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Employment Law: An Employer's Primer on Gender Discrimination

Introduction
For most of history, one-half of the population has conducted almost all of the business. Only in this century have women taken their place in the workforce. In a few short decades, women have integrated the workforce to the point that few people blink when they meet female professionals, female business leaders, or female workers in any field. However, women's entry into the workforce raises issues of discrimination based on gender. To ensure that employment decisions are merit based and that all employees enjoy equal protection under the law, the federal government has passed laws governing an employer's duty not to discriminate against employees on the basis of sex.

Gender-Based Discrimination in the Workplace

Federal laws protect both men and women from discrimination on the basis of sex in public accommodation, education, and employment. Employers in particular are prohibited from making employment decisions based on characteristics particular to a sex or that have a disparate impact on one sex over the other, except under very limited circumstances. Most employers know policies explicitly favoring one gender over the other are discriminatory. For example, a blanket policy barring all women from working on the assembly line is prohibited. But many employers do not know they are also prohibited from establishing policies with a disparate impact on one sex at the expense of another. An example of a rule with a disparate impact based on gender is one limiting employment on the assembly line to persons over six feet tall. Such a rule likely violates gender discrimination laws even though it makes no mention of the employees' gender because of its disparate impact on women. Even though such a rule allows some tall women to work on the assembly line, it disproportionately excludes women, whose average height is less than men's.

Protection against gender-based discrimination extends to all aspects of employment, including hiring, firing, pay, pensions, conditions of employment, and promotions. The law specifically mandates that each sex receive equal pay for equal work, which is defined as work requiring substantially the same skill, effort, or degree of responsibility. Although what is and is not "equal work" is often difficult to define precisely, it does not depend on such things as job titles or other arbitrary methods of classification. While it is illegal to pay men and women differently for the same work, these rules do not prevent employers from paying some employees more for reasons unrelated to gender, including seniority, merit, or the quality or quantity of the work performed. A good general rule is that gender should not affect any employment decision an employer makes about its employees under almost every circumstance.

However, not all employment policies involving gender are governed by anti discrimination laws. For example, employers may specify different rules of grooming and dress for male and female employees, since personal grooming is not a constitutionally protected right in the same way as the right to equal protection of the laws. A company may order male employees to wear ties while at work without requiring women do the same. However, such differentiation can be taken too far. If one sex is made to dress in a manner indicating it is subordinate to peers of the opposite sex, such as allowing men to wear suits and ties but requiring women of equal rank to wear smocks, such treatment may be discriminatory and illegal. Additionally, federal laws prohibiting sex discrimination do not apply to policies discriminating against employees because of their sexual orientation, despite the fact that "antigay" policies often have a disproportionate impact on men. This is not to say discrimination based on sexual orientation is acceptable, only that gender discrimination laws do not prevent it. Homosexual rights is an evolving area of law, and many states have passed laws protecting employees against discrimination based on sexual orientation. Also, such discrimination in the workplace can rise to the level of sexual harassment, which is prohibited by federal law.

An exception to the general rule against gender-based discrimination allows an employer to discriminate based on sex if a bona fide occupational qualification makes it reasonably necessary for the employee to be of a particular gender. An example of a bona fide qualification based on gender is a jail's refusal to hire female jailers for certain positions because the jobs would require jailers to make unannounced inspections of inmates' cells. If the inmates are male, allowing female jailers unannounced access to cells would violate the prisoners' constitutional right to privacy, while allowing a male jailer access would not. Under these circumstances, being male would be a bona fide qualification for the position.

This exception is a narrow one. A claim that a particular job requirement is a bona fide qualification based on sex cannot be based on stereotypes or other "rules of thumb"; it must be based on objective facts. For instance, employers cannot deny women physically demanding jobs based on the idea that men are typically stronger or have more stamina than women. If physical ability can affect the employee's performance of the job, the proper means to screen out potential employees unable to meet the job's requirements is to use strength tests rather than relying on subjective stereotypes. In addition, factors such as client preference for employees of a particular gender, religious preferences, or the extra costs associated with hiring members of a particular gender are not bona fide reasons for an employer to discriminate on the grounds of gender.

Questions of gender-based discrimination most often arise where the biological differences between men and women are particularly evident, such as issues of pregnancy and sexual harassment. Before looking at these areas particularly, it should be reiterated that all gender-based discrimination is prohibited regardless of whether the employee is male or female and that the rules governing discrimination because of pregnancy or sexual harassment apply equally to all employees.

Pregnancy often results in an employee leaving work for a while after the birth of a child. Generally, an employer cannot treat time off from work because of pregnancy any less favorably than time off from work caused by some kind of illness or disability. Examples of less favorable treatment include: charging women greater premiums for health insurance to cover the additional cost of pregnancy, establishing shorter time limits for maternity leave, paying those on maternity leave at a lower rate than those on other kinds of leave, making pregnant employees take mandatory leave even if they do not want to, or denying employees on maternity leave credit for seniority that others taking leave enjoy. All of these disparate and unfavorable treatments violate the law. In addition to gender-based antidiscrimination laws, maternity leave for larger employers is also governed by the Family Medical Leave Act, making unpaid maternity leave available to all employees and providing additional guidelines for the treatment of those who elect to take such leave.

Sexual harassment is another gender-related issue that can lead to serious and costly litigation. The prevention of sexual harassment is one of the most important responsibilities employers have in ensuring that gender-based discrimination does not occur in their companies. Employers must understand that sexual harassment does not always have to be sexual in nature. Instead, sexual harassment is defined as any harassment motivated by the gender of the victim. Second, sexual harassment is not limited to the harassment of one gender by the other; it is possible for employees of the same sex to harass one another.

Sexual harassment takes two forms: quid pro quo harassment, where an employee's benefits are tied to performing sexual favors or where benefits are denied for a refusal to grant such favors, and "hostile work environment" harassment, where intimidating, hostile, or offensive behavior is directed against an employee because of the employee's gender and this behavior interferes with the employee's job performance.

As serious an issue as sexual harassment is, employers should not live in fear of claims or lawsuits based on claims of harassment. A single joke or stray remark by an employee is generally not actionable because the law requires the harassment to be sustained and nontrivial. Also, the damages the employee suffers due to the harassment must be objectively reasonable. If an employee takes unreasonable offense to an otherwise innocuous remark, he or she cannot recover if his or her reaction is unusual or extreme. Instead, a wise employer takes sexual harassment issues seriously before they become a problem. Although not legally required to do so, all employers should adopt a policy against sexual harassment in the workplace, outlining what acts are prohibited and the penalties for violating the policy. These policies should be enforced, demonstrating to employees that the employer is serious about preventing sexual harassment. Finally, employers should establish a procedure allowing employees to bring claims of sexual harassment to the attention of management. Under some circumstances, employers are liable for the sexual harassment of employees even if they did not know any harassment was occurring. Employers should provide to employees a way to bring potential problems to the employer's attention before they become a serious problem.

Conclusion

Federal law generally prohibits gender-based discrimination in the workplace. The legal penalties for such discrimination can be expensive, and the stigma associated with such claims may harm a company's relation with its employees, its customers, and the public. Employers should deal aggressively with issues of gender-discrimination, adopting policies designed to prevent such discrimination and stop it if it occurs.

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