Gender or Sex Discrimination

Title VII and the FEHA prohibit sex discrimination in employment.

Terms or Conditions of Employment

Sex discrimination is treating an employee or employees differently because of their gender. Whenever this discrimination affects the "terms or conditions of employment", it is illegal.

"Terms or conditions of employment" means just about anything relating to someone's job: their position, pay, title, hours, vacations, most everything is a term or condition of employment. Whether or not a person is hired is also considered a term or condition of employment.

Disparate Treatment & Disparate Impact

There are two types of sex discrimination: "disparate treatment" & "disparate impact".

Disparate Treatment

Disparate treatment is straightforward discrimination. Simply put, it is treating a person differently because of his or her sex.

Disparate Impact

Disparate Impact Discrimination is more complicated. "Disparate Impact" is where some type of company policy excluded a certain individuals from the job or from promotions. The policy wasn't designed to exclude them; that was just the unfortunate result.

One example arose often in fire departments. These agencies had various strength requirements for job applicants. Women were frequently unable to meet these requirements. In some instances, the requirements were absolutely necessary to ensure the firefighters were qualified. But in many instances, the requirements were simply too high; the were more than was necessary. Qualified women were therefore being excluded unnecessarily. This does not mean the fire departments were necessarily trying to exclude women. That was just the result of their policy; it had a disparate impact upon women. Because the policy wasn't sufficiently job-related (too much strength was required) there was discrimination.

Equal Pay Act

Under the Equal Pay Act, an amendment to the Fair Labor Standard's Act, an employer may not discriminate in wages on the basis of sex. When male and female employees perform jobs which require substantially equal skill, effort, and responsibility, and are performed in similar working conditions, an employer must pay his employees equally. An employer, however, may be able to demonstrate that these payment decisions are based on a reasonable factor other than sex, such as merit, a seniority system, or a quantity system. If an employee can establish a violation of the Equal Pay Act, an employer must correct the differential by increasing the wages of the lower paid sex, not by decreasing the wages of the higher paid sex.

Stereotyping

It is also illegal to make employment decisions based on stereotypes regarding gender.

For example, in on case an employer was held to have violated the Federal Title VII anti-discrimination law when it delayed a female employee's promotion based in part 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".

Gender Roles

Frequently employers expect women to have certain duties, such as caring for children. In one case, an employer did not hire women with preschool-age children, while at the same time it did hire men with preschool-age children. Even though most of the people it hired were women, there was still discrimination. The employer didn't think women with young children should be working outside the home. The employer is entitled to this belief. But he couldn't let it affect his employment decisions. When his beliefs did influence his hiring decisions, he broke the law.

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