Chapter 8 Gender Discrimination Copyright 2019 McGraw-Hill Education.

Chapter 8 Gender Discrimination Copyright 2019 McGraw-Hill Education.

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. Learning Objectives 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 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 Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-2 Does it Really Exist? EEOC stated: Sex discrimination against males and females alike continues to be a problem in the 21st century workplace Gender discrimination covers both males and females

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 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 E.g., being black and female Equal pay, promotions, harassment, pregnancy leave, lactation policies, caregiver responsibilities, and domestic violence

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 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 Per Title VII, it is the persons ABILITY that must be the basis for workplace decisions, not his or her gender Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-3 Gender Stereotypes 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 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 womans pay is only extra family income 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 Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-4 Gender Discrimination in General Unless its BFOQ, Gender may NOT be the basis of any decision relating to employment, including: Advertising for available positions and specifying a preferred gender Application questions that are only asked of one gender (i.e. asking for maiden names, and not another name) Interview questions that are only asked of one gender (i.e. asking females if they have proper day care but not males) Different hours or job positions (i.e. not allowing females to work at night)

Discipline (i.e. giving warnings to females for talking back to boss, but not doing same for men) Training (i.e. requiring only females to attend sensitivity training but not men) Seniority systems (LIFO effect) (i.e. using seniority systems to favor a certain gender) Different wages and benefits (violation of Equal Pay Act) Different terms or conditions of employment Case: Wedow v. City of Kansas City Termination (i.e. terminating females for fighting on job but not doing the same for men)

Familiar Disparate Treatment and Disparate Impact claims available Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-5 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? (disparate impact) Do these requirements directly correlate to ability to do the job? (necessity) Are there better, less discriminatory requirements? Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-6 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 Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-7 Case: Phillips v. Martin Marietta I cannot agree with the Court's indication that a 'bona fide occupational qualification reasonably necessary Corp. 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. Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-8 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 Ideas of how a particular gender should act or dress What roles they should perform Case: Price Waterhouse v. Hopkins Would she have qualified if she had met the stereotype? Even supporters considered her a "lady partner" candidate Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-9 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 Exception: where it differentially impacts perception of the employee in the workplace (suits v. smocks) Gender-based grooming policy that subjects only one gender to different conditions of employment would not be allowed Seek reasonable standards of what is generally thought to be male- or female-appropriate attire in a business setting, monitor for impact Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-10

Customer or Employee Preferences Customer preference is not a legitimate and protected reason to treat otherwise-qualified employees differently based on gender In other words, just because a customer MAY prefer a certain gender, it does not give the ER a BFOQ excuse (unless it pertains to necessary business practice) 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) Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-11 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 Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-12 Equal Pay and Comparable Worth Despite the Equal Pay Act, women earn on average 78.3 cents for every dollar earned by men. Womens salaries may be equal by the year 2050 The EPAct overlaps with Title VIIs general prohibition against discrimination in employment on the basis of gender.

EPAct concerns the practical content of the job, not title or description Title VIIs Bennett Amendment Exceptions permitted by EPAct (re seniority, output pay) recognized under Title VII Comparable worth: A Title VII action for pay discrimination based on gender Jobs held mostly by women are compared with comparable jobs held mostly by men Pay compared, to determine if there is gender discrimination Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-13 Gender as a BFOQ Title VII permits gender to be used as a bona fide occupational qualification under certain limited circumstances (privacy has been an interesting issue) EEOC guidelines for gender as a BFOQ are very strict Would be necessary for a sperm donor or a wet nurse Provide insight into how irrelevant the EEOC considers the matter of

gender in the workplace to be BFOQ as a defense has generally been found inapplicable Case: EEOC v. Audrey Sedita, d/b/a Womens Workout World Allowed BFOQs on the basis of privacy issues Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-14 Pregnancy Discrimination The Pregnancy Discrimination Act (PDA) Prohibits discrimination based on pregnancy, childbirth, or related medical conditions Followed Supreme Courts 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 Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-15

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 Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-16 Management Tips 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 Conduct periodic training to remind employees about the anti-bias policy Conduct periodic audits and review workplace policies to make sure there is no adverse impact on any one gender Actions taken to address gender issues need not make the workplace stilted or formal Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-17

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