Gender Discrimination Despite the Best

Gender Discrimination

Despite the best efforts of courts and lawmakers, a tremendous amount of discrimination continues to exist in employment situations. Gender discrimination involves any type of sex-based discrimination and may be the area that has been most difficult to combat by legal measures. This difficulty has at least two roots. First, like in all areas of discrimination, people have had to learn that gender stereotypes are harmful. Second, people have had to learn that gender stereotypes are incorrect, which is more difficult, because much of society continues to be invested in the gender status-quo, in a way that differs from other types of oppression. The elevation of the traditionally feminine role plays a major part in gender discrimination, with prospective employers historically taking a protectionist stance against women in non-traditional jobs and sometimes against women working outside of the home at all. In addition, unlike racial discrimination, the sheer biological differences between men and women mean that some professions will remain highly gender-biased, despite intervening legislation and changing social mores. A further complicating factor in gender discrimination is that it can take many faces. Gender discrimination can involve employers instituting policies that are aimed at limiting the participation of one gender in a particular job. However, gender discrimination can also involve sexual harassment, which can make sexual identity a liability in the workplace.

In order to understand gender discrimination, one must look at the legal hurdles that a litigant faces when seeking to establish a prima facie case of gender discrimination. First, a litigant must demonstrate that he or she is a member of the protected class. Because both men and women are protected from gender discrimination, this hurdle is easy for most litigants, but has prevented some who base discrimination claims on sexual orientation from being able to establish a prima facie discrimination case. Second, a litigant has to demonstrate that he or she experienced an adverse employment action. Third, the litigant has to demonstrate that the aversive action was related to his or her protected status. Litigants do not have to show facially discriminatory laws or policies, but can demonstrate how facially neutral policies have impacted them in a discriminatory manner to satisfy this burden.

The most overt form of sexual discrimination is disparate treatment discrimination. Under Equal Employment Opportunity guidelines, "disparate treatment occurs where members of a race, sex, or ethnic group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants." Basically, this means that gender generally cannot be used as selection criteria for jobs or promotions.

An example of how gender discrimination ties into cultural stereotypes and protectionist instincts is when pregnancy, a strictly female condition, is used as a basis of job discrimination. In International Union, UAW v. Johnson Controls, Inc., the union challenged the employer's policy of barring women from certain jobs because of potential damage to fetuses. While other courts had determined that fetal protection policies were not discriminatory, the Supreme Court disagreed and found that the policy was facially discriminatory because it required "only a female employee to produce proof that she is not capable of reproducing." Furthermore, the Court reiterated that danger to a woman, herself, was not sufficient to justify discriminatory treatment. Therefore, the Court determined that Title VII forbids sex-specific fetal-protection policies.

However, even facially neutral job qualifications can be used in a bias manner, which is the essence of disparate impact discrimination. "Even where an employer is not motivated by discriminatory intent, Title VII prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class." Disparate impact can be difficult to prove and involves demonstrating how a particular policy has negatively impacted a broader class of people than just the litigant in order to establish a prima facie discrimination case.

While more and more women are joining the armed forces, that has not always been the case. However, it continues to be the case that many companies have hiring policies that favor veterans over equally qualified applicants. One side-effect of these policies is that more men than women benefit from them. At first blush, such a policy would appear to be an example of disparate impact discrimination. However, for such a law to be discriminatory, it would have had to have been motivated, at least in part, by a discriminatory purpose. Even though the law benefited more men than women, it was to be applied to veterans regardless of gender. Even more importantly, the law was created in spite of, rather than because of, its discriminatory impact. Therefore, the Court determined that the law did not constitute discrimination.

While gender discrimination is prevalent, it is important to note that not all gender-based hiring falls under the category of gender-based discrimination. When gender is a bona-fide occupational qualification (BFOQ), employers are permitted to use gender to discriminate among prospective employees. For example, someone seeking to hire a wet nurse would not be penalized for refusing to hire a male applicant. In addition, if the essence of a business is sex-related, then gender can be used as a BFOQ. Therefore, strippers and porn stars can be chosen along strictly gendered lines. "Ironically, perhaps, it would seem that the more explicitly the employer's business exploits sex for money- which many say is more harmful to women than formal inequality...the more easily it will satisfy the standard and permit the employer to discriminate on the basis of sex." In addition, a business does not have to be primarily sexual in nature to assert that gender is a BFOQ. Although it was required to pay a small fine, the Hooters restaurant chain managed to assert a BFOQ argument for its decision to hire all female waitresses, despite the fact that litigants demonstrated its primary business was food service. However, businesses cannot simply assert that one of its side goals is to provide sexually-related entertainment in order to defeat a facially discriminatory policy. For example, Southwest Airlines previously hired only women flight attendants. However, the court determined that "the ability of the airline to perform its primary business function, the transportation of passengers, would not be jeopardized by hiring males," and declared that Southwest's women-only employment policy was discriminatory.

To file a discrimination case, a party needs to file a complaint with the Equal Employment Opportunity Commission (EEOC) or with a state's discrimination regulatory agency, which will ensure that a complaint is dually filed with the EEOC. These charges may be filed by mail or in person at an EEOC office. There is no formal structure required for an EEOC complaint, however all complaints must contain the complaining party's name, address, and telephone number, the employer's identifying information, the dates of the alleged violation, and the description of the alleged violation. More important than the content of the complaint is when the complaint is filed:

charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights. This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days. These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.

Many cases of gender discrimination can be resolved by filing a claim with the EEOC, and, in fact, filing with the EEOC is a necessary first step in most discrimination lawsuits. Claimants are entitled to a variety of different types of relief. The most obvious form of relief is monetary compensation for discriminatory practices. For example, a person who received less pay because of his or her gender could sue to recover the difference in pay. However, many litigants seek something other than monetary damages: declaratory relief. Courts have the power to require employers to abandon discriminatory practices, which benefit all applicants, not just a single litigant.

As one can see, gender discrimination is a complex topic. Gender discrimination can be overt, but it can also be the result of facially neutral laws. A further complication is the fact that some jobs cannot be performed by members of both genders. Therefore, the case law and Federal legislation to date appears to be a reasonable attempt to correct the problem of gender discrimination. The only major problem with the laws appears to be the fact that people have to report discrimination to the EEOC less than a year after it occurs, and real-life considerations, such as fear of termination and financial dependence upon a violating employer, can make it difficult, if not impossible for an employee to report violations in that time frame.