Valid Defenses to Workplace Sex Discrimination

How a Washington business might fight an employment lawsuit

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on May 4, 2023 Featuring practical insights from contributing attorney Portia R. Moore

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As explained by the Equal Employment Opportunity Commission (EEOC), sex discrimination is the unfavorable treatment of an employee or job applicant on the basis of their sex, including sexual orientation, gender identity, and pregnancy status.

When an employee asserts discrimination in the workplace, a business or organization has the right to respond by raising an affirmative defense. In this article, you will find a brief overview of the defenses that an employer can (and cannot) raise in a sex discrimination case.

Three Valid Defenses

Both federal law and state labor regulations provide legal protections against sex discrimination.

Many employers in Washington are subject to either Title VII of the Civil Rights Act of 1964 or the Washington State Law Against Discrimination. If your business or organization is facing a discrimination claim or retaliation case from a current or former employee, there are some possible defenses available, including the following.

Bona Fide Occupational Qualification (BFOQ)

In some cases, an employer may be permitted to treat applicants or employees differently based on their sex if they can prove that they have a lawful bona fide occupational qualification (BFOQ).

“For example, you could require that firefighters be able to lift so many pounds because they have to be able to carry a person out of a building,” says Portia Moore, an employment litigation attorney with Davis Wright Tremaine in Seattle.

“Women might say, ‘Well, that’s discriminatory.’” But if the employer can prove that such a requirement is necessary for the required job duties and work performance, the BFOQ standard can prevail.

However, they are getting harder to prove, Moore adds. “Claims of discrimination are looked at harder today,” she says. “The BFOQ is still valid, but you need to make sure you know what you’re talking about.”

Legitimate, Non-Discriminatory Reason

In most cases, job applicants or employees file sex discrimination claims on the grounds that something adverse happened to them in the workplace. It could be any adverse employment action, from termination to lower pay or demotion.

If an employer can establish a legitimate and non-discriminatory reason for their decision, they can effectively defend their actions.

The key to this defense is to conduct an investigation. An investigation can indicate that an action was warranted. “You need to do an investigation and determine whether or not the employer believes that they have legitimate evidence and acted for non-discriminatory reasons,” says Moore. “The employer doesn’t have to be right; they just have to have a good faith belief.”

Employers have to show that they tried to work with the person, that they warned the person that their behavior was inappropriate, and that they gave them a chance to improve before they took action against them.

Portia R. Moore

False or Misrepresented Allegations

Finally, an employer can defend against a workplace discrimination claim by presenting evidence that the employee’s allegations are false or otherwise misleading.

However, Moore says this defense is particularly difficult, because it is often considered victim-blaming or victim-shaming.

“I think you have to do this very gently,” she says. “But you can do it if you have evidence that it is a false claim.” Moore notes that the person making discrimination claims is often sympathetic to a jury, and that businesses need to be “very, very careful” about accusing alleged victims of lying.

Three Defenses Employers Should Not Raise

In some cases, employers undermine their own interests by trying to fight employment discrimination claims with an invalid legal defense. Here are three of the most common improper defenses that employers try to raise against sex discrimination land sexual harassment lawsuits:

  1. Denial: Moore says one of the biggest mistakes she sees business make is claiming that they simply didn’t discriminate or cause a hostile work environment. “That causes the jurors to go back in the jury room and talk about the business and talk about everything they did wrong,” she says. Simply denying the allegations is a quick way to lose your case.
  2. My Business, My Choice: Business owners and managers have wide discretion to make their own hiring and firing employment practices. That being said, they cannot simply do whatever they want—discrimination laws protect employees against sex discrimination. A “choice” to discriminate on the basis of sex or gender is an employment law violation.
  3. Ignorance as an Excuse: In some other cases, employers try to assert that a lower-ranking supervisor or co-worker was responsible for any alleged discrimination. In effect, they try to claim ignorance as an excuse. Federal and state court decisions have found that ignorance is not a valid defense in an employment discrimination lawsuit. Plus, juries have proven that they hold businesses to a higher standard than individuals, Moore says. “They’re going to hold you vicariously liable. They’re going to say you should have known.”

Ultimately, a proactive approach is always the most effective way to defend against an employment discrimination lawsuit, beginning with strong employment policies.

“Employers have to show that they tried to work with the person, that they warned the person that their behavior was inappropriate, and that they gave them a chance to improve before they took action against them,” Moore says.

If you have any specific questions about the defenses that your company or organization can (or cannot) raise when facing a workplace sex discrimination lawsuit, contact an experienced Washington employer defense attorney for immediate assistance with your employment decisions.

For more information about related areas of law, read our overview articles on labor law, employment law for employers and wrongful termination.

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