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NORTH DAKOTA GENDER DISCRIMINATION & SEXUAL HARASSMENT

I. Introduction

To protect a business from gender discrimination and sexual harassment, one must first understand what gender discrimination and sexual harassment consists of. North Dakota has a state policy against discrimination, which is as follows:

"It is the policy of this state to prohibit discrimination on the basis of race, color, religion, sex, national origin, age, the presence of any mental or physical disability, status with regard to marriage or public assistance, or participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer; to prevent and eliminate discrimination in employment relations, public accommodations, housing, state and local government services, and credit transactions; and to deter those who aid, abet, or induce discrimination or coerce others to discriminate."

N.D. Cent. Code § 14-02.4-01. The above identified classes are known as "protected classes." The federal counterpart is the Civil Rights Act of 1964 (Title VII). The North Dakota Human Rights Act applies to employers have one or more employees. Title VII applies to all private employers having 15 or more employees.

II. Definitions

"Age"
means at least 40 years of age.
"Disability"
means a physical or mental impairment that substantially limits one or more major life activities.
"Discriminatory Practice"
means an act or conduct which results in the unequal treatment or separation or segregation of any person under a "protected class", or denies or prevents, limits or adversely affects the benefit of enjoyment by that person.
"Gender"
means male or female, also referred to as "sex."
"National Origin"
means the place of birth.
"Sex"
in addition to male or female, it also includes pregnancy and childbirth.
"Sexual Harassment"

includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical conduct or other verbal or physical conduct or communication of a sexual nature when:

  1. Submission to that conduct or communication is made a term or condition of obtaining employment;
  2. Submission to or rejection of that conduct or communication is used as a factor in decisions in affecting that individual's employment; or
  3. That conduct or communication has the purpose or effect of substantially interfering with an individual's employment.

N.D. Cent. Code § 14-02.4-02.

III. Gender Discrimination

Gender discrimination is discrimination based upon a persons sex. Common claims of gender discrimination consists of unequal pay or unequal promotions. The employee must prove that he/she was treated differently from others in a similar situation, that the dissimilar treatment was intentional, and that he/she was adversely affect.

The employee (plaintiff) has the initial burden of proving, by a preponderance of the evidence, that discrimination occurred. The employee must show:

  1. that he/she belongs to a minority;
  2. that he/she applied for and was qualified for a job/promotion/raise, etc.;
  3. that despite employee's qualifications, he or she was rejected; and
  4. that after such rejection, person(s) with similar qualifications received the job/promotion/raise, etc.

Proof of these elements create a presumption that the employer unlawfully discriminated against the employee. The employer must then rebut this presumption by proving, by a preponderance of the evidence, that the employer's action was motivated by one or more legitimate, nondiscriminatory reasons (i.e. poor work performance, reduction in force, etc.). If the employer can prove this, the burden then shifts back to the employee to prove that the reason(s) offered by the employer are untrue.

It is not a discriminatory practice when religion, sex, national origin, physical or mental disability or marital status is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business. N.D. Cent. Code 14-02.4-08.

IV. Sexual Harassment

What is sexual harassment? It depends on who you ask. The severity of sexual harassment must be judged by a "reasonable person" standard. It also must be so offensive as to alter the terms and conditions of the employee's employment.

V. Same-Sex Sexual Harassment

In March 1998, the United States Supreme Court found that same-sex sexual harassment is actionable under the Civil Rights Act (Title VII). The employee need not show that the harassment occurred because of the employee's sex. Rather, the employee is only required to satisfy the definition of "sexual harassment." There is no requirement to prove that the harassment affect one gender differently than the other, or that the harasser is homosexual.

Damages

If a court determines that the employee was discriminated against, the court may order that the employer cease engaging in unlawful discriminatory practices. The Court may also order that the employer pay money damages to the employee which includes back pay, current wages, attorney's fees.

The federal counterpart, Title VII, places a cap on the total amount of money damages an employee may receive. This amount depends on the number of employees and employer has. For instances, the cap for an employer with more than 14 employees and less than 101 employees, is $50,000. The cap significant increases with the number of employees.

Michelle Donarski is an attorney with the law firm of Anderson & Bottrell, State Bank Center, Suite 302, 3100 13th Avenue SW, Fargo, ND 58103 (701) 235-3300.