Gender discrimination, also known as sexual discrimination, is any action that specifically denies opportunities, privileges, or rewards to a person (or a group) because of gender. The practice of letting a person's gender become a factor when deciding who receives a job or a promotion, is gender discrimination. When gender is a factor in other decisions about employment opportunities or benefits, that too is gender discrimination. While most discrimination charges claim that a woman (or women) was discriminated against in favor of a man (or men), there have also been cases where males have claimed that they have been discriminated against on the basis of gender. These cases are usually referred to as "reverse discrimination."
Court rulings handed down through the years have determined that a company's responsibility not to discriminate based on sex begins even before an individual is hired. Companies can be held liable if pre-employment screening or testing is determined to be discriminatory, if applications ask unacceptable questions designed to screen for sex, or if the overall selection process is deemed to be unfair. One of the main indicators that gender discrimination has occurred in the hiring process involves the qualifications of the job applicants. While a slight difference in qualifications between a female and a male candidate does not automatically indicate gender bias (if a lesser qualified male candidate is hired instead of a female candidate, that is), a drastic difference in qualifications has almost always been upheld by the courts as a sure sign of gender discrimination. For example, if a male who dropped out of high school without receiving a diploma is hired in an administrative position over a female who had obtained her master's degree, then it is likely bias was a factor.
In addition to gender discrimination in hiring and other circumstances, there is a particular form of sexual discrimination called sexual harassment. This form of discrimination involves inappropriate words or actions of a sexual nature directed at one employee by another. To meet the criteria for harassment, the behavior in question must be both unwanted and sexual in nature. The U.S. legal system has determined that there are two main types of sexual harassment, the first being "quid pro quo," or "this for that," which occurs when one employee offers another employee a job or benefit in exchange for sexual favors, or threatens to deny that job or benefit unless sexual favors are granted. The second type of sexual harassment is referred to as "hostile work environment." In these types of cases, an employee, or a group of employees, repeatedly make lewd comments or suggestive noises, make unwanted sexual advances, or otherwise use sex to create a work environment that is intimidating or threatening to others.
FEDERAL LAWS STRONGLY PROHIBIT GENDER DISCRIMINATION
Since the social unrest of the 1960s, the federal government has been actively involved in preventing gender discrimination in the workplace. One of the most important laws covering gender discrimination on the job is the Civil Rights Act of 1964—specifically, Title VII of that act, which strictly prohibits all forms of discrimination on the basis of race, color, religion, sex, or national origin in all aspects of employment. Written during a tumultuous period in American history when many people expected the federal government to right social wrongs, the law was a monumental piece of legislation that changed the American employment landscape.
The law was passed after heated debate in both the Senate and the House of Representatives. It stated that it was unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, or national origin." The law covers hiring, dismissals, compensation, and all other aspects of employment, while also covering actual employment opportunities that are available. Examples of gender discrimination or sexual harassment that would fall under the scope of the act include:
- An employee who alleges that his or her manager only promotes male employees and keeps females in entry-level positions.
- An employee who alleges that a manager or other person in power tells jokes or makes statements that are demeaning, insulting, or offensive to women.
- A manager who makes it clear, either through his actions or words, that he wants to have sexual relations with a female employee.
- A manager who asks inappropriate and unnecessary questions about a female employee's sex life.
- A manager who touches his female employees in inappropriate ways without consent.
The law covers business with 15 or more employees, and applies to all private, federal, state, and local employers. In many states, businesses with fewer than 15 employees face the same rules thanks to local or state statutes. In addition to the hiring provisions, the law dictates that employers cannot limit or segregate employees based on sex in any way that would adversely affect their chances at promotions. It does allow for two narrow exceptions to the law—businesses may use a "bona fide" seniority or merit system to measure performance and earnings based on a quantity or quality measuring system, and employers may use ability tests to determine the most qualified candidates for a job as long as the test does not discriminate by gender in any way.
The Civil Rights Act was originally intended to address only racial discrimination. Just as the law was about to be passed, however, Representative Howard Smith of Virginia added the word "sex" to one of the opening sentences, meaning the law would also prevent sexual discrimination. This was a controversial action, as many people actually saw it as an attempt to kill the bill. The argument made by critics was that Smith added the word sex to the law knowing that many people would oppose the addition and the bill would be defeated, thus preventing racial protection from occurring as well. Smith denied this accusation and swore he had added the provision after working with the National Women's Party. Whatever his motivation, thanks to the efforts of Representative Martha Griffiths and others, the revised bill was passed into law.
One year before the landmark civil rights legislation act was passed, one specific problem regarding gender discrimination had also been addressed by the U.S. Congress. Until 1963, it was legal for employers to pay women lower wages for the same job performed by men. During World War II, when many women worked at jobs traditionally held by men while the men fought in the war, there had been an attempt by the National War Labor Board to get companies to pay women the same rate as men, but that attempt failed miserably. In fact, most of the women lost their jobs when the men came home from the war.
Before 1963, newspapers routinely ran separate Help Wanted sections in the classifieds—one for men, and one for women. It was not uncommon for the same job to be posted in both sections, but with different—and much lower—pay scales for women. In 1963, women earned 59 percent of what men earned for the same job, or for every dollar a man earned, a woman earned 59 cents.
The Equal Pay Act of 1963 was intended to end that discrepancy. The law stated that "no employer … shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." The only exemptions to the law were for seniority, established merit systems that paid all employees based on job performance, systems that paid wages based on the quantity or quality of the work produced, and wage differences that were based on some factor other than sex.
While the law did not put an end to unequal pay, it did improve things in many cases. Between 1964, when the law went into effect, and 1971, more than $26 million in back pay was issued to women as a result of court cases filed after the law was passed. Two cases that made their way through the U.S. court system—Schultz v. Wheaton Glass Co. (1970) and Corning Glass Works v. Brennan (1974)—modified the 1963 law by eliminating common loopholes. The ruling in the Schultz case said that jobs only had to be "substantially equal" rather than identical to earn protection under the law. In the Corning Glass case, the U.S. Supreme Court decided that companies could not pay women a lower wage than men simply because there was a "lower going rate" for female employees in the local marketplace. The court ruled that the only reason such a lower rate existed was because male employees would refuse to work for the lower rate that was offered to women.
The Equal Pay Act officially gives women protection under the law in regards to equal pay for equal work, but inequities still exist in almost every employment sector. According to the U.S. Census Bureau, women working full-time in 2004 still earned only 77 cents for every dollar earned by a man. Some employers still resist the need to pay men and women equally for equal work. Some even go so far as to change job titles or employment requirements just to find a way to make jobs seem different enough to justify paying women less than men. Consequently, courts are starting to use a "comparable worth" test to determine if two jobs merit the same amount of pay instead of relying on the description of the exact tasks performed on a job. There is hope that the situation will continue to improve, as it has slowly for the last 40 years.
Above and beyond standard sexual discrimination, sexual harassment has been the centerpiece of numerous court cases and legal decisions that have established government standards regarding harassment. In 1998, the U.S. Supreme Court made two important rulings that have had a significant effect on harassment claims. In Burlington Industries, Inc. v. Ellerth, the court ruled that, even if an employee did not report incidents of alleged harassment when they occurred, the company was still liable for the behavior of the employee who committed the sexual acts. In Faragher v. City of Boca Raton, the court held that an employer could be held liable for harassment if a supervisor made threats regarding punishment if an employee did not have sex with him, even if those threats were never carried out. Together, the two decisions made it clear that the court holds companies strictly liable for actions carried out by supervisors who have direct authority over the person they are harassing, if the supervisor can alter the victim's employment status through hiring, firing, refusal to promote, etc.
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
To oversee the federal civil rights legislation, including the Equal Pay Act, a separate administrative body was created as part of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission, or EEOC, was created to enforce laws that prevent discrimination based on race, sex, color, religion, national origin, disability, or age when hiring, firing, or promoting employees. Four groups—race, color, sex, and creed—were given "protected status" under the law, which was to be upheld by the EEOC. The commission is an independent regulatory body that has the power to launch investigations, file lawsuits, and create programs to eliminate discrimination.
The EEOC has been a controversial organization throughout its nearly 40-year history. Liberal politicians believe that the agency was long overdue and that it is absolutely imperative that it be proactive in identifying and fighting discrimination in the courts, while conservatives believe that the organization is a perfect example of "big government" that intrudes far too deeply into citizens' lives. The agency's strong enforcement of affirmative action policies (which actively seek to promote minorities over equally qualified nonminorities in order to address past discrimination) has been its most controversial action, as many Americans oppose affirmative action.
STEPS TAKEN BY EMPLOYERS TO END GENDER DISCRIMINATION
To prevent gender discrimination or sexual harassment from occurring in the workplace, more and more employers are adopting a zero tolerance policy towards all acts of discrimination. This usually includes the creation of an official written policy against discrimination that is circulated to all employees, as well as education and training courses for all managers (and often for all employees). In addition, the companies have to show that they are serious about implementing and enforcing the new policy by creating disciplinary standards for violations of the policy.
Another step employers can take is to conduct a thorough investigation every time a claim of discrimination or harassment is lodged. If a company identifies a situation where it believes discrimination has occurred and the company is going to be held liable, it can ease the amount of punishment handed down if it conducts a thorough in-house investigation that culminates in appropriate action taken against the person who committed the discrimination, up to and including dismissal of that employee.
When managers are trained to recognize instances of sexual discrimination or harassment, they should be told one thing above all others—not to try to handle the complaint by themselves. Instead, they should always immediately notify the human resources department that an incidence of discrimination or harassment has been reported and needs to be investigated. If the training is also provided to all employees, primary efforts should be spent on teaching employees what is and is not considered to be appropriate behavior and on helping employees understand each other better so that they can work together more effectively.
THE CURRENT STATE OF GENDER DISCRIMINATION
While many cases of sexual discrimination or harassment involve men victimizing women, there is a new backlash that has seen allegations of reverse sexual discrimination. A male cosmetics counter employee at a Dillard's department store in Florida became angry when his suit was stained by the make-up he was selling. When he asked the store for a uniform of some sort, which the female employees who worked at the make-up counter at another store in the same mall wore, he was ignored by store management. The man also alleged that he was passed over for promotions and was ineligible to win store sales contests because all of the prizes were for women. The employee filed a sexual discrimination claim with the EEOC and later filed a lawsuit against the store.
In another case, a male employee of Vision Quest National in Philadelphia filed a lawsuit alleging sexual discrimination when he was fired after complaining that he had to work nights for the company while women did not. The company had instituted a policy saying women did not have to work the night shift because the company was in a high-crime area; several female employees had threatened to quit if forced to work nights. The company claimed the policy was a bona fide occupational qualification (which is one of the EEOC's exemptions in discrimination cases), but the courts ruled that this was not the case and sided with the male employee.
In addition to reverse discrimination cases, there have also been recent instances of same-sex discrimination cases. While the EEOC holds that Title VII of the Civil Rights Act does protect against same-sex discrimination, the courts have been reluctant to rule on the matter. In 1998, however, the U.S. Supreme Court reversed the ruling of a lower court and in so doing held that same-sex discrimination was in fact covered by Title VII because the law referred to sex in every context.
Discrimination against employees on the basis of gender (as well as race, national origin, age, and/or disability) is wrong. It may also be very costly. Charges of employment discrimination that are successfully brought before the EEOC are usually resolved, in part, by issuing the plaintiff a monetary award. The trend towards larger awards has been steady and although it is unclear whether that trend will continue, some people clearly believe that it will. As a result, a new form of commercial liability insurance emerged in the late 1990s in answer to the rising costs associated with employment discrimination actions. It is called Employment Practices Liability Insurance (EPLI) and it may one day be a standard policy within commercial insurance packages.
Avoiding the need for such an insurance policy is, of course, preferable. Establishing serious policies to prevent discrimination is essential. Making these efforts visible and apparent to all will help to create a work environment free of discrimination, or at least one in which discriminatory acts are brought to the attention of management right away.
see also Equal Employment Opportunity Commission; Sexual Harassment
Bible, Jon B. "Disorder in the Courts: Proving same-sex sex discrimination in Title VII cases via 'gender stereotyping'." Employee Relations Law Journal. Spring 2006.
"Discriminatory Protective Rules Illegal." Workforce. December 2000.
Equal Employment Opportunity Commission. "EEOC Litigation Statistics, FY 1992 through FY 2005." Available from http://www.eeoc.gov/stats/litigation.html Retrieved on 10 March 2006
McDonald, James J. Jr. "Be Nice, or Be Sued." Employee Relations Law Journal. Spring 2006.
"Sexual Harassment Interpretations Give Cause for New Concerns." Workforce. May 1999.
"Title VII Sex Discrimination in the Public Sector in the 1990s: The Courts' View." Public Personnel Management. Summer 1998.
U.S. Census Bureau. "Historical Income Tables—People." Available on http://www.census.gov/hhes/www/income/histinc/p03.html. Retrieved on 5 March 2006.
U.S. National Archives and Records Administration. "The Civil Rights Act of 1964 and the Equal Opportunity Employment Commission." Available from http://www.archives.gov/index.html Retrieved on 10 March 2006
Hillstrom, Northern Lights
updated by Magee, ECDI