Gender Discrimination

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Chapter 8 Gender Discrimination

Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

 

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Learning Objectives (1)

Recite Title VII and other laws relating to gender discrimination

Understand the background of gender discrimination and how we know it still exists

List the different ways in which gender discrimination is manifested in the workplace

Analyze a situation and determine if there are gender issues that may result in employer liability

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Learning Objectives (2)

Define fetal protection policies, gender-plus discrimination, workplace lactation issues, and gender-based logistical concerns

Differentiate between legal and illegal grooming policies

List common gender realities at odds with common bases for illegal workplace determinations

Distinguish between equal pay and comparable worth and discuss proposed legislation

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Does it Really Exist? (1)

EEOC stated: “Sex discrimination against males and females alike continues to be a problem in the 21st century workplace”

Majority of EEOC gender claims are filed by women

Merrill Lynch – First time a Wall Street firm was found to have engaged in systematic gender discrimination

Intersectionality: Experiencing more than one type of discrimination at a time

E.g., being black and female

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Does it Really Exist? (2)

In 2007, the EEOC issued “family responsibility discrimination” (FRD)

Women are more likely to suffer adverse employment actions taken against them because of their caregiving responsibilities

Focus of EEOC claims has shifted from hiring discrimination to on-the-job issues

Equal pay, promotions, harassment, pregnancy leave, lactation policies, caregiver responsibilities, and domestic violence

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Does it Really Exist? (3)

Statistical evidence of gender disparity

Women make up 46.8 percent of the workforce, but 57 percent of women participate in the labor force

Women have been earning more degrees than men

U.S. Census Bureau found that the gender-based wage gap is present in every profession

A 2011 White House Commission on Women and Girls report indicated that women earn 75 percent as much as men at all levels of educational attainment

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Does it Really Exist? (4)

In Fortune 1000 industrial and Fortune 500 service firms, 97 percent of top managers are white males

Prior to the 1964 Civil Rights Act, it was common for states to have laws that limited or prohibited women from working at certain jobs

Claimed that such laws were for the protection of women

Gender was not originally a part of the Civil Rights Act

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Gender Stereotypes (1)

Stereotypes impact how employees of a given gender are viewed in the workplace

Examples of gender stereotypes:

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

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Gender Stereotypes (2)

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

When women are criticized at work, they will become angry or cry

A married woman’s pay is only extra family income

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Gender Stereotypes (3)

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 cannot have jobs that require travel or a good deal of time away from home

 

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Gender Discrimination in General (1)

Advertising

Application questions

Interview questions

Requiring one gender to work different hours or job positions

Disciplining

Not considering legitimate differences between genders

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Gender Discrimination in General (2)

Training

Seniority systems

Different wages and benefits

Different terms or conditions of employment

Case: Wedow v. City of Kansas City, Missouri

Terminating one gender for different reasons

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Recognizing Gender Discrimination

Does a facially neutral policy exclude members of a particular gender from the workplace or some workplace benefit?

Case: Dothard v. Rawlinson

Do height and weight requirements statistically exclude certain groups?

Do these requirements directly correlate to ability to do the job?

Are there better, less discriminatory requirements?

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“Gender-Plus” Discrimination

“Gender-plus” discrimination: Employment discrimination based on gender and some other factor such as marital status or children

Males are not subject to the same limitations

Case: Phillips v. Martin Marietta Corp.

Employer had a policy of not hiring women with preschool-aged children

Court has not permitted BFOQs to be used in such ways to discriminate based on gender since this case

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Case: Phillips v. Martin Marietta Corp.

“I cannot agree with the Court’s indication that a ‘bona fide occupational qualification reasonably necessary to the normal operation of’ Martin Marietta’s business could be established by a showing that some women, even the vast majority, with pre-school-age children have family responsibilities that interfere with job performance and that men do not usually have such responsibilities.

 

Certainly, an employer can require that all of his employees, both men and women, meet minimum performance standards, and he can try to ensure compliance by requiring parents, both mothers and fathers, to provide for the care of their children so that job performance is not interfered with.

 

But the Court suggests that it would not require such uniform standards. I fear that, in this case, where the issue is not squarely before us, the Court has fallen into the trap of assuming that the Act permits ancient canards about the proper role of women to be a basis for discrimination. Congress, however, sought just the opposite result.”

 

— If you ever needed a demonstration of why diversity is important, here it is. Marshall was the only minority Justice.

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Gender Stereotyping

Gender stereotypes: The assumption that most or all members of a particular gender must act a certain way

Workplace decisions based on stereotypes are prohibited by Title VII

Case: Price Waterhouse v. Hopkins

Would she have qualified if she had met the stereotype?

Even supporters considered her a “lady partner” candidate

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Grooming Codes

Title VII does not prohibit an employer from using gender as a basis for reasonable grooming codes

Employer discretion: grooming codes rarely affect opportunity

Gender-based grooming policy that subjects only one gender to different conditions of employment would not be allowed

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Page 358-361

Customer or Employee Preferences

Customer preference is not a legitimate and protected reason to treat otherwise-qualified employees differently based on gender

The Hooters situation (Scenario 2)

1991 amendment to Title VII

Applicable to U.S. citizens employed by American-owned or -controlled companies doing business outside the United States (legal exception)

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Logistical Considerations

Issue concerning breast-feeding or expressing milk at work

Employers may not forgo hiring those of a certain gender because of logistical issues unless it involves an unreasonable financial burden

Examples:

Female sports reporters going into male athletes’ locker rooms

Female firefighters sleeping at a fire station

Lack of bathrooms at a construction site, case: Lynch v. Freeman

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Equal Pay and Comparable Worth (1)

Despite the Equal Pay Act (EPA), women earn on average 78.3 cents for every dollar earned by men

Women’s salaries may be equal by the year 2050

The Equal Pay Act overlaps with Title VII’s general prohibition against discrimination in employment on the basis of gender

EPA concerns the practical content of the job, not title or description

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Equal Pay and Comparable Worth (2)

Title VII’s Bennett Amendment

Exceptions permitted by the EPA (jobs compared in a Title VII unequal pay action need not be substantially equal)

Comparable worth: Title VII action for pay discrimination based on gender

Jobs held mostly by women are compared with comparable jobs held mostly by men

Pay is compared to determine if there is gender discrimination

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Gender as a BFOQ (1)

Title VII permits gender to be used as a bona fide occupational qualification under certain limited circumstances

EEOC guidelines for gender as a BFOQ are very strict

Provide insight into how irrelevant the EEOC considers the matter of gender in the workplace to be

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Gender as a BFOQ (2)

BFOQ as a defense has generally been found inapplicable

Case: EEOC v. Audrey Sedita, d/b/a Women’s Workout World

Allowed BFOQs on the basis of privacy issues

 

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Pregnancy Discrimination

The Pregnancy Discrimination Act (PDA)

Prohibits discrimination based on pregnancy, childbirth, or related medical conditions

Followed Supreme Court’s conclusion that discrimination on the basis of pregnancy was not gender discrimination under Title VII

Two years later Congress passed the PDA, amending Title VII to expressly include pregnancy

EEOC report

182 percent increase in the filing of pregnancy discrimination charges over the past 10 years

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Fetal Protection Policies

Fetal protection policies: Policies an employer institutes to protect the fetus or the reproductive capacity of employees

Limit or prohibit employees from performing certain jobs or working in certain areas

Many times these policies only consider females

E.g., UAW v. Johnson Controls

 

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Management Tips (1)

Send the message that gender bias will not be tolerated

Back up message with appropriate enforcement

Take employee claims seriously

Promptly and thoroughly investigate all complaints

Make sure the “punishment fits the crime”

 

Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

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