Category Archives: Title VII


Donald Trump has re-popularized the term “locker room talk.”  The euphemism, which Trump used to explain away his comments about women on a videotape that emerged last week, has different meanings to different people.

Trump downplayed his comments as harmless. Many others, however, viewed Trump’s words as harassing, threatening, and demeaning.  Whatever your belief, so-called locker room talk was the main catalyst behind the explosion of sexual harassment lawsuits some 30 years ago and clearly has not gone away.

Through the real-life story of Beth Ann Faragher, this article provides readers with a historic and revealing look at Title VII — the main law which prohibits sexual harassment and discrimination.  Equally valuable, this edition of the HR Law Insider explains how and why “locker room talk” gets companies sued, and provides businesses specific tools to prevent sexual harassment.

Image result for locker room talk


I had a Forrest Gump moment in 1986.  As a young  ocean lifeguard in Hollywood, Florida, I  witnessed first-hand the male-dominated culture of the Beach Patrol — in our locker room and on the beach.

Little did I know, just up the road, working with men I knew and competed against in lifeguard competitions, Beth Ann Faragher, a lifeguard with the City of Boca Raton, was on her way to making US Supreme Court history.

Sexually harassed for the better part of five years, Faragher brought claims against Boca Raton under Title VII.  After a hard-fought trial, the court found:

“From time to time over the course of Faragher’s tenure at the Marine Safety Section, between 4 and 6 of the 40 to 50 lifeguards were women.  During that 5-year period, Chief of the Marine Safety Division Terry repeatedly touched the bodies of female employees without invitation,  would put his arm around Faragher, with his hand on her buttocks, and once made contact with another female lifeguard in a motion of sexual simulation. He made crudely demeaning references to women generally, and once commented disparagingly on Faragher’s shape. During a job interview with a woman he hired as a lifeguard, Terry said that the female lifeguards had sex with their male counterparts and asked whether she would do the same.”

Marine Safety lieutenant David Silverman behaved in similar ways. He once tackled Faragher and remarked that, but for a physical characteristic he found unattractive, he would readily have had sexual relations with her.  Another time, he pantomimed an act of oral sex. Within earshot of the female lifeguards, Silverman made frequent, vulgar references to women and sexual matters, commented on the bodies of female lifeguards and beachgoers, and at least twice told female lifeguards that he would like to engage in sex with them.”

The court of appeals, however, reversed the trial court and found in favor of Boca Raton.  This led to the landmark US Supreme Court decision in favor of Faragher in 1998.

Faragher’s odyssey began in the 1980s, a decade which witnessed an explosion of sexual harassment cases under Title VII.  That’s right, it took about 20 years for a cultural shift to “allow” cases to be brought under a law that was passed the year The Beatles started the British Invasion in America.

The Faragher decision is obviously important for its legal precedent in holding employers liable for sexual harassment.   The historic ruling also provides businesses with a road map as to how to avoid sexual harassment claims.


The facts in Faragher lawsuit are very typical of the sexual harassment allegations I have observed over 25 years of representing businesses and individuals:  uncontrolled behavior by men in positions of power and/or an overall work culture that enables, encourages, or permits bad behavior.

Regardless of one’s beliefs about the Trump situation, allowing such talk in a work environment is a sure-fire way to be on the receiving end of an EEOC charge of discrimination.  Here are specific, time-tested tools to prevent locker room talk in your workplace and avoid the fate of Boca Raton :

  • Management and employees should receive sexual harassment and discrimination training from counsel once a year.
  • Employee handbooks should be carefully drafted and specifically reviewed during the training.
  • Sexual harassment and discrimination policies should be discussed in detail; hypotheticals should be played-out to understand how the policy will work in real time/life.
  • All businesses should have a personal relationship policy, particularly regarding supervisors and managers having relationships with those that they supervise/manage.
  • Managers should read the Faragher case — it takes 20 minutes; by understanding the underpinnings of the law, managers will know why their handbook says what it says, how to identify and prevent harassment, and what to do, and what not to do, when harassment is alleged.
  • Leaders should constantly assess company culture; live by the credo:  “There are no bad teams, only bad leaders.”
  • Leaders should focus on hiring and training those people who will fit within a culture that condemns and punishes discrimination and harassment.
  • Contact counsel when there is a potential complaint about harassment or discrimination; such complaints rarely occur, and, in my experience, are often addressed and resolved quickly and inexpensively with an experienced hand and laser focus.
  • Once a complaint of harassment is reported, understand that any discipline or negative treatment towards the complainant will bring a high risk of a retaliation claim.
  • Do not overlook inappropriate, stray comments; instead, view them as red flags to monitor or act on immediately to get ahead of a larger problem.
  • Detach and observe how managers and employees treat each other at the office, in the field, and at social events.  Thinking or saying “he’s just like that” or “that’s just who he is” is unacceptable when dealing with someone conducting themselves in a way that is unaligned with your company’s culture.
  • Do not slide:  review this bullet point list once every quarter and ask:  “is our company doing these relatively simple things to prevent and/or deal with sexual harassment and discrimination”?


To understand the root problem and cure for sexual harassment one should do more than adopt wooden, form policies from attorneys or websites.  Instead, endeavor to understand the “culture” in which sexually harassment thrives.

Once one understands the roots of sexual harassment, it is far easier to avoid it in the first instance and, failing avoidance, to identify, combat and eradicate the ugly disease.


Here is a fascinating footnote about Title VII’s enactment:  Unlike today, when congressional votes are typically cast along party lines, in 1964 Title VII’s vote occurred along geographical lines — with the North for Title VII and the South against.

The House vote:

  • Southern Democrats: 7–87   (7–93%)
  • Southern Republicans: 0–10   (0–100%)
  • Northern Democrats: 145–9   (94–6%)
  • Northern Republicans: 138–24   (85–15%)

The Senate vote:


Last Wednesday a federal jury handed down a $11.9 million verdict in favor of a toy company employee.  The huge verdict is the result of three common mistakes I have seen many businesses make over the course of my career:  (1) having poorly written complaint procedures in their employee handbooks; (2) failing to train and oversee management; and (3) commingling the business and human resource operations of parent, subsidiary, and related entities — which can result in the “joint employer” liability of all entities for just one supervisor’s misconduct.


Danielle Rennenger  worked at a ToyQuest call center in Iowa.  According to the Des Moines Business Record, Renneger alleged in her lawsuit that her direct supervisor and a co-worker created a hostile work environment with vulgar and harassing remarks as well as gestures and physical advances toward Rennenger and other women. At one point, the supervisor grabbed Rennenger’s head and forced it into his crotch.

“Danielle tried to complain and get them to stop, but Downey basically told her that Hong Kong, referring to the owners, doesn’t care about women,” according to a release from the Newkirk Zwagerman law firm, which represents Rennenger and other plaintiffs.

U.S. District Judge James Gritzner said in an August 3 ruling, “Fundamentally, we know that there’s really no dispute about what happened to Ms. Rennenger in terms of the call center and the behavior of people in the call center.”

After hearing the evidence, a federal jury  awarded Rennenger $10 million in punitive damages, $1.8 million for past and future emotional distress, and nearly $83,000 in lost wages.

Sexual harassment lawsuits brought by other ToyQuest employees are also pending.


The ToyQuest case judge noted that “[I]t seems rather clear in this record that it was very difficult for employees there to know how to proceed in the event that their supervisor was actually the harasser.”

Failing to have a clear policy as to how victims of sexual harassment and discrimination can complain — especially when management or ownership is alleged to be the harasser —  is a surefire way for businesses to get in trouble.  The typical mistakes I see are poorly drafted policies, policies that do not reflect the actual organizational structure of the subject company, policies that contradict themselves, and policies that are hard to understand or are ambiguous.

Avoid mistake number one:  have a bombproof complaint and sexual harassment/discrimination policy and review it annually with counsel.


ToyQuest management at the Iowa call center was out of control.  Management training and oversight is critical to create a management team and work environment that is free from harassment and discrimination.  Equally so, management training is essential so that management knows how to apply and comply with the complaint provisions in the employee handbook.

Avoid mistake number two:  conduct periodic management training with counsel and stay ahead of the myriad of problems that come with ignorant or undertrained management.


After the lawsuits were filed ToyQuest’s parent company created multiple companies, apparently in an effort to avoid liability, according to Rennenger’s lawyers.  The federal judge agrees:  “And there is a very complex series of positions that the various companies have taken here absolutely contradictory of one another in terms of their relationship and how they were set up. Depending upon which executive you talk to, you get a completely different version of how the call center was set up and who employed those people. In the process of looking at the entire picture of this case, there is substantial evidence of active avoidance of liability,” he said in the Aug. 3 ruling.

If your company has a parent, subsidiary, or related company, it is very easy to expose all your businesses to liability for the “sins” of one.  For example, running HR operations from a central location can expose your businesses to the claim that they are a “joint employer” and thus all liable for harassment which occurred only at one business.

Avoid mistake number three:  if you are operating more than one business and are concerned regarding commonality of operations, ownership, or control  — factors which can expose all the businesses to joint employer liability — contact counsel to determine methods to keep the businesses separate.

Don’t be like ToyQuest.  Instead, understand “joint employer” liability before your businesses  — emphasis on plural — get sued and make any necessary changes.


Businesses should stay ahead of harassment, discrimination, and joint employer problems by staying proactive with their policies, training, and organizational structuring.  ToyQuest had the chance to do these things but failed — abysmally — to do so.

Speaking of failing to take advantage of a chance to do something the right way, enjoy “I Had My Chance” by Morphine, one of my top ten favorite blues songs:


Ever walk into a restaurant or bar and see only women servers?  Or only male servers? Or only young servers?  Me too.  But is it legal to hire only women, or only men, or only young workers?  Read on for the answers — paying particular attention to the video at the end of the article, which highlights a significant exception to the general law against discrimination.


Title VII of the Civil Rights Act of 1964 prohibits employment practices that discriminate on the basis of race, color, religion, sex, or national origin.  Nevertheless, a discriminatory employment practice, such as the sex-based hiring practice hiring only women (or men), may pass legal muster if sex is a bona fide occupational qualification or “BFOQ.”

Title VII’s narrow exception provides:

“[I]t shall not be an unlawful employment practice for an employer to hire and employ employees … on the basis of … sex … where … sex … is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”

The Supreme Court has emphasized that “[t]he BFOQ defense is written narrowly, and this Court has read it narrowly.”  The BFOQ defense applies to “special situations” where employment discrimination is based upon “objective, verifiable requirements” that “concern job-related skills and aptitudes.” An “occupational qualification” means a “qualification[ ] that affect[s] an employee’s ability to do the job.”

The BFOQ defense “may be invoked only when the essence of the business operation would be undermined by hiring individuals of both sexes.”  To justify discrimination under the BFOQ exception, an employer must show, by a preponderance of the evidence, that: (1) the “job qualification justifying the discrimination is reasonably necessary to the essence of its business”; and (2) that “sex is a legitimate proxy for determining” whether an employee has the necessary job qualifications.  In light of these demanding legal standards, BFOQs are few and far between.

In 1997, Hooters agreed to pay $3.75 million to settle a lawsuit filed by men who were denied jobs by the restaurant chain, which is known for its voluptuous and scantily clad female bartenders and servers.

The settlement permitted Hooters to continue attracting customers with a female staff of Hooters Girls. But the chain also agreed to create other  jobs, like bartenders and hosts, that must be filled without regard to sex.

Hooters is still subject to attack that its practices are discriminatory against men.  But it appears that the EEOC will take no action given the 1997 settlement.  In any event, Hooters remains defiant against any attacks on its culture.  Its website reads:

“You may or may not know that Hooters has taken some flak over the years. We’ve endured our share of frivolous lawsuits, but none have put a dent in our ability to provide some good, old-fashioned fun in a casual atmosphere free from the intervention of outside parties with nefarious motives. It took awhile, but we finally worked the word “nefarious” into casual conversation. The point is, we’re proud of who we are. Yes, we have a pretty face. And sex appeal is part of our thing, but it’s not the only thing.”


Hooters ability to hire only women for certain positions is very rare.  Much more common are the cases of Lawry’s Restaurants Inc. and Southwest Airlines.   Each had a practice of hiring only females (for server and flight attendant positions, respectively).  Each was sued and changed its practice.

The EEOC sued Lawry’s and later reported that the west coast steakhouse chain agreed to settle the lawsuit for more than one million dollars. The legal action arose from a complaint by one of the restaurant’s busboys. He claimed that he had been denied a higher-paying server position because of his gender. The EEOC investigation determined that Lawry had prohibited men from working as servers since 1938 and based its policy on tradition. Since Lawry’s instituted the policy over seventy years ago, female servers had dressed in costumes from the 1930s and 1940s. The EEOC determined that despite the policy’s roots in tradition and history, the practice of only hiring women for server positions adversely affected male employees and applicants on the basis of their sex.

Southwest readily conceded that its refusal to hire males was intentional.  Southwest contended, however, that the BFOQ exception to Title VII’s ban on sex discrimination justified its hiring only females for the public contact positions of flight attendant and ticket agent.

A court, however, rejected Southwest’s position:

“Southwest’s position knows no principled limit. Recognition of a sex BFOQ for Southwest’s public contact personnel based on the airline’s “love” campaign opens the door for other employers freely to discriminate by tacking on sex or sex appeal as a qualification for any public contact position where customers preferred employees of a particular sex.  In order not to undermine Congress’ purpose to prevent employers from “refusing to hire an individual based on stereotyped characterizations of the sexes,” a BFOQ for sex must be denied where sex is merely useful for attracting customers of the opposite sex, but where hiring both sexes will not alter or undermine the essential function of the employer’s business.

Rejecting a wider BFOQ for sex does not eliminate the commercial exploitation of sex appeal. It only requires, consistent with the purposes of Title VII, that employer’s exploit the attractiveness and allure of a sexually integrated workforce. Neither Southwest, nor the traveling public, will suffer from such a rule.

To recognize a BFOQ for jobs requiring multiple abilities, some sex-linked and some sex-neutral, the sex-linked aspects of the job must predominate.  An illustration of such dominance in sex cases is the exception recognized by the EEOC for authenticity and genuineness. In the example given, that of an actor or actress, the primary function of the position, its essence, is to fulfill the audience’s expectation and desire for a particular role, characterized by particular physical or emotional traits. Generally, a male could not supply the authenticity required to perform a female role. Similarly, in jobs where sex or vicarious sexual recreation is the primary service provided, e.g. a social escort or topless dancer, the job automatically calls for one sex exclusively; the employee’s sex and the service provided are inseparable. Thus, being female has been deemed a BFOQ for the position of a Playboy Bunny, female sexuality being reasonably necessary to perform the dominant purpose of the job which is forthrightly to titillate and entice male customers.  One court has also suggested, without holding, that the authenticity exception would give rise to a BFOQ for Chinese nationality where necessary to maintain the authentic atmosphere of an ethnic Chinese restaurant.”


In many industries, it is difficult to imagine any jobs that would qualify as BFOQs. However, the “unique context of prison employment,” is one area where courts have found sex-based classifications justified. In one case, the Court held that, in the context of a maximum-security facility “where violence is the order of the day” and sex offenders were interspersed with other prisoners, a female guard’s sex may “undermine her capacity to provide the security that is the essence of a correctional counselor’s responsibility.”

Another example of bona fide occupational qualifications are  mandatory retirement ages for bus drivers and airline pilots, for safety reasons. Further, in advertising, a manufacturer of men’s clothing may lawfully advertise for male models. Religious belief may also be considered a BFOQ; for example, a religious school may lawfully require that members of its faculty be members of that denomination, and may lawfully bar from employment anyone who is not a member.

While religion, sex, or national origin may be considered a bona fide occupational qualification in narrow contexts, race can never be a BFOQ. However, the First Amendment will override Title VII in artistic works where the race of the employee is integral to the story or artistic purpose.

Bona fide occupational qualifications generally only apply to instances in which the BFOQ is considered reasonably necessary to the normal operation of a particular business. For example a Catholic college may lawfully require such positions as president, chaplain, and teaching faculty to be Catholics, but membership in the Catholic Church would generally not be considered a BFOQ for occupations such as secretarial and janitorial positions.


The Lawry’s, Southwest Airlines, and Ruby Tuesday case previously discussed by the HR Law Insider, represent cautionary tales for businesses.  Only in very limited circumstances can an employer justify a discriminatory hiring practice. The ability to market a company’s image through employees’ physical appearances is generally not going to satisfy the BFOQ defense.

Moving forward, cultural shifts are certain to add complexity to the BFOQ issue.  For example, in a recent case a transgender employee who was born physically female filed a discrimination lawsuit because the employer took the position that only a man was allowed to do his job: watching men urinate into plastic cups at a drug treatment center.

In short, employers should exercise extreme caution when making employment decisions that turn on an employee’s gender or other protected status.

For further information on this or other employment law topics, including hiring employees that fit your work culture, contact Art Bourque at Bourque Law Firm.

SPECIAL NOTE:  Title VII applies only to businesses with 15 or more employees.  Thus, the business highlighted in the video below was able to hire only men of a certain ethnic background:


Is your business advertising for job positions?  Make sure the ads themselves are not discriminatory.

The Equal Employment Opportunity Commission (EEOC) reports that restaurant chain Ruby Tuesday, Inc. — which placed ads seeking only female employees — will pay $100,000 and implement preventative measures to settle a sex discrimination lawsuit brought by the EEOC.

The federal agency charged that Ruby Tuesday denied two male employees the opportunity to work as servers in the busy resort town of Park City, Utah in the summer of 2013.  According to the EEOC’s suit, Ruby Tuesday posted an internal announcement within a nine-state region for temporary summer positions with company-provided housing and the chance for greater earnings (Oregon, Arizona, Colorado, Iowa, Minnesota, Missouri, Nebraska, Nevada, and Utah).  However, the announcement stated that only females would be considered, purportedly because of concerns about housing employees of both genders together. Ruby Tuesday only selected women for those summer jobs, therefore blocking two male employees from transferring to the resort.


Title VII of the Civil Rights Act of 1964 prohibits employers from giving more advantageous terms and conditions of employment to one group of individuals based on gender.  The vast majority of cases involve alleged discrimination against women.  However, men are equally protected from discrimination under Title VII — a fact about which Ruby Tuesday is now painfully aware.

Under the consent decree resolving the EEOC’s lawsuit, Ruby Tuesday will pay employees Andrew Herrera and Joshua Bell a total of $100,000 and take steps to prevent future sex discrimination.  The company will provide training to all of its managers and employees on Title VII and job assignments in the nine-state area covered by the EEOC’s lawsuit for the duration of the three-year decree.  This includes an estimated 1,600 managers and employees at 49 different locations.  Ruby Tuesday will also report its training efforts to the EEOC, and post reminders of this resolution on its website and at its restaurants.

“Ruby Tuesday will take affirmative steps to make sure its managers do not make gender-based employment decisions again, even if it only involves temporary summer assignments,” said EEOC San Francisco Regional Attorney William R. Tamayo.  “All managers and employees should know that making personnel decisions based on an employee’s sex is rarely permitted under federal law.”

Seattle Field Office Director Nancy Sienko explained, “We hope that all employees of Ruby Tuesday will have the chance to work in Park City should the company have that need again, and that the company explores other ways to address genuine privacy concerns of temporary workers when it provides housing.”


HR Law Insider hopes everyone enjoyed a restful Memorial Day weekend and honored our veterans.  As we all work back into the abbreviated workweek, here is a bit of “Stones” trivia regarding a song must of us know well:

According to Keith Richards’s autobiography, Life, Rolling Stones hit Ruby Tuesday was written about his girlfriend Linda Keith. Linda had taken up with Jimi Hendrix, and had got involved with drugs. She left Richards, and he tried to get her back. He eventually went to her parents and told them she was going down a dark path. Linda’s father went to New York to collect her, and by order of court she was grounded. Richards reports that Linda regarded this as a betrayal, and they did not speak again for many years.

Here is a solid rendition of Ruby Tuesday by the Stones — enjoy and have a great week:



According to the EEOC,  coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions is “an enforcement priority.”  This enforcement priority is “consistent with positions the EEOC has taken in recent years regarding the intersection of LGBT-related discrimination and Title VII’s prohibition on sex discrimination.”

True to its word, the EEOC is vigorously pursuing employers on a number of such cases.  In turn, the number of charges of discrimination and lawsuits regarding sexual orientation and identity is rapidly escalating.

This HR Law Insider edition helps employers understand and comply with emerging gender issues.  The two transgender cases discussed below — one involving a funeral home embalmer and the other a fireman, with each employee transitioning from male to female — provide an excellent guide for employers as to how to treat (or not to treat) transitioning employees or other employees with gender issues.


The EEOC recently sued a funeral home on behalf of its embalmer asserting that the funeral home’s decision to fire the employee was motivated by sex-based considerations, in that the funeral home fired the employee because she is transgender, because of her transition from male to female, and because she did not conform to the defendant employer’s sex- or gender-based preferences, expectations, or stereotypes. The EEOC also asserted that the funeral home engaged in an unlawful employment practice in violation of Title VII by providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees because of sex.

Last month, a federal court decided that the case could go forward despite the funeral home’s argument that transgender status is not protected under Title VII:  “Even though transgender/transsexual status is currently not a protected class under Title VII, Title VII nevertheless “protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.


The decision in the embalmer case relied heavily on a 2004 lawsuit involving a transgender fireman. In Smith v. City of Salem, plaintiff Jimmie Smith was born a male and had been employed by the Salem Fire Department for seven years without any negative incidents.  After being diagnosed with Gender Identity Disorder, Smith began expressing a more feminine appearance on a full-time basis, including while at work.  Smith’s co-workers began questioning him about his appearance and commenting that his appearance and mannerisms were not “masculine enough.”  Smith then advised his supervisor about his Gender Identity Disorder diagnosis and informed him that his treatment would eventually include “complete physical transformation from male to female.”

The news was not well-received by Smith’s employer. Smith’s superiors met to devise a plan to terminate Smith, which included requiring him to undergo three separate psychological evaluations in the hope that he would quit.

Smith lost before the lower court, but a federal court of appeals reversed and ruled in his favor:

“His complaint sets forth the conduct and mannerisms which, he alleges, did not conform with his employers’ and co-workers’ sex stereotypes of how a man should look and behave. Smith’s complaint states that, after being diagnosed with GID, he began to express a more feminine appearance and manner on a regular basis, including at work. The complaint states that his co-workers began commenting on his appearance and mannerisms as not being masculine enough; and that his supervisors at the Fire Department and other municipal agents knew about this allegedly unmasculine conduct and appearance. The complaint then describes a high-level meeting among Smith’s supervisors and other municipal officials regarding his employment. Defendants allegedly schemed to compel Smith’s resignation by forcing him to undergo multiple psychological evaluations of his gender non-conforming behavior.

The complaint makes clear that these meetings took place soon after Smith assumed a more feminine appearance and manner and after his conversation about this with Eastek. In addition, the complaint alleges that Smith was suspended for twenty-four hours for allegedly violating an unenacted municipal policy, and that the suspension was ordered in retaliation for his pursuing legal remedies after he had been informed about Defendants’ plan to intimidate him into resigning. In short, Smith claims that the discrimination he experienced was based on his failure to conform to sex stereotypes by expressing less masculine, and more feminine mannerisms and appearance.”

The Smith court explained that “[h]aving alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.”


Whether in the macho world of firemen or the macabre world of embalmers, businesses must comply with Title VII. This includes treating transgender and similar employees in a non-discriminatory manner.  Failure to do so may give rise to an EEOC lawsuit; expect such lawsuits to accelerate and be pursued intensely by an EEOC, who has made the pursuit of such cases a “priority.”

It is difficult for many non-transgender people to understand how transgender individuals think and what they are going through.  For a brief glimpse of one person’s journey and perspective, here is a portion of Diane Sawyer’s interview of Bruce Jenner: