1. Chapter 7 Gender Discrimination Employment Law for BUSINESSsixth edition Dawn D. BENNETT-ALEXANDER and Laura P. HARTMAN McGraw-Hill/Irwin Copyright © 2009 by The McGraw-Hill Companies, Inc. All rights reserved.

2. Statutory Basis It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . Sex [gender]. . . . Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. 2000e-2 (a). (1) No employer . . . shall discriminate between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. . . . Equal Pay Act, 29 U.S.C.A. §206(d). 7 – 2

3. Statutory Basis (continued) (k) The term “because of sex” or “on the basis of sex” includes, but is not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. . . . Pregnancy Discrimination Act, 42 U.S.C. §2000e. 7 – 3

4. Federal Laws Prohibiting Gender Discrimination in Employment Title VII of the CRA of 1964 Sexual harassment is a type of gender discrimination which we will cover in Chapter 8. While race discrimination accounts for the highest percentage of claims brought under Title VII, gender suits account for the second highest percentage. Gender discrimination covers both males and females Equal Pay Act (1963) Pregnancy Discrimination Act (1978) 7 – 4

5. Does it Really Exist? Nearly half the workforce is female Females represent two-thirds of all poor adults Only 15 percent of women work in jobs typically held by men Women earn about 77 percent of men’s pay The gender-based wage gap is present in every profession Glass ceilings In Fortune 1000 industrial and Fortune 500 service firms, 97 percent of top managers are white males Gender was not originally part of the Civil Rights Act By law it is the person’s ability that must be the basis for workplace decisions 7 – 5

6. Gender Myths Women are better suited to repetitive, fine motor skill tasks. Women are too unstable to handle jobs with a great deal of responsibility or high pressure. Men make better employees because they are more aggressive. Men do not do well at jobs requiring nurturing skills, such as day care, nursing, elder care, and the like. When women marry they will get pregnant and leave their jobs. 7 – 6

7. Gender Myths (continued) When women are criticized at work, they will become angry or cry. A married woman’s income is only extra family income. A woman who changes jobs is being disloyal and unstable. A woman should not have a job that requires her to have lunch or dinner meetings with men. Women should not have jobs that require travel or a good deal of time away from home. 7 – 7

8. Appearance-Based Discrimination Attractive men and women earn more than plain men and women Overweight men and women earn less than men and women who are average or underweight Taller men and married men earn more than shorter men and single men Plain women tend to attract the lowest quality husbands; beautiful women do no better in marriage than average women; looks don’t seem to affect men’s marriage prospects. 7 – 8

9. Recognizing Gender Discrimination As with race, there can be both disparate treatment and disparate impact cases. Read disparate treatment case dealing with two women firefighters : Wedow v. City of Kansas City, MO 442 F3d 441 (8th Cir. 2006) Text page 380 Disparate impact – Title VII applies to facially neutral policies when they screen out women at an unacceptable rate and are not shown to be directly correlated to one’s ability to do the job, i.e., height and weight requirements. “Gender-Plus” cases are those where the employer permits the hiring of women but not if there are other factors present, i.e., no women who are pregnant, or married, or are over a certain age, or who have children of a certain age. See Phillips v. Martin Marietta Corp. 400 U.S. 542 (1971) Text page 383 7 – 9

10. Gender Stereotyping Prohibited by Title VII Workplace decisions based on: Ideas of how a particular gender should act or dress What roles they should perform Read Price Waterhouse v. Hopkins 490 U.S. 228 (1989) Text page 383 7 – 10

11. Dress Codes & Grooming Codes Title VII does not prohibit an employer from using gender as a basis for reasonable grooming codes. Employers are given a good deal of leeway in setting workplace dress codes as long as they are reasonable and appropriate and do not discriminate on the basis of gender. Employers can use reasonable standards of what is generally thought to be male- or female-appropriate attire in a business setting. Read O’Donnell v. Burlington Coat Factory, 656 F. Supp 263 (1987): Court found that the wearing of a smock by women, and business attire by men similarly situated, has the effect of making the women appear to be of less stature than the men. 7 – 11

12. Customer or Employee Preferences Customer preference is not a legitimate and protected reason under Title VII to treat otherwise-qualified employees differently based on gender. Hooters “family” restaurant: could use gender as a BFOQ to protect its female-only server policy if it can show that the gender of its servers is a bona fide occupational qualification reasonably necessary to the particular job done by the servers. For instance, if Hooters declared itself to be in the business of entertainment by use of its servers – like the Playboy Club bunnies. However, Hooters has chosen to classify itself as a “family restaurant” which means that either gender can serve its food and its female-only server policy violates Title VII’s prohibition against gender discrimination. 7 – 12

13. Equal Pay and Comparable Worth The Equal Pay Act was passed in 1963 to amend the Fair Labor Standards Act to prohibit gender-based wage discrimination. EPA prohibits employers from using gender as a basis for paying lower wages to an employee for equal work “on jobs, the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.” Despite the EPA, women earn on average 77 cents for every dollar earned by men. EPA is concerned with the content of the job, not the title of the job. Employers cannot pay different wages simply by naming similar jobs differently. An employer cannot reduce the wage rate of the higher paid male employee to comply with the EPA! The employer must raise the lower wage. 7 – 13 McGraw-Hill/Irwin

14. EPA (continued) It is permissible under EPA to have differences in wages if: Based on seniority or merit systems Based on systems that measure earnings by quantity or quality of production (incentive pay) Based on a differential based on “any other factor other than gender” (length of service, education level, etc.) The EPA overlaps with Title VII’s general prohibition against discrimination in employment on the basis of gender. EPA and Title VII are both federal laws enforced by the EEOC, but EPA has a longer statute of limitations than Title VII. (2-3 yrs from alleged violation rather than 180 days) 7 – 14

15. Lilly Ledbetter Fair Pay Act (FPA) In the Ledbetter v. Goodyear Tire and Rubber Co, Inc. 550 U.S. 618 (2007) case, the Supreme Court held that a woman who had been the victim of illegal pay discrimination over a long period of time but who did not discover it until nearly her retirement, was prohibited under Title VII to file a claim with the EEOC because she was past the 180 days after the initial act of discrimination (which the court said was the date the pay was agreed upon), so she couldn’t bring her cause of action. In response to this perceived unfairness, Congress passed the Lilly Ledbetter Fair Pay Act in January 2009 to amend Title VII to allow the statute of limitations to start each time a paycheck is issued based on the discriminatory pay. 7 – 15

16. Gender as a BFOQ Title VII permits gender to be used as a bona fide occupational qualification under certain limited circumstances. BFOQ can be used when there is a legitimate need for authenticity, like a model for a women’s clothing line. BFOQ as a defense generally found inapplicable. 7 – 16

17. Pregnancy Discrimination The Pregnancy Discrimination Act (PDA) amended Title VII to prohibit sex discrimination on the basis of pregnancy and related conditions. 182% increase in the filing of pregnancy discrimination charges over the past 10 years Inability to perform vs. pregnancy If an employee is temporarily unable to perform the duties of the job because of pregnancy, law requires that the inability to perform be the issue, not the fact that the employee is pregnant. Pregnant employee should be treated just as any other employee who is temporarily unable to perform his/her job requirements, i.e., just as they treat any other employee with a short-term disability. 7 – 17

18. Fetal Protection Policies Policies an employer institutes to protect the fetus or the reproductive capacity of employees. May limit or prohibit employees from performing certain jobs or working in certain areas. Many times these policies only exclude females. Read UAW v. Johnson Controls, Inc. 499 U.S. 187 (1991) Text p. 395. Court held that fetal protection policies which prohibited women, but not men from holding certain positions, discriminate on the basis of gender in violation of Title VII. Court said if the employer fully informs the woman of the risk, and the employer has not acted negligently, then it’s up to the woman to decide whether they wish to risk their reproductive health. 7 – 18

19. Summary Discrimination on the basis of gender is illegal. Gender discrimination has many manifestations. In determining whether employment policies are gender biased, look at the obvious, but also look at the subtle bias that may arise from seemingly neutral policies adversely impacting a given gender, such as height and weight requirements. Both types of discrimination are illegal. Where employees must be treated differently, ensure that the basis for differentiation is grounded in factors not gender-based but, instead, address the actual limitation of the employee or applicant’s qualifications. 7 – 19

20. Summary (continued) Dress codes are not prohibited under Title VII, but dress code differences based on gender should be reasonable and not based on gender stereotypes. Logistical concerns of bathrooms, lactation rooms, and other such matters should be handled in a way that does not overly burden or unnecessarily exclude either gender. Under the PDA, employers must treat a pregnant employee who is able to perform the job as they treat any other employee with a short-term disability. Because of health and other considerations, an employer may have policies excluding or limiting pregnant employees if there is a reasonable business justification for such policies. 7 – 20

21. Summary (concluded) If a gender based claim is received, take the employee’s complaint seriously, promptly and thoroughly investigate all complaints in a confidential manner, and take appropriation action, i.e., make sure the punishment fits the crime. 7 – 21

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