MightyRecruiterAlthough significant progress has been made in recognizing women and men as equally capable contributors to society and to the workforce, gender discrimination continues to be a major issue nationally. Women especially are often victim to such discrimination in the workplace despite laws that exist to protect them against unequal hiring practices, policies and pay. Furthermore, sexual harassment is a unique form of discrimination that primarily, though not exclusively, affects women. Some acknowledged biological differences between the genders can make for challenging cases, but employers should generally aim for equality.
What Is Gender Discrimination?
Gender discrimination, also known as sex discrimination, is the unfavorable treatment of employees or applicants based on their gender. Examples of unfavorable treatment include the following:
– Refusing to hire any applicants of a particular gender
– Paying a less qualified male employee more than a female working the same job
– Providing greater health insurance coverage for the families of male employees than for those of female employees
– Evaluating a female employee based on her appearance when male employees in the same position are not subject to such scrutiny
Gender Discrimination and the Law
Title VII of the Civil Rights Act of 1964 protects employees and applicants against gender discrimination by any employer with 15 or more employees. The Equal Employment Opportunity Commission takes the position that Title VII’s provisions regarding sex discrimination extend to cases involving gender identity and sexual orientation.
Equal Pay for Equal Work
Designed to close the gender pay gap, the Equal Pay Act of 1963 ruled that men and women should receive equal pay for equal work. The criteria for equal work are based on job content rather than on job titles. If men and women working for the same employer perform jobs that are substantially equal in the level of skill involved, the amount of effort required and the degree of responsibility assumed, then there should be no disparities in pay. If there is found to be a gender-based inequality, employers may not reduce any employee’s pay as a way to equalize compensation. The EPA applies to cases where the male and female employees work within the same establishment and under similar working conditions, but it does not require that they be working these jobs at the same time. For example, a male employee may vacate a position that is then assumed by a similarly qualified female. If this female employee is paid less for work that is substantially equal to that done by her immediate male predecessor, then this may be a violation of the EPA. This law covers all forms of compensation, including overtime, bonuses, paid time off, expenses and benefits.
Gender as an Occupational Qualification
Title VII includes provisions that allow employers to consider gender as a bona fide occupational qualification in exceptional cases. In such cases, an employer must be able to prove that only persons of a particular gender can perform the job in question. For example, a clothing manufacturer may place an advertisement requesting specifically male applicants for the purpose of modeling clothes that are designed for and marketed to men. Courts have taken a very narrow interpretation of the bona fide occupational qualification exception, however, as it applies to employment decisions relating to gender. A technology company, for example, may not discriminate against female job applicants on the basis that its male clients and employees feel more comfortable around other males.
Sexual Harassment
Sexual harassment is a unique form of discrimination, which can include unwelcome sexual advances, inappropriate physical contact, requests for sexual favors and any other sexual conduct that affects an individual’s employment or ability to work. When a supervisor or other figure in authority explicitly or implicitly conditions a lower-tier employee’s status upon the employee’s receptiveness to sexual conduct, this is a case of quid pro quo sexual harassment. For example, a manager may offer a raise or promotion in exchange for a sexual relationship while threatening adverse employment actions if advances are rejected. Perpetrators of sexual harassment may be either male or female, and victims may be the opposite gender or the same.
Gender discrimination can also take the form of workplace harassment that is sex-based but not sexual in nature. Examples include chauvinistic and misogynistic remarks, sexual slurs and the display of sexually demeaning material. Mild and isolated incidents are not against the law, but harassment is deemed illegal if the frequency or severity of such behavior creates a work environment that is hostile or offensive to the harassed party.
Legal Disclaimer
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.