As we have noted on previous occasions, Title VII prohibits sexual discrimination. By far, the majority of the claims are brought about by female employees against their employers.
However, Title VII also protects applicants for employment. For example, an employer cannot refuse to hire a female because of her gender. Sometimes, this claim arises from stereotypes: for example, the prospective employer may believe that a female employee will miss too much work because of child care concerns.
Gender discrimination can also occur when the employer conditions the hiring upon the grant of sexual favors. In the movies and on television, this occurs when the movie director “interviews” the prospective actress on the couch.
A recent case placed an odd spin on this latter theory. We now know that an employer violates Title VII, and commits gender discrimination, when it conditions a job offer on sexual favors. But, what if the job offered never existed?
This was the case in the reported case. A male employer offered a job position to an out- of-work female if she performed sexual acts. However, the offered job did not exist. Does this make a difference? Did the employer violate Title VII?
The fact that the female applicant was offered a non-existent job did make a difference. The court that an applicant cannot proceed with a refuse-to-hire claim when the job did not exist. The female applicant was not denied the job because of her gender. Rather, she was “denied” the job because it didn’t exist. As reprehensive as the male employer’s conduct may have been (he was a cad), it did not give rise to a gender discrimination claim.