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Your Rights Sex / Gender Discrimination

Outten & Golden LLP

Clark Law Group

This page provides answers to the following questions:

1. What is sex or gender discrimination?

2. Which federal law covers sex or gender discrimination?

3. Who is covered by the law?

4. Can an employer pay me less because I'm a woman?

5. Is it illegal to give different benefits to male and female employees?

6. Can an employer treat me differently because I can or have become pregnant?

7. Can an employer treat me differently because I am unmarried or married?

8. Can an employer treat me differently because I have kids or have to care for a family member?

9. What's the difference between sex discrimination and sexual harassment?

10. Is sex ever a qualification for a certain job?

11. My company has an affirmative action plan. How can this affect me?

12. Can my employer make me wear a dress or feminine clothing?

13. Are height, weight, or lifting requirements legal?

14. Is my employer required to allow me to breastfeed on the job?

15. What does the term "glass ceiling" mean?

16. What is the difference between sex discrimination and gender identity discrimination?

17. Who enforces the law?

18. What are the remedies available to me?

19. How can I file a complaint?

20. More Information About Sex/Gender Discrimination:

1. What is sex or gender discrimination?

Sex or gender discrimination is treating individuals differently in their employment specifically because an individual is a woman or a man. If you have been rejected for employment, fired, or otherwise harmed in employment because of your sex or gender, then you may have suffered sex or gender discrimination.

In everyday language as well as in the law, the terms “gender” and “sex” are used inter-changeably, but the two terms have different meanings. Social scientists use the term “sex” to refer to a person's biological or anatomical identity as male or female, while reserving the term “gender” for the collection of characteristics that are culturally associated with maleness or femaleness. Discrimination is generally illegal regardless of whether it is based on sex, or gender, or both sex and gender.

Here are some examples of potentially unlawful sex/gender discrimination that women, for example, may face:

  • Hiring/Firing/Promotions: You apply for a job for which you have experience and excellent qualifications, but you are not hired because some of the company's long-time clients are more comfortable dealing with men; you are told that you are laid off due to company cutbacks and reorganization, while men in the same job and with less seniority than you keep their jobs; you have worked for your company for several years, receiving exemplary reviews and an employee-of-the-year award, yet each of the five times you have applied for promotions, the positions you applied for are instead filled by less qualified men.
  • Pay: You worked your way up from the position of cook's helper to chef. A male chef with similar training and work experience was recently hired, and you find out that he will be paid more than you; you are a top salesperson for your company, but are moved to a less desirable territory while a man with much lower sales is given your territory and client base, enabling him to make much more in commissions than you will make for several years.
  • Job Classification: You work at a company for four years and put in many hours of overtime. After you return from having a baby, you tell your employer that you will not be able to put in as many hours of overtime. Your position is then changed to a lower level and you get less pay, while male coworkers in similar positions are allowed to cut back their overtime hours for personal reasons without any changes to their positions or pay.
  • Benefits: Your company's health insurance policy does not cover your spouse, because it is assumed that he will have his own benefits, while your male coworkers have their wives covered by the policy. Because your husband is between jobs, you have to pay increased health benefits on his behalf that your coworkers do not pay for their wives.

If any of these things have happened to you on the job, you may have suffered sex or gender discrimination. Sex or gender discrimination may be accompanied by other forms of illegal discrimination as well, such as age, race, or disability discrimination. Pregnancy discrimination and sexual harassment are also considered forms of sex discrimination under the law.

2. Which federal law covers sex or gender discrimination?

Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon sex. This law makes it illegal for an employer to discriminate against individuals because of their sex in hiring, firing, and other terms and conditions of employment, such as promotions, raises, and other job opportunities.

The laws of most states also make it illegal to discriminate on the basis of sex. For more information, see question 19 below.

3. Who is covered by the law?

Title VII covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

Many states also make it illegal to discriminate on the basis of sex. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

The law's protections apply to both current workers and job applicants. If you are a current employee and are fired, not promoted, or not accommodated due to your sex or gender, you are protected. If you are not hired due to your sex or gender, you are also protected.

4. Can an employer pay me less because I'm a woman?

No. Both Title VII and the Equal Pay Act (EPA) 29 U.S.C.  206(d) make it illegal to discriminate on the basis of sex in the payment of wages or benefits. The laws against discrimination in compensation cover all forms of compensation, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.

The EPA requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. It is the content of the job, not job titles, that determines whether jobs are substantially equal. Unlike the EPA, Title VII does not require that the job of the person claiming discrimination be substantially equal to that of a higher paid person of the other sex, nor does Title VII require the person claiming discrimination to work in the same establishment as the higher paid person. However, Title VII, unlike the EPA, requires proof of intent to discriminate on the basis of sex, while the EPA does not require proof of discriminatory intent.

Under the EPA, employers are prohibited from paying unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment. The law defines these terms as follows:

  • skill: measured by factors such as the experience, ability, education, and training required to perform the job. The key issue is what skills are required for the job, not what skills the individual employees may have.
  • effort: the amount of physical or mental exertion needed to perform the job.
  • responsibility: the degree of accountability required in performing the job.
  • working conditions: encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation, and (2) hazards.

Note that:

  • Employers may not reduce wages of either sex to equalize pay between men and women.
  • A violation of the EPA may occur where a different wage is or was paid to a person who worked in the same job before or after an employee of the opposite sex.

While there are some differences between Title VII and the Equal Pay Act, the federal laws are enforced by the same administrative agency, the Equal Employment Opportunity Commission (EEOC).

5. Is it illegal to give different benefits to male and female employees?

Yes. Even though differences between the sexes may result in different benefit costs to an employer, it is against the law for an employer to discriminate between men and women with regard to benefits.

Employers are also not allowed to condition benefits available to employees and their spouses and families on whether the employee is the “head of the household'” or “principal wage earner” in the family unit, since that status bears no relationship to job performance and discriminatorily affects the rights of women employees.

An employer cannot make benefits available:

  • for the wives and families of male employees where the same benefits are not made available for the husbands and families of female employees;
  • for the wives of male employees which are not made available for female employees; or
  • for the husbands of female employees which are not made available for male employees.

It is also against the law for an employer to have a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex, or which differentiates in benefits on the basis of sex.

6. Can an employer treat me differently because I can or have become pregnant?

No. Pregnancy discrimination, defined as discrimination on the basis of pregnancy, childbirth, and related conditions, is illegal under Title VII. In 1978, Congress passed the Pregnancy Discrimination Act (P.D.A.) 2000e(k) of the Title VII of the Civil Rights Act of 1964 amending Title VII to clarify that discrimination based on pregnancy is a form of sex discrimination.

Under the law, pregnancy is considered a temporary disability, as are related medical conditions such as severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and any other related medical condition. Title VII prohibits employers from treating pregnant women differently from other temporarily sick, injured or disabled employees. Employers must therefore give pregnant employees and temporarily physically disabled new mothers the same treatment and benefits that they give to employees with other temporary disabilities.

7. Can an employer treat me differently because I am unmarried or married?

Marital status discrimination is not prohibited by the federal laws generally applicable to private employment, which prohibit discrimination based on race and color, sex, religion, national origin, age and disability. However, several states have laws making it illegal to discriminate on the basis of marital status.

However, marital status discrimination and sex/gender discrimination can often coexist. If, for example, as a married woman you are rejected for a position involving frequent overnight trips with male coworkers because it is assumed your husband would be jealous, and the position is offered to a married man, the problem may be sex/gender discrimination instead of marital status discrimination. It is illegal for your employer to make assumptions based on gender stereotypes, even if those assumptions are motivated in part by your marital status. For more information, see our page on family responsibilities discrimination.

8. Can an employer treat me differently because I have kids or have to care for a family member?

Parental status discrimination is not prohibited by the federal laws generally applicable to private employment, which prohibit discrimination based on race and color, sex, religion, national origin, age and disability. However, several states have laws making it illegal to discriminate on the basis of parental status.

However, parental status discrimination and sex/gender discrimination can often coexist. If a woman with young children, for example, is rejected for a position involving frequent travel and overtime work because it is assumed that she should or will want to spend time with your children, and the position is offered to a man with small children, the problem may be sex/gender discrimination instead of parental status discrimination. It is illegal for your employer to make assumptions based on gender stereotypes, even if those assumptions are motivated in part by your parental status. For more information, see our page on family responsibilities discrimination.

If you need leave from work to care for a newborn or a sick child or family member, you may also be protected by the Family & Medical Leave Act. For more information, see our page on family leave.

9. What's the difference between sex discrimination and sexual harassment?

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Although Title VII does not specifically use the words “sexual harassment,” courts have held that sexual harassment is a form of illegal sex discrimination. While the laws of some states specifically use the words “sexual harassment,” other states have followed the legal developments under federal law by determining that sexual harassment is a form of illegal sex discrimination.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are all types of sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. For more information, see our page on sexual harassment.

As noted throughout this page, there are other forms of discrimination on the basis of sex that are not sexual harassment, such as discrimination in hiring, firing, promotions or benefits, pay discrimination, and gender stereotyping. In addition, it is possible to have illegal, sex-based harassment that is not of a sexual nature, sometimes called gender-based harassment. An example of this would be a supervisor who makes frequent derogatory comments about women and constantly refers to female employees as “girls” or “bitches.”

10. Is sex ever a qualification for a certain job?

Only in very limited situations. Title VII makes an exception to prohibiting sex discrimination when sex is an essential part of a particular job – also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company needs an actor to play a female role or a “wet nurse,” then being a woman is a BFOQ for those positions.

The BFOQ exception as to sex has been interpreted very narrowly. Jobs that are considered “men's jobs” or “women's jobs” tend to unnecessarily deny employment opportunities to one sex or the other. Therefore, in the following situations, the BFOQ concept will not apply:

  • The refusal to hire a woman because of her sex based on assumptions of the comparative employment characteristics of women in general. For example, the assumption that the turnover rate among women is higher than among men.
  • The refusal to hire an individual based on stereotyped characterizations of the sexes. Individuals should be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group. Such stereotypes include, for example, that men are less capable of assembling intricate equipment, or that women are less capable of aggressive salesmanship.
  • The refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers except where it is necessary for the purpose of authenticity or genuineness, such as hiring an actor or actress.

11. My company has an affirmative action plan. How can this affect me?

Affirmative action goals and timetables are targets for equality, parity and a level playing field. Like goals for profits or productivity, they mark and measure progress, but do not carry legal penalties. Quotas are illegal unless court-ordered to rectify discrimination. Your company's affirmative action plan may be voluntary or may be required by law, if your company has contracts with federal, state or local governments.

The only Supreme Court case dealing with affirmative action for women Johnson v. Transportation Agency, 480 U.S. 616 (1987) recognized that evaluations that were supposedly merit-based may still reflect biases. The justices upheld an affirmative action plan that promoted a woman over a man with slightly higher score. The scores in question were based on interviews by a team of men, one of whom had called the woman “a rabble-rousing skirt.”

Much of the opposition to affirmative action is framed on the grounds of so-called “reverse discrimination and unwarranted preferences.” However, less than 2 percent of the 91,000 employment discrimination cases pending before the Equal Employment Opportunities Commission are reverse discrimination cases. Under the law as written in Executive Orders and interpreted by the courts, anyone benefiting from affirmative action must have relevant and valid job or educational qualifications.

If you are a woman at a company with an affirmative action plan, the plan may help eliminate some of the barriers to advancement women have historically faced and may have actually faced working for your employer. You may wish to consult with your company's human resource department or your personnel handbook to learn more about how the plan may benefit you and other female employees.

12. Can my employer make me wear a dress or feminine clothing?

In an important U.S. Supreme Court case known as Price Waterhouse, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (discrimination against a person because that person does not conform to traditional sex stereotypes is covered by Title VII) the Court ruled that discrimination based on gender stereotyping is illegal sex discrimination under Title VII. In Price Waterhouse, the employer delayed a female employee's promotion, in part based on evaluation comments describing her as “macho” and advising her to "take a course in charm school.” This woman was treated differently because of her gender, and because she seemed too “male.” Therefore, a female employee who is discriminated against because she wears pants or other gender-neutral clothing may be able to argue that she faced discrimination based on gender stereotypes or notions of appropriate dress for women.

Many employers have dress codes or otherwise expect their employees to dress according to the customs of the profession. Nothing in the Price Waterhouse case prevents an employer from asking that both male and female employees dress professionally. For example, an employer who requires its male employees to wear neckties at all times and its female employees to wear dresses or skirts would not likely be found to have violated the law, as courts have previously allowed employers to require employees to wear “suitable” business attire, even when the standards for what is considered suitable vary by sex. However, California has passed a specific law making it illegal for employers to prevent an employee from wearing pants because of sex.

An employer who requires employees to wear uniforms which are different for males and females is not engaging in discriminatory practices as long as the uniforms for both males and females are “suitable.” For example, women cannot be forced to wear short shirts or sexually revealing uniforms if men are not required to do so.

13. Are height, weight, or lifting requirements legal?

It depends. The general principle is that the requirements must be necessary for the safe and efficient performance of job-related tasks, because such requirements tend to disproportionately disadvantage women and members of some racial and ethnic groups.

Statistics show that minimum height requirements adversely affect women, as well as members of some racial and ethnic groups, because those groups on average are shorter than men or members of other races or national origins. An employer therefore must show that the requirement is necessary for the safe and efficient performance of job-related tasks in order to justify a minimum height requirement. If there is a less restrictive way to accomplish the same goal other than a minimum height requirement, employers will be required to use that alternative to avoid liability for discrimination.

For example, if a restaurant had a minimum height requirement for servers, presuming that shorter people generally cannot carry the required weight on a tray, a less restrictive alternative could be the requirement that all servers must be able to carry a set of minimum amount of weight on a tray. Of course, even if a restaurant or any other business implemented a minimum strength or lifting requirement, that requirement also must not have a significant adverse affect on a protected class of people unless required for the safe and efficient performance of job-related tasks.

Weight requirements may be considered discriminatory because they often have an adverse impact on certain classes of people. In addition to problems with discrimination on the basis of sex or national origin, weight requirements also may constitute discrimination on the basis of disability. While weight-based disability claims have generally failed under the federal anti-discrimination law, the Americans with Disabilities Act, they have occasionally succeeded under the laws under certain states which either define disability differently or specifically make it illegal to discriminate on the basis of weight or personal appearance. It is also difficult to justify weight requirements as job-related if the purpose for the requirement is based primarily on physical appearance rather than the ability to perform a specific job-related task.

14. Is my employer required to allow me to breastfeed on the job?

Since an increasing number of new mothers return to work shortly or within three months after giving birth, breast-feeding has become a more common workplace issue. Employers now encounter such practical and legal issues as providing nursing women with an appropriate place to pump and store breast milk while at work; granting personal leave, modified schedules, or altered job duties to employees who breast-feed; and dealing with the social acceptability of breast-feeding or expressing milk within the workplace.

Federal law does not directly address the legality of breast-feeding on the job or explicitly protect nursing mothers. Some states, however, have passed laws either to make it illegal to discriminate against women who breast feed, or to specifically require that employers accommodate nursing mothers at work by providing adequate facilities for breast-feeding or expressing milk.

Even if there is not legal protection in your state affecting your employment, you may be able to encourage your employer to voluntarily cease discrimination against mothers who breast-feed and/or to educate others in your workplace to help improve your employment situation. According to the La Leche League, studies indicate that women who continue to breastfeed once returning to work miss less time from work because of baby-related illnesses, and have shorter absences when they do miss work, compared with women who do not breastfeed. For more information, see Working it Out: Breastfeeding at Work.

15. What does the term "glass ceiling" mean?

The term “glass ceiling” refers to an artificial barrier based on attitudes or bias that prevents qualified women from advancing into mid-level and senior-level management positions. In other words, women can advance so far, but hit an invisible barrier and can advance no farther. If you feel that you have been discriminated against based on a “glass ceiling” at your company, you may bring a claim under Title VII or state or local anti-discrimination laws.

Employers can and should take some or all of the following steps to eliminate the glass ceiling from their companies.

hiring:

  • Make sure that nondiscriminatory practices and requirements are used.
  • Examine subjective or neutral criteria to ensure that they do not have a disproportionate impact on women.
  • Set up workforce diversity programs to eliminate disadvantages and create a work environment where all employees feel comfortable.
  • Make sure to hire employees based on true qualifications, not stereotypical ideas of a candidate's qualifications.

promotion:

  • Monitor and ensure the development of female employees.
  • Establish network and mentoring programs to help train and inform employees of opportunities for promotion.
  • Require all job postings to state promotion criteria and affirm the employer's commitment to diversity in management.

16. What is the difference between sex discrimination and gender identity discrimination?

The phrase “gender identity” refers to one's self-identification as a man or a woman, as opposed to one's anatomical sex at birth. Usually, one's gender identity matches one's anatomical sex: people born with the physical characteristics of males usually identify as men and those with physical characteristics of females identify as women. However, for some people, gender identity does not always align with one's anatomical sex. Thus, for transsexual people, gender identity and anatomical sex are not in agreement. Someone born male may have a strong internal self-image and self-identification as a woman, or someone born female may have a strong internal self-image and self-identification as a man. Some transsexual people seek medical treatment in the form of hormone therapy or surgery to correct their physical sex to agree with their gender identity. The term “transgender” is an umbrella term to describe anyone who in one or more ways does not conform to gendered stereotypes of gender identity and/or gender expression. Transgendered people can face serious discrimination in the workplace, generally because of a failure to conform with traditional sex stereotypes or gender roles.

Until very recently, federal and state courts have uniformly held that transsexual people are not protected under Title VII (of the Civil Rights Act), the law that makes sex discrimination illegal, on the grounds that Congress did not intend when passing the law for the term "sex" to protect transsexuals. However, in some more recent court decisions, courts have concluded that transsexual persons are protected from discrimination under Title VII and other sex discrimination statutes, based upon a more recent U.S. Supreme Court case Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (discrimination against a person because that person does not conform to traditional sex stereotypes is covered by Title VII) that considers discrimination based on gender stereotyping to be sex discrimination which is illegal under Title VII. The law is still developing in this area, but based on current trends it is likely that more federal and state courts will find that discrimination on the basis of gender identity is a violation of currently existing sex discrimination laws. For more information, please see our page on gender identity discrimination.

17. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination related to sex discrimination in workplaces of 15 or more employees. Most states have their own agencies that enforce state laws against discrimination (see below).

18. What are the remedies available to me?

Victims of sex discrimination can recover remedies to include:

  • back pay
  • hiring
  • promotion
  • reinstatement
  • front pay
  • compensatory damages (emotional pain and suffering)
  • punitive damages (damages to punish the employer)
  • other actions that will make an individual "whole" (in the condition he or she would have been but for the discrimination)

Remedies also may include payment of:

  • attorneys' fees
  • expert witness fees
  • court costs.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.

Your state law may allow for greater or different remedies than federal law (see question 19 below).

19. How can I file a complaint?

For more information on filing a complaint for sex/gender discrimination, select your state from the map or list below.

united states map Washington Oregon Idaho Montana North Dakota Nevada Utah Arizona California New Mexico Colorado Wyoming South Dakota Nebraska Kansas Texas Oklahoma Louisiana Mississippi Arkansas Alabama Tennessee Missouri Iowa Minnesota Wisconsin Michigan Illinois Indiana Florida Georgia South Carolina North Carolina Virginia Kentucky Ohio West Virginia Pennsylvania New York Vermont Massachusetts Rhode Island Connecticut New Jersey Delaware Maryland Maine New Hampshire District of Columbia Alaska Hawaii Puerto Rico
 

20. More Information About Sex/Gender Discrimination:

National Organization for Women: Women-Friendly Workplace Campaign
Equal Rights Advocates: Know Your Rights: Sex Discrimination
National Partnership for Women and Families: Workplace Discrimination
AFL-CIO: Rights@Work - Discrimination: Gender

This page was updated on December 19, 2008



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