s decision is only binding in three states (Illinois, Indiana, and Wisconsin), there’s no doubt that its impact will be felt around the country, opening the door to long-overdue protections for LGBT individuals in the workplace.