Gender Discrimination

By Bennett-Alexander, D.D., Hartman, L.P.

Edited by Paul Ducham

GENDER INEQUALITY IN THE WORKPLACE

What does a group of 25 attorney-mediators have to do with a swimsuit calendar? Good question. The Miami-based Florida Mediation Group has probably been asking itself that same question ever since it received a good deal of flack for having its name emblazoned across one of several themed calendars given away as gifts to clients.

It can be hard to recognize gender discrimination when it plays itself out in the workplace. A woman is required by her employer to wear two-inch heels to work. Doing so causes her to develop bunions on her feet, which can only be removed by surgery. After surgery she is ordered by her doctor to wear flat shoes for two months. Her employer refuses to permit her to do so. Left with no alternative, she quits. The employer imposes no such requirement or its attendant problems on male employees. When you realize that the employer’s two-inch-heels policy cost the woman her job and had she been male, this would not have happened, it becomes more obvious that the policy is discriminatory. Remember the wires of the bird cage. Those wires are probably what the members of the executive board of the Miami-Dade chapter of the Florida Association of Women Lawyers were thinking of when they registered their objection to the calendar. “We believe this type of advertising, whether picturing men or women, does not promote dignity in the law and is inappropriate when circulated by an organization that serves the legal community.”

It is not difficult to discriminate on the basis of gender if an employer is not sensitive to the issues involved. (See Exhibit 7.1 , “Gender-Neutral Language?”) Once again, as with race discrimination, vigilance pays off. This article will address gender discrimination in general, including pregnancy discrimination, fetal protection policies, and equal pay. Gender discrimination covers both males and females, but because of the unique nature of the history of gender in this country, it is females who feel the effects of gender discrimination in the workplace more so than men, and the vast majority of EEOC gender claims are filed by women.

Women are the single largest group of beneficiaries under affirmative action. They seem to be gaining in all facets of life. As we write this, Condoleezza Rice is secretary of state. Hillary Rodham Clinton made an unprecedented run for president of the United States as the first female candidate with a serious chance of winning. Nancy Pelosi is the first female speaker of the U.S. House of Representatives. Drew Gilpin Faust has taken over as the first female president in Harvard University’s 371-year history. Things seem OK. You think to yourself, who would be dumb enough to discriminate against women these days? It can be hard to believe that gender discrimination still exists when you go to school and work with so many people of both genders; you don’t feel like you view gender as an issue, and it just seems like everything is OK. However, EEOC reports that gender suits account for the second highest percentage of claims brought under Title VII.

Just recently, one of our female masters’ students was told by an employer that if she were a man with her qualifications, he would pay her 50 percent more. Another was told she would be able to have a full-time job upon graduation in a company in which she had experienced a very successful internship, but only if she allowed the very prominent president of the company to set her up in an apartment so she could be available to him whenever he wished to have sex with her. He was not bothered by the fact that she was married with a child. We are glad to report that she did not take him up on his offer. She was, however, put in the unenviable position of starting her job hunt all over again and not finding another job in her field until five months after she graduated.

Even professionals can be caught off guard. In 1999 the media reported that a gender-discrimination charge that started with eight female stockbrokers at Merrill Lynch alleging various forms of gender inequality, particularly economic discrimination, had ballooned to 900 women and was still growing. “It’s been a flood. I’ve been stunned. We were expecting 200–300 claims, but the calls are still coming in,” said one of the lawyers representing the women.

In 2004, arbitrators determined that it was standard operating procedure at Merrill Lynch to discriminate against women. It was the first time a Wall Street firm had been found to have engaged in systematic gender discrimination. Merrill Lynch has spent more than $100 million settling close to 95 percent of the 900 or so claims. In subsequent press releases, the firm said this is not an accurate picture of the firm today. Unfortunately, that was only the beginning of Wall Street’s gender-based litigation. Cases continue to be brought by female employees against several Wall Street firms for the same types of discrimination that cost Merrill Lynch so much. Morgan Stanley settled a gender-bias class action suit for $46 million in 2007; Putnam Investments was sued for its “ingrained culture of chauvinism,” leading to demotions and firings based on gender; Smith Barney was sued for a pattern and practice of gender discrimination against its female financial consultants; and Wall Street bank Dresdner Kleinwort Wasserstein Securities, LLC, was sued for $1.4 billion by female employees who alleged they were hired as “eye candy,” subjected to Animal House–like antics, passed over for promotions, and generally treated like second-class citizens.

Clearly, Merrill Lynch’s $100 million message was not heard by all. But Wall Street is hardly alone. Recent cases have been filed for everything from a female animal handler terminated for refusing to expose her breasts to a 300-pound gorilla who had a “nipple fetish”; to a female attorney suing her firm because she alleged she was not being paid the same as similarly situated men and there was a separate, lower track for female lawyers with children or who took maternity leave; to the Clearwater, Florida, Fire & Rescue chief being charged by EEOC with gender discrimination for ordering the department’s six female firefighters to stay away from structure fires amid reported threats that their male colleagues might not protect them; to a man suing in California because there is no convenient, easy, comparable way for him to take his wife’s name when they marry as it is for her to take his. Add race to the gender mix and it gets even worse. An American Bar Association study on women of color in law firms, commissioned after a National Association for Law Placement study found that 100 percent of female minority lawyers left their jobs in law firms within eight years of being hired, found that 44 percent of the women reported being passed over for desirable assignments (compared to 2 percent for white men), 62 percent said they had been excluded from formal and informal networking opportunities (compared to 4 percent of white men), and 49 percent reported being subjected to demeaning comments or other types of harassment at their firms.

Gender equality in the workplace is an ever-evolving area and does not occur in a vacuum. The issues in the workplace are only one part of a much larger environment of different, often unequal, treatment of individuals based on gender. Imagine the swimsuit calendar having bikini-clad males instead of females. Do you think it would have been received the same way? Manifestations of gender differences in society are the basis for differences in treatment in the workplace. They can be as diverse as the group of Massachusetts teens suing the Selective Service System arguing it is an unconstitutional violation of the Fifth and Fourteenth Amendments’ Equal Protection Clause for females not to be subject to the draft just as men are, asserting that “If people want women’s rights, they should want it wholeheartedly, including for women to have to fight in wars,” to the protest over General Nutrition Center (GNC) dropping women from its GNC Show of Strength bodybuilding competition and replacing it with the International Federation of Body Builders (IFBB) Pro Figure competition; from males suing bars for offering “Ladies’ Night” discounts to women because such promotions discriminate against men, to male fans at a major league baseball park suing the park for its Mothers’ Day promotion give-away of red net bags only to females 18 and over. Of course, it goes without saying that gender differences also find their way into the workplace through lower pay for women; women being consigned to lower-paid jobs (pink-collar jobs); women being hassled, not promoted, or not given the same assignments and training as men in jobs traditionally held by men; or in men not being hired for traditionally female jobs such as Hooters’ servers.

New types of gender claims are constantly evolving. In the past few years, at least 24 states have passed “contraceptive equity” laws requiring that any health plan that provides coverage for prescription drugs also must provide coverage for FDA-approved contraceptive drugs. When it was perceived that employers’ health plans routinely covered the cost of Viagra for male employees but not the cost of birth control for females, which EEOC determined violated Title VII, at least 27 states passed “contraceptive equity” laws requiring that any health plan which provides coverage for prescription drugs also must provide coverage for FDA-approved contraceptive drugs. As a result of state mandates, the number of employers allowing coverage for both tripled from 1993–2002. A 2004 Guttmacher Institute report found that by 2002, 86% of employers covered both. The need for lactation facilities for nursing mothers has become a growing area of workplace concern. Increasing male employee interest in balancing work and family also has found its way into the workplace. The first gender-based Family and Medical Leave Act (fmla) claim involved a new father who won $40,000 after being denied appropriate FMLA leave to take care of his premature baby and seriously ill wife. Within the past few years, in addition to the female coaches who have sued for gender discrimination, several male coaches have alleged gender discrimination. For instance, the coach at the University of Pennsylvania won his claim of being passed over for crew coach in favor of a female. In 2007, EEOC issued guidelines on “caregiver responsibility” discrimination, also known as “caregiver bias” or “family responsibility discrimination” (FRD). The EEOC issued the guidance because it realized the growing issue of the disparate impact that the conflict between work and family had on both male and female employees (though it noted that since most caregiving responsibilities fall on women, such discrimination has a disparate impact on them). That is, because of their caregiving responsibilities, women are more likely to suffer adverse employment actions taken against them such as diminishing workplace responsibilities, failure to promote or train, exclusion from decision-making channels, or other actions coming from the idea that if employees have caregiving responsibilities, then they are less likely to be dependable, competent employees who can live up to their full workplace potential. As women have increasingly entered the workforce over the past 40 years since passage of Title VII, the focus of claims of gender discrimination have more recently shifted away from hiring discrimination toward on-the-job issues such as equal pay, promotions, harassment, and pregnancy leave. Eric S. Dreiband, EEOC general counsel, recently said this reflects “new issues erupting in a diverse workforce. As blatant discrimination decreased, other areas like harassment increase.”

Viewed in this context, it then comes as no surprise that in the past few years, in addition to the substantial sums paid out by Wall Street for gender discrimination, Wachovia Bank reached a settlement with the Office of Federal Contract Compliance Programs (OFCCP) to pay $5.5 million for compensation discrimination against women. Home Depot agreed to pay $5.5 million to resolve a class action suit alleging, among other things, gender discrimination in its Colorado stores. The Palm Steak House agreed to a $500,000 settlement for failing to hire women to wait tables at its 29 restaurants because males, who could make up to $80,000 per year, including tips, were viewed as more prestigious.

Washington is the only state in the country that can boast that it has a female governor, both of its U.S. senators are female, four of its nine state supreme court justices are female, and roughly a third of its state legislators are female, yet Seattle-based aeronautical giant Boeing agreed to pay $72.5 million for gender-based compensation discrimination against its female employees. A University of California lab agreed to pay $9.7 million to 3,200 women to whom it had paid less wages and whom it had promoted less often than male employees. Costco Wholesale Corp., with a workforce of 78,000, was sued by about 650 women in a class action suit who allege the company did not announce openings for higher-paying managerial jobs, relying instead on a “tap the shoulder” policy of choosing managers. That is, top-level male managers would pick other males for high-level positions. Fewer than one in six of Costco’s managers were women, while nearly 50 percent of its workforce is female.

Then, of course, there is Wal-Mart, whose size alone puts it nearly in a class by itself. With sales of $284 billion for fiscal year 2004, it is the world’s largest retailer. More than 70 percent of its hourly sales employees are women. In Dukes v. Wal-Mart Stores, Inc., potentially about 1.6 million present and former female employees (roughly the population of San Francisco) were certified for a class action suit against Wal-Mart for gender bias. The employees allege that Wal-Mart systematically mistreats women in a variety of ways, including paying them less even though they may have more experience or outrank men, prohibiting women from advancing by denying them training, prohibiting them from working in departments traditionally staffed by men (positions that usually pay more), and not posting all management position openings. Damages could run into the billions if Wal-Mart, which denies any wrongdoing, is found liable for gender discrimination. A study done at the request of the employees’ attorney found that of Wal-Mart’s top 20 competitors, 56 percent of the managers are women, compared with about one-third of that for Wal-Mart. Only about 14 percent of the top managers at its 3,000 stores are female. In response to the media surrounding the lawsuit, Wal-Mart took out more than 100 full-page newspaper ads across the country, outlining its wages and benefits and the good the company brings to its communities.

Let’s take a look at some of the statistics that might underlie these cases to see if they support the overall picture. Nearly half the workforce is female. At the same time women are nearing the halfway mark in the workforce, they represent two-thirds of all poor adults. Nearly 80 percent of female employees work in traditional “female” jobs—as secretaries, administrative support workers, and salesclerks. Statistics show that 16 percent of the females in the workforce are employed as professionals but 10 percent of them are actually nurses or K-12 teachers—traditionally “pink-collar” female strongholds. For instance, 90 percent of nurses are women, as are 80 percent of teachers. Paradoxically, a 2004 EEOC report 5 found that women have the lowest odds of being managers in nursing care facilities. Even though Title VII has been in effect for over 40 years, only 15 percent of women work in jobs typically held by men (engineers, stockbrokers, judges), while fewer than 8 percent of men hold female-dominated jobs such as nurses, teachers, or sales clerks. According to the EEOC report, women now represent about 36 percent of all officials and managers in private-sector employment, a 7 percent increase over the 12-year period examined. On the other hand, women are well over 50 percent of the 13 million U.S. undergraduates and earn more doctorates than men, yet it is generally recognized that campuses are still predominantly male when it comes to professors, department heads, and other high-level administrators. In a historic move in 2004, Susan Hockfield was tapped to be the new president of the prestigious Massachusetts Institute of Technology. Shortly thereafter, in January 2005, the president of Harvard University, Lawrence Summers, created quite a stir when he suggested at an academic conference that women represent such a small percentage of math and science faculties because they lack innate ability in math and science. He subsequently apologized, saying, in part, “The human potential to excel in science is not somehow the province of one gender or another.” In February 2007, he was replaced by Drew Gilpin Faust, the first female president in Harvard’s 371-year history.

A 2004 study by Stephen J. Rose, an economist at the consulting firm of Macro International, Inc., and Heidi I. Hartmann, president of the Institute for Women’s Policy Research, found that while the Bureau of Labor Statistics (BLS) reports that women earn about 77 percent of men’s pay, over the course of their careers, it is actually more like 44 percent . The researchers say the BLS statistics consider only full-time, year-round employees—a category only about 25 percent of women fit into over the course of their work life—and do not account for the roughly 75 percent of those who work only part time at some point and dip in and out of the labor force to care for children or elderly parents. When the more accurate reality is used for calculation, the figure becomes 44 percent.

A 2007 report by the U.S. Census Bureau found that the median income for a male working full time, year-round was $41,965, while for females the median was $32,168, or 29 percent less. The gender-based wage gap is present in every profession. For instance, female doctors on average earn 58 percent less than male doctors.

The 1991 Civil Rights Act called for the establishment of a Glass Ceiling Commission to investigate the barriers to female and minority advancement in the workplace and suggest ways to combat the situation. In 1995, the U.S. Department of Labor released a study by the bipartisan commission. Findings were based on information obtained from independent studies, existing research, public hearings, and focus groups. The commission reported that while women have gained entry into the workforce in substantial numbers, once there they face all but invisible barriers to promotion into top ranks. “Glass ceilings” prevent them from moving up higher in the workplace. “Glass walls” prevent them from moving laterally into areas that lead to higher advancement. Research indicates that many professional women hold jobs in such areas as public relations, human Resources management, and law—areas that are not prone to provide the experience management seeks when it determines promotions to higher-level positions. This was further supported by the study by Professor Blumrosen.

Segregation by both race and gender among executives and management ranks is widespread. A survey of top managers in Fortune 1000 industrial and Fortune 500 service firms found that 97 percent are white males. As part of their findings, a survey by Korn/Ferry International found 3 to 5 percent of top managers are women. Of those, 95 percent are white, non-Hispanic. Further, women and minorities are trapped in low-wage, low-prestige, and dead-end jobs, the commission said. It is therefore not difficult to see why, in a New York Times poll of women about “the most important problem facing women today,” job discrimination won overwhelmingly.

Our country, like many others, has a history in which women’s contributions to the workplace have historically been precluded, denied, or undervalued. 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 under the theory that such laws were for the protection of women. Unfortunately, those jobs also tended to have higher wages. The effect was to prevent women from entering into, progressing within, or receiving higher wages in the workplace. In Muller v. Oregon, which upheld protective legislation for women and justified them being in a class of their own for employment purposes, the U.S. Supreme Court stated that a woman must “rest upon and look to her brother for protection . . . to protect her from the greed as well as the passions of man.” This is precisely the view our laws took until the Civil Rights Act of 1964.

After women came into the workplace in unprecedented numbers out of necessity during World War II and performed traditional male jobs admirably, it became more difficult to maintain the validity of such arguments. This type of protective legislation was specifically outlawed by Title VII, and the glass ceiling and walls notwithstanding, women have made tremendous strides in the workplace over the past 40-plus years since the Civil Rights Act was passed. In evaluating those strides, keep in mind that women were virtually starting from scratch since there was little or nothing to prevent workplace discrimination before Title VII, so gaining entry into the workplace and the statistics reflected by that should, of course, be high.

Despite the fact that many of the strides made by women were made with the help of male judges, employers, legislators, and others, much of the cause of the figures is attitudinal. (See Exhibit 7.2 , “Sexist Thinking.”) Workplace policies generally reflect attitudes of management. In a national poll of chief executives at Fortune 1000 companies, more than 80 percent acknowledged that discrimination impedes female employees’ progress, yet less than 1 percent regarded remedying gender discrimination as a goal that their personnel departments should pursue. In fact, when the companies’ human resources officers were asked to rate their departments’ priorities, women’s advancement ranked last.

Interestingly enough, while the biggest gains under protective employment legislation in the last 40-plus years have been made by women, the truth is, gender was not even originally a part of the Civil Rights Act. Gender was inserted into the civil rights bill at the last moment by Judge Howard Smith, a southern legislator and civil rights foe desperate to maintain segregation in the south, who was confident that, if gender was included in the bill legislating racial equality, the bill would surely be defeated. He was wrong. However, because of the ploy, there was little legislative debate on the gender category, so there is little to guide the courts in interpreting what Congress intended by prohibiting gender discrimination. To date, courts have determined that gender discrimination also includes discrimination due to pregnancy and sexual harassment, but not because of affinity orientation or being transgender.

The goal of a manager, supervisor, human resources employee, or business owner is to have workplace policies that maximize the potential for every employee to contribute to the productivity and growth of the workplace, while minimizing or eliminating irrelevant, inefficient, and nonproductive policies that prevent them from doing so. The underlying consideration to keep in mind when developing, enforcing, or analyzing policies is that, no matter what we may have been taught about gender by family or cultural and societal mores, gender, alone, is considered by the law as irrelevant to one’s ability to perform a job. By law, it is the person’s ability to perform, not his or her gender, that must be the basis of workplace decisions. (See Exhibits 7.3 , “Career Stereotyping,” and 7.4, “Gender Myths.”) As we shall see, there may be very limited exceptions to this rule if a bona fide occupational qualification (bfoq) exists. It is not only the law, but it is in the best interest of any employer who is serious about maximizing production, efficiency, and profits, as well as minimizing legal liability for workplace discrimination, to recognize that gender discrimination, whether subtle or overt, is just plain bad business. After all, workplace turnover, morale, and defending against lawsuits cost the employer money, time, and energy better spent elsewhere. (See Exhibit 7.5 , “Discrimination: Bad for Business and Employees.”)

The aim of this article is to provide information about obvious gender discrimination and what factors must be considered in making determinations about the policies in “gray areas.” This article provides the tools to use when developing, applying, or analyzing policies that may result in gender discrimination claims.

Exhibit 7.1  Gender-Neutral Language?

Attorney Harry McCall, arguing before the U.S. Supreme Court, stated, “I would like to remind you gentlemen” of a legal point. Associate Supreme Court Justice Sandra Day O’Connor asked, “Would you like to remind me, too?” McCall later referred to the Court as “Justice O’Connor and gentlemen.” Associate Justice Byron White told McCall, “Just ‘Justices’ would be fine.”

Source: Newsweek, November 25, 1991, p. 17.

Exhibit 7.2  Sexist Thinking

An Esquire magazine poll asked men: “If you received $1.00 for every sexist thought you had in the past year, how much richer would you be today?” The median answer was $139.50. [We have never had a male student who didn’t think the figure should be much higher.]

Exhibit 7.3 Career Stereotyping

Dear Abby: As I begin my second year of medical school, I need some advice on how to respond to those ignorant people who assume that, since I am female, I am studying to be a nurse. Men and women alike are guilty of this.

Please don’t get me wrong, I have just as much respect for nurses—they work as hard as some physicians, but women are seldom given the credit they deserve. I once heard this statement: “Oh, so you’re in medical school? My sister is a nurse, too!”

I cannot tell you how angry this makes me. Many of my female classmates also feel this way. Do you have a response that expresses our feelings without offending the speaker?—Ms. Future Doctor in L.A.

Dear Future Doctor: Anyone who is confused about the role of a student in medical school should be told that future physicians are trained in medical schools, and future nurses are trained in nursing schools.

Dear Abby: After reading the letter from “Ms. Future Doctor,” I felt the need to write and give another view on career sexual stereotypes.

I am 27, a registered nurse for four years, and I am a MALE. I am frequently asked, “When will you become a doctor?” Or, “You’re doing this just to put yourself through medical school, right?” Also, “What’s the matter, couldn’t you get into medical school?”

When I first started my schooling to become a nurse, I considered medical school, but the further I got into nursing, the more I enjoyed being a nurse. I enjoy comforting a patient in pain, teaching my patients about their diseases, and holding the hand of someone who is frightened and hurting. These feelings are experienced by every nurse, and being male did not exclude me from doing them. (Most doctors are too busy.) I still work hard being a competent and compassionate nurse.

More males are choosing nursing as a career, and we need to shed our preconceived notions about who nurses are and what they look like.— Mr. Nurse in Tampa

Source: “Dear Abby” columns by Abigail Van Buren. Dist. by Universal Press Syndicate. Reprinted with permission. All rights reserved.

Exhibit 7.4 Gender MYTHS

Due to the particular historical development of gender in our country, there are many myths about gender that affect how those of a given gender are perceived. Here are some of the myths we have actually been told by managers and supervisors. These myths impact how we view employees of a given gender in the workplace. See if any are familiar.

• 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 woman’s income 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 should not have jobs that require travel or a good deal of time away from home.

Exhibit 7.5  Discrimination: Bad for Business and Employees

JURY TELLS NBA TO PAY FEMALE REFEREE $7.85 MILLION

Read what happened when a female rose to number two on the list of those in line to officiate in the NBA, only to be repeatedly passed over:

Sandra Ortiz-Del Valle sued the National Basket-ball Association (NBA) for gender discrimination for passing her over as a referee, and handed the NBA its first discrimination case loss when the federal jury awarded Ortiz-Del Valle $7.85 million, $7 million of which was punitive damages (the award was later reduced by a judge to $350,000). Ortiz-Del Valle had dreamed of being an NBA referee for years, but kept getting passed over. Despite documents praising Ortiz-Del Valle as being “very knowledgeable about the rules” and having “excellent basketball officiating skills,” and although the evaluator said, “I would not hesitate to recommend that at sometime in the near future she be considered to enter our training program,” the NBA kept giving her varying reasons for denying her the position. The NBA denied any discrimination and said she was not hired because she failed to upgrade the Level of Competition in her officiating schedule despite being asked to, and said she was out of shape. Ortiz-Del Valle claimed she had all the qualifications to be an NBA referee, including officiating in top men’s amateur and professional basketball leagues for 17 years. She was the first woman in history to officiate a men’s professional basketball game. Ortiz-Del Valle said she finally sued after continuously doing everything the league asked of her, and not being promoted, then seeing men she trained hired by the league. “It was like they kept moving the basket,” she said.

Source: Ortiz-Del Valle v. NBA, 42 F. Supp. 2d 334 (S.D.N.Y. 1999).

GENDER DISCRIMINATION

Title VII and state fair-employment-practice laws regarding gender cover the full scope of the employment relationship. Unless it is a BFOQ, gender may not be the basis of any decision related to employment. This includes the following, taken from actual situations:

• Advertising for available positions and specifying a particular gender as being preferred (see Exhibit 7.6 , “Pre–Title VII Newspaper Want Ads for Females”).

• Asking questions on an application that are only asked of one gender. For example, for background-check purposes asking the applicant’s maiden name, rather than simply asking all applicants if there is another name they may have used.

• Asking questions in an interview that are only asked of one gender. For example, asking female interviewees if they have proper day care arrangements for their children and not asking male interviewees who also have children. Or asking female applicants about reproductive plans and not asking males. (Yes, people actually do such things. Quite frequently, as a matter of fact.)

• Requiring one gender to work different hours or job positions for reasons not related to their ability or availability for the job. For example, not permitting women to work at night or not giving a promotion to a woman because it involves travel.

• Disciplining one gender for an act for which the other gender is not disciplined. For example, chastising a female employee who is late for work because of reasons related to her children while not similarly chastising a male employee who is late because of a sick dog, or chastising a female employee for cursing but not a male.

• Providing or not providing training for one gender, while doing so for another. For example, requiring all female employees to be trained on word processing equipment, no matter what position they hold in the company, while not requiring that males undergo the same training. Or, alternatively, providing training opportunities for career advancement to male employees and not to similarly situated female employees.

• Establishing seniority systems specifically designed to give greater seniority to one gender over another. For example, instituting a new seniority system that bases seniority on how long an employee has been working for the employer, rather than how long the employee has been working in a particular department with the intent that, if the employer ever needs to lay off employees for economic reasons, more males will be able to retain their positions because females have been in the workplace a shorter time and thus have less seniority.

• Paying employees different wages based on gender, though the job one employee performs is the same or substantially the same as another. This also may violate the equal pay act, which prohibits discrimination in compensation on the basis of gender for jobs involving equal skill, effort, or responsibility.

• Providing different benefits for one gender than for another. For example, providing spouses of male employees with coverage for short-term disabilities, including pregnancy, while not providing female employees with similar coverage for short-term disabilities for their spouses, or providing prescription coverage for Viagra for men, but not birth control for women.

• Subjecting one gender to different terms or conditions of employment. For example, requiring female associates in an accounting firm to dress, talk, or act “feminine,” when no comparable requirement is imposed on males aspiring to partnership.

• Terminating the employment of an employee of one gender for reasons that would not serve as the basis for termination for an employee of the other gender. For example, terminating a female employee for fighting on the job, when males engaged in similar activity are retained.

Clearly the antidiscrimination provisions are comprehensive. The law is broad enough to cover virtually every decision or policy that could possibly be made in the workplace. The scope of antidiscrimination laws is intentionally undefined so that decisions can be made on a case-by-case basis. Some of the examples above are not illegal per se. Rather, they elicit gender or gender-related information that can form the basis of illegal gender-based employment decisions—or at least make it appear as if that is the case.

The law takes a case-by-case approach to gender discrimination, so it is imperative to know what factors will be considered in analyzing whether gender discrimination has occurred. To the extent that these factors are considered when developing or implementing policies, it is less likely that illegal considerations or criteria will be used in making workplace decisions and policies. (See Exhibits 7.7 , “Appearance-Based Discrimination,” and 7.8, “On the Lighter Side.”)

Exhibit 7.7  Appearance-Based Discrimination

We often discriminate against others without even realizing it. Since only those things prohibited by law are considered illegal, not all discrimination is actionable. However, look at the items below and note the gender differences:

• Very attractive men and women earn at least 5 percent more per hour than people with average looks.

• Plain women earn an average of 5 percent less than women with average looks.

• Plain men earn 10 percent less than average men.

• Most employers pay overweight women 20 percent less per hour than women of average weight.

• Overweight males earn 26 percent more than underweight co-workers.

• Of men with virtually identical résumés, the taller man will be hired 72 percent of the time.

• Men who are 6 feet 2 inches or taller receive starting salaries 12 percent greater than men under 6 feet.

• Married men earn, on average, 11 percent more per hour than men who have never married.

• White women 65 pounds overweight earn 7 percent less than those of median weight; there is little effect of weight on the earnings of Hispanic women, none on black women, and virtually none on the wages of men.

• Better-looking men get more job offers, higher starting salaries, and better raises; good-looking women get better raises but not usually better jobs or starting salaries.

• Plain women tend to attract the lowest-quality husbands (as measured by educational achievement or earnings potential); beautiful women do no better in marriage than average women; looks don’t seem to affect men’s marriage prospects.

Sources: Taken from The Paranoid’s Pocket Guide, by Cameron Tuttle, Chronicle Books, 1997. Reprinted with permission; Professors Jeff Biddle and Daniel Hamermesh, “Beauty and the Labor Market,” American Economic Review 83, no. 1174 (December 1994); John Cawley, Body Weight and Women’s Labor Market Outcomes 2, no. 1, Joint Center for Poverty Research, 2000.

Exhibit 7.8  On the Lighter Side*

Women are often accused of being humorless when it comes to gender issues. While the issue of gender discrimination is far from funny, it doesn’t mean we can’t laugh at ourselves. To wit, the following e-mail:

IS YOUR COMPUTER A HE OR A SHE?

A college professor who was previously a sailor was very aware that ships are addressed as “she” and “her.” He often wondered [by] what gender computers should be addressed.

To answer that question, he set up two groups of computer experts. The first was composed of women, and the second of men. Each group was asked to recommend whether computers should be referred to in the feminine gender, or the masculine gender. They were asked to give four reasons for their recommendations.

The group of women reported that the comput

ers should be referred to in the masculine gender because:

1. In order to get their attention, you have to turn them on.

2. They have a lot of data, but they are still clueless.

3. They are supposed to help you solve problems, but half the time they are the problem.

4. As soon as you commit to one, you realize that if you had waited a little longer, you could have had a better model.

The men, on the other hand, concluded that computers should be referred to in the feminine gender because:

1. No one but the Creator understands their internal logic.

2. The native language they use to communicate with other computers is incomprehensible to everyone else.

3. Even your smallest mistakes are stored in long-term memory for later retrieval.

4. As soon as you make a commitment to one, you find yourself spending half your paycheck on accessories for it.

Exhibit 7.6

GENDER INEQUALITY

When analyzing employment policies or practices for gender discrimination, first check to see if it is obviously so. See if the policy excludes members of a particular gender from the workplace or some workplace benefit. An example is a policy that recently appeared in a newspaper story on local restaurants. One owner said that he did not hire males as servers because he thought females were more pleasant and better at serving customers. As Wedow v. City of Kansas, Missouri, demonstrates, employers may engage in obvious gender discrimination and claim to be unaware of their policies’ negative legal repercussions, even though it is a workplace held in high regard such as a fire department.

Not all cases may be as easy to recognize as gender discrimination when making workplace decisions or policies. (See Exhibit 7.9 , “Illegal or Unfair?”) It is easier to realize there is gender discrimination when the policy says “no women hired as guards” than when, as with the Dothard v. Rawlinson case, there is a policy, neutral on its face, saying all applicants must meet certain height and weight requirements to be guards, yet due to their genetic differences statistically, most women do not generally meet the requirements. In the Dothard case, for the first time, the U.S. Supreme Court was faced with whether Title VII’s gender discrimination provision applied to the seemingly neutral criteria of height and weight restrictions, which had long been an accepted basis for screening applicants for certain types of jobs such as prison guards, police officers, and firefighters, even though there was little or no legitimate reason for the criteria. The Court decided that Title VII did, in fact, apply to such facially neutral policies when they screened out women (later cases extended this standard to shorter and slighter ethnicities as well) at an unacceptable rate and were not shown to be directly correlated to ability to do the job.

Exhibit 7.9 Illegal or Unfair?

Several courts have wrestled with the issue of what constitutes gender discrimination under Title VII. One issue that has arisen several times is whether it is illegal gender discrimination under Title VII if a female who is having a relationship with a supervisor receives a job or promotion over a qualified male who applies for the position. In Womack v. Runyon, 77 FEP Cases 769 (11th Cir. 1998), Paul Womack, having excellent credentials, experience, and training, applied for a carrier supervisor position in Waycross, Georgia. He was unanimously selected as the best-qualified candidate by a review board, but O. M. Lee, the newly appointed postmaster of Waycross, instead appointed Lee’s paramour, Jeanine Bennett. In rejecting Womack’s Title VII claim of gender discrimination, the court held that Title VII did not cover claims of favoritism, saying that such decisions may not be fair, but they are not illegal under Title VII. According to an EEOC policy guidance, “Title VII does not prohibit . . . preferential treatment based upon consensual romantic relationships. An isolated instance of favoritism toward a paramour . . . may be unfair, but it does not [amount to] discrimination against women or men in violation of Title VII, since both [genders] are disadvantaged for reasons other than their genders.”

DISCRIMINATION AGAINST WOMEN

There are some situations in which the employer may permit the hiring of women but not if there are other factors present—for example, no hiring of women who are pregnant, are married, are over a certain age, have children under a certain age, or are unmarried with children. This is “gender-plus” discrimination. Of course, the problem is that such policies are not neutral at all because males are not subject to the same limitations. (See Exhibit 7.10 , “Breast-Feeding: A Gender-Plus Issue?”)

The Phillips v. Martin Marietta Corp. case, included in the end, was the first Title VII case to reach the U.S. Supreme Court and is still widely cited. Martin Marietta provides insight into the considerations the Court will use in deciding gender-plus discrimination cases. Probably even more insightful is the dissent in the Martin Marietta case filed by Justice Thurgood Marshall. The Court evidently took Justice Marshall’s dissent seriously because in the years after Martin Marietta the Court has not permitted BFOQs to be used in the way he warned against. Keep in mind that, while BFOQs are permitted as a lawful means of discriminating based on gender, they are very narrowly construed. The employer is under a heavy duty to show that the gender requirement is reasonably necessary for the employer’s particular business.

Exhibit 7.10  Breast-Feeding: A Gender-Plus Issue?

A federal judge in New York dismissed a gender discrimination and disability suit brought by Alicia Martinez, a cable television producer, alleging that after returning from maternity leave, her employer, MSNBC cable, failed to provide her with a “safe, secure, sanitary and private” place to pump breast milk during work breaks and harassed her for complaining. Martinez v. NBC, Inc. and MSNBC, 49 F. Supp. 2d 305 (S.D.N.Y. 1999).

Regarding the ADA claim, Judge Kaplan said it was “preposterous to contend a woman’s body is functioning abnormally because she is lactating.” As to the Title VII claim, the court said this was not “sex plus” discrimination because “to allow a claim based on sex-plus discrimination here would elevate breast milk pumping—alone—to a protected status,” and that could only be done by Congress. It was not plain gender discrimination under Title VII because “the drawing of distinctions among persons of one gender on the basis of criteria that are immaterial to the other, while in given cases perhaps deplorable, is not the sort of behavior covered by Title VII.”

Note that a similar argument was struck down by Congress in enacting The Pregnancy Discrimination Act, where the court determined it was not illegal gender discrimination to treat pregnant employees differently, since only females could become pregnant. Keep an eye on what happens with breast-feeding in the workplace. Some states (e.g., California) have already enacted laws providing protection for nursing mothers and others are considering legislation. Even in the absence of legislation, many employers are taking this issue quite seriously and creating policies to address lactation.

GENDER ISSUES

As we have seen, many issues are included under the umbrella of illegal gender discrimination. Following are some that are most prevalent. Keep in mind that many things we take for granted and dismiss as “that’s just the way things are” may be illegal in the workplace. That is what Justice Marshall alluded to in his dissent in the Phillips case, which has been fully accepted by subsequent courts. It is extremely important to keep this in mind as managers make workplace decisions and to guard against letting such thoughts be the basis of illegal Title VII decisions that result in employer liability.

Gender Stereotyping

Much discrimination on the basis of gender is in some way based on gender stereotypes. That is, workplace decisions are based on ideas of how a particular gender should act or dress, or what roles they should perform or jobs they should hold. An employer may terminate a female employee who is too “abrasive,” or not hire a female for a job as a welder because it is “men’s work.” Stereotypes generally have little or nothing to do with an individual employee’s qualifications or ability to perform. Workplace decisions based on stereotypes are prohibited by Title VII. (See Exhibits 7.5 , “Discrimination: Bad for Business and Employees”; 7.11, “Stereotyped Humor”; and 7.12, “Stereotypes.”)

As Price Waterhouse v. Hopkins demonstrates, stereotyping frequently leads to actions that form the basis of unnecessary liability for the employer. It is senseless for employers to allow managers and supervisors who hold such views to cause liability that costs the entire company unnecessary loss of revenue. Gender stereotyping began as stereotyping about females, but recent cases also have used the Price Waterhouse case to prohibit gender stereotyping of males, particularly as it relates to effeminacy.

Grooming Codes

The issue of gender stereotypes may be closely linked to that of grooming codes since the issue often arises in a gender context (e.g., men being prohibited from wearing earrings at work or women being required to wear makeup). Courts recognize that employers need to be able to control this aspect of the workplace, and a good deal of flexibility is permitted. As Harper v. Blockbuster Entertainment Corporation (included in the end) demonstrates, Title VII does not prohibit an employer from using gender as a basis for reasonable grooming codes.

Note, however, that we here address grooming codes only in the context of gender discrimination. The more recent workplace issues of, for example, applicants or employees with numerous body piercings, tattoos, and the like is generally not a gender issue but, rather, one of pure dress code–based appropriate business attire. Again, employers are given a good deal of leeway in setting workplace dress codes. The codes can be pretty much whatever the employer wants, unless a policy violates law such as being illegally discriminatory on the basis of gender. In making this determination, employers can use reasonable standards of what is generally thought to be male- or female-appropriate attire in a business setting. That is why in the Blockbuster case it is permissible under Title VII for an employer to prohibit males from wearing earrings, for instance, even though females are permitted to wear them.

Courts also have upheld grooming codes that required, among other things, male supermarket clerks to wear ties, female employees to not wear pants, a female attorney to “tone down” her “flashy” attire, and male and female flight attendants to keep their weight down. Not permitted were a weight restriction policy applied only to the exclusively female category of flight attendants, but not the category of male directors of passenger service, when both were in-flight employees. Also not permitted was requiring male employees to wear “normal business attire” and women to wear uniforms, though both performed the same duties. The court found “there is a natural tendency to assume that the uniformed women have a lesser professional status than their male colleagues attired in normal business clothes. This is the basis for opening scenario 1, and the reason the female clerk made to wear the smock would have a viable claim for gender discrimination. The wearing of the smock (picture the loose-fitting coverall-type button-down overdress that hairdressers often wear) may seem like a small thing to you, and you might say to yourself, “What’s the big deal? Why would anybody complain about such a little thing?” Think back to the wires of the cage. It is not the smock itself that presents the problem. Rather, as the court said above, it is how that smock positions the employee to be perceived in the workplace. That perception is a large part of what happens in that employee’s worklife, affecting whether that employee receives promotions, training, raises, and so on. When you think of business attire (keep in mind that the males with the same jobs were required to wear the “normal business attire” of coats and ties), a smock does not generally come to mind. If both genders were performing the same job, a female wearing a smock would not qualify as comparable to a male wearing a coat and tie. If you think she would, just turn the facts around and require the males to wear the blousy-looking smock and the females to wear “normal business attire.” Not the same picture, is it? And when you think of who should get a promotion, the employee in the smock probably doesn’t come to mind. Like the wires, each requirement, in and of itself, may not make a big difference, but taken together, the policies create a picture that is likely to keep the female employee on the low end of the workplace ladder and be more likely to lead to unnecessary litigation.

As a managerial exercise for yourself, try to think of why the employer would have required the smock. Why not require it for all employees if they really are all the same? What is the difference between males wearing them and females wearing them? Once you come up with a reason, ask yourself if it makes sense. Chances are, it doesn’t. For instance, if the smock was required to keep the employees’ clothes clean, then why not protect the clothing of males also?

Being able to see and really understand the smock case goes a long way toward being able to truly grasp the big picture of how gender discrimination works and how you can think about avoiding liability for it in the workplace when faced with your own situations as a manager.

A gender-based grooming policy that subjects one gender to different conditions of employment also would not be allowed, for instance, where the scant uniform the female lobby attendant was required to wear made her the object of lewd comments and sexual propositions from male entrants, or where a manager required female employees to wear skirts when the “head honcho” visited because he “liked to look at legs.” It is not a defense for an employer to argue that the employee knew about the grooming code when he or she came into the workplace. If the code is illegal, it is illegal, period. Agreeing to it makes it no less so, particularly given the unequal bargaining positions of the employer and job applicant/employee.

An interesting case arose when Harrah’s Casino in Reno, Nevada, instituted a new dress code that required female employees to wear makeup. The “Personal Best” program “specified the makeup as foundation or powder, blush, lipstick and mascara, applied precisely the same way every day to match a photograph held by the supervisor.” The only requirement for men was that they not wear makeup of any kind and keep their hair and nails trimmed. Darlene Jespersen, a bartender who had been employed by the casino for 21 years and had an excellent work history, was “highly offended she had to doll herself up to look like a hooker.” She was terminated for failing to comply with the policy. Jespersen argued that the cosmetics cost hundreds of dollars per year and took a good deal of time to apply and therefore created an unequal burden on female employees. In 2004, the Ninth Circuit Court of Appeals upheld the policy, saying “there is no evidence in the record in support of [Jespersen’s] contention that cosmetics can cost hundreds of dollars per year and that applying them requires a significant investment of time.”

Can you reconcile the court’s position with that of the U.S. Supreme Court in the Price Waterhouse decision, which held that gender stereotyping violated Title VII? Remember that the Court found gender discrimination when, among other things, Hopkins was told she must “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry.” The Ninth Circuit said its decision did not run afoul of Price Waterhouse because Price Waterhouse did not address the specific question of whether an employer can impose sex-differentiated appearance and grooming standards on its male and female employees (presumably because the more direct issue before the Court was Hopkins’s assertive/aggressive behavior, which her employers used as a large part of their rejection of her as a partner).

The full Ninth Circuit reheard the case again en banc (i.e., with all the judges present, not just a three-judge panel) in Jespersen v. Harrah’s Operating Co. in 2005 and issued its decision in 2006. What do you think the court decided? If you’re scratching your head after reading the case given in the end, you are not alone. The decision caused a great deal of controversy.

Customer or Employee Preferences

Frequently an employer uses gender as a basis for assigning work because of the preference of customers, clients, or other employees. Often the work to which one gender is not privy presents a loss of valuable revenue or a professionally beneficial opportunity for that employee. Such considerations may be formidable in client-driven businesses such as law, brokerages, accounting, sales, and other professions. If a customer does not wish to have a female audit his or her books, can her accounting firm legally refuse to let her service the client? Is an employer in violation of Title VII if the employer does not permit an employee of a certain gender to deal with a customer because the customer does not wish to deal with someone of that gender and the employee is thereby denied valuable work experience or earning potential? What if male employees on a construction site don’t want a female to work with them?

The answer is yes, the employer is in violation of Title VII and can be held liable to the employee for gender discrimination. Customer preference is not a legitimate and protected reason to treat otherwise-qualified employees differently based on gender.

Hooters is an Atlanta-based restaurant chain known for its buffalo wings and scantily clad (very short shorts and T-shirts tied around the middle, revealing a bare midriff), generally well-endowed, female servers. It came to light that Hooters refuses to hire males as servers. The conventional wisdom is that despite Hooters’ claims that it is a family restaurant and “Hooters” refers to its owl logo, “Hooters” is a not-so-subtle reference to female breasts, and the servers are as, or more, important than the food it serves. This is further supported by the servers’ outfits, the fact that Hooters is known for its “Hooters’ Girls,” complete with pin-up calendars and a 10-page Playboy magazine spread, and its “more than a mouthful” logo, which few believe refers to chicken wings or owls.

Hooters alleges that customers want only female servers. In 1996, Hooters launched a “no to male servers” billboard campaign featuring husky male servers clad in the Hooters’ attire. Today, Hooters’ serving staff is still female, despite the lawsuits brought by EEOC and class action suits by males in Chicago and Maryland. Hooters has chosen to settle cases rather than litigate them, which, of course, it has the right to do as long as it is willing to foot the bill.

The Hooters situation is the basis for opening scenario 2. Not a semester goes by that one of our students doesn’t ask how Hooters can “get away with” hiring only female servers. The short answer is, it can’t. At least not legally, in its present incarnation. Hooters has the right to use gender as a BFOQ to protect its female-only server policy if it can show that the gender of its servers is a bona fide occupational qualification reasonably necessary to the particular job done by the servers. For instance, the bfoq would be defensible if Hooters declared itself to be in the business of entertainment by use of its servers—rather like Playboy Club bunnies. It has chosen, instead, to classify itself otherwise. This means either gender can serve its food and its female-only server policy violates Title VII’s prohibition against gender discrimination. The way Hooters “gets away with” hiring only female servers is to settle lawsuits brought by males challenging its exclusionary policy. Obviously, (1) Hooters does not want to classify itself as adult entertainment and allow the BFOQ defense and (2) Hooters has concluded that it is worth more to them to keep its female-only server policy and settle claims by male applicants than to change its policy. Again, that approach is something it has every right to take as long as it is willing to foot the bill for that choice. To see the fine line Hooters walks in trying to characterize itself to avoid liability, visit their Web site and read the “about Hooters” section.

This issue of customer preference may cause special problems now that The Civil Rights Act of 1991 applies Title VII to U.S. citizens employed by American-owned or controlled companies doing business outside the United States. An employer in a country whose mores may not permit women to deal with men professionally must still comply with Title VII unless doing so would cause the company to actually violate the law of the country in which the business is located.

Logistical Considerations

In some workplaces, males and females working together can present logistical challenges; for instance, female sports reporters going into male athletes’ locker rooms, female firefighters sleeping at a fire station, or lack of bathrooms at a construction site. This issue arose in the context of construction workers in the Lynch v. Freeman case, which is included in the conclusion, when a female employee was told to use the same portable toilet as males. The court determined that the unclean (to put it mildly) toilets presented different challenges to males and females, resulting in gender discrimination. Note how the employer can take little for granted in making workplace decisions, as even the seemingly smallest decisions can be the basis of a time-consuming and expensive lawsuit.

A growing logistical concern in recent years has been the matter of female employees breast-feeding or expressing their milk at work. While the benefits of breast-feeding are clear as providing the best means of giving infants, among other things, natural immunities and nutrients, women who needed to, or chose to, return to work before their babies were weaned from the breast had little means of continuing to provide them with the benefits of their milk when they were not available to feed them. It was even illegal in many states to breast-feed in public. In 2006, a national “nurse-in” was held to protest the treatment of Emily Gillette of Santa Fe, New Mexico. Gillette was sitting aboard a Freedom Airlines (a regional airline for Delta) plane that was three hours late in taking off, when she began to breast-feed her daughter. A flight attendant who told Gillette that Gillette was offending her had Gillette removed from the plane when Gillette refused to cover herself with a blanket. Now, at least 39 states have passed lactation laws that make it permissible for women to breastfeed in public places without being cited for public indecency (see Exhibit 7.10 , “Breast-Feeding: A Gender-Plus Issue?”), federal legislation was reintroduced by U.S. Rep. Carolyn Maloney in May 2007 to amend the Civil Rights Act of 1964 to protect breast-feeding and provide tax incentives to businesses that establish lactation areas (Breastfeeding Promotion Act), and a growing number of employers have provided lactation rooms for employees to be able to express milk at work and a means to keep it cool while until they can take it home.

Initially women were consigned to workplace bathrooms when they needed to express milk and had no or inadequate refrigeration facilities to store the milk they cooled and bottled for their breastfeeding babies. Of course, the idea of expressing their milk in a public restroom was less than ideal. With lactation rooms and refrigeration facilities, female employees are able to have privacy and a safe, private place to take care of this issue. A popular route recently is for the employer to draw up a lactation agreement setting forth the parameters of the workplace lactation provisions, and the responsibilities of both the employer and the employee, and have the employee understand and sign it.

Employers may not forgo hiring those of a certain gender because of logistical issues unless it involves an unreasonable financial burden—usually a matter difficult for an employer to prove. These challenges must be resolved in a way that does not discriminate against the employee based on gender. Generally it is not exceedingly difficult, although it may take thinking about the workplace in a different way. In one situation, the employer said he could not hire females because there was only one restroom on the premises. However, if there is no state sanitation or building code prohibiting it, there is no requirement that males and females use separate restrooms as long as privacy is maintained.

Equal Pay and Comparable Worth

(1) No employer . . . shall discriminate between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. . . . [Equal Pay Act, 29 U.S.C.A § 206(d).]

Despite the statute quoted above, according to wage data, women earn on average 77 cents for every dollar earned by men. This is up from 60 cents in 1979. Younger women make 80 cents for every dollar a man makes in the same age group. At the rate the gender wage gap is closing, widely cited AFL-CIO research shows that women’s salaries will not be equal until the year 2050. A 2003 General Accounting Office report found that the gender wage gap is not because of less education or experience or because women get on a “mommy track” or choose low-paying professions. Instead, they concluded that discrimination is the biggest factor in the wage gap between genders. While Title VII prohibits discrimination in employment including in the area of compensation, even before Title VII there was legislation protecting employees against discrimination in compensation solely on the basis of gender. The year before Title VII was passed, the Equal Pay Act (EPA), actually part of the Fair Labor Standards Act (flsa) governing wages and hours in the workplace, became law.

Under the act, employers subject to the minimum wage provisions of the FLSA may not use gender as a basis for paying lower wages to an employee for equal work “on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” There are exceptions. Differences in wages are permitted if based on seniority or merit systems, on systems that measure earnings by quantity or quality of production, or on a differential based on “any other factor other than [gender].”

To comply with the Equal Pay Act, the employer may not reduce the wage rate of the higher-paid employees. According to Bureau of Labor Statistics figures, the pay gap that was supposed to be closed by the legislation actually widened at least nine times from one year to the next since passage of the EPA.

The EPA overlaps with Title VII’s general prohibition against discrimination in employment on the basis of gender. Title VII’s Bennett Amendment was passed so that the exceptions permitted by the EPA also would be recognized by Title VII.

The EPA also has a longer statute of limitations (two years from the time of the alleged violation, which may be raised to three years for willful violations, rather than 180 days under Title VII). Perhaps due to the fact that Title VII was passed very soon after the EPA, and more generally proscribed discrimination in employment, there has been less activity under the EPA than under Title VII. However, the prohibitions on pay discrimination should be considered no less important. (See Exhibit 7.13 , “Equal Pay: Hardly a Dead Issue.”) In the Pollis v. The New School for Social Research case, included for your review, a professor wins when she sues for making less than her similarly situated male colleagues.

Under the EPA, it is the content of the job, not the job title or description, that controls the comparison of whether the jobs are substantially the same. For instance, if a hospital’s male “orderlies” and female “aides” perform substantially the same job, they should receive the same pay, despite the difference in job titles.

In County of Washington v. Gunther, the Court held that Title VII’s Bennett Amendment only incorporated the four EPA exceptions into Title VII, not the “substantially equal” requirement; therefore, the jobs compared in a Title VII unequal pay action need not be substantially equal. Thus, under Title VII, employees have attempted to bring comparable worth cases in which higher-paid predominantly male jobs with similar value to the employer are compared in order to challenge lower wage rates for jobs held mostly by women. Federal courts, however, have generally rejected Title VII claims based on comparable worth. Take a look at the historic AFSCME v. State of Washington case, mentioned in the end, to see some of the considerations involved. AFSCME was the first significant statewide case to challenge gender-based pay differences on the basis of the comparable worth theory.

Prompted by the flap over pay disparities in women’s soccer in January 2000, there was a flurry of activity surrounding the issue of gender-based wage differences in the American workplace. Twenty members of the U.S. Women’s Soccer Team refused to play in an Australian tournament and demanded pay equal to that of the U.S. Men’s Soccer Team. The women were scheduled to be paid $3,150 per month for the most experienced player and about $250 per game. Men were to receive $5,000 per month and an additional $2,000 for the 18 players going to Australia. In the wake of the incident, at least two pieces of legislation were introduced into Congress (the Fair Pay Act and the stronger Paycheck Fairness Act) to amend the Fair Labor Standards Act to address the issue of gender-based wage disparities. In February 2000, President Clinton, accompanied by women’s soccer player Michelle Akers, announced that he was seeking an Equal Pay Initiative of $27 million to close the gap between men’s and women’s pay, of which $10 million would be allocated to EEOC to deal with the issue of gender-based wage violations. However, nothing much came of the flurry of activity and the laws have not yet been enacted by Congress.

The Paycheck Fairness Act would amend the Equal Pay Act to allow, in addition to the compensatory damages now permitted by the law, punitive damages for wage discrimination; prohibit employers from retaliating against employees for disseminating wage information to other employees; create training programs to help women strengthen their negotiation skills; enforce equal pay laws for federal contractors; and require the Department of Labor to work with employers to eliminate pay disparities. The Fair Pay Act seeks to end wage discrimination in female- or minority-dominated jobs by ensuring equal pay for equivalent work. This proposed law is aimed at female and minority-dominated employees and would establish equal pay for equivalent work. Employees would be protected on the basis of race and national origin. Wage differentials would be permitted based on seniority, merit, or quantity or quality of work and there would be exemptions for small business. The proposed law would not allow employers to pay predominantly female jobs less than predominantly male jobs if they are equivalent in value to the employer.

However, in May 2007, the U.S. Supreme Court issued its decision in the case of Ledbetter v. Goodyear Tire and Rubber Co., Inc. The case seems to have reignited the issue of women and wages in a serious way. Both pieces of legislation have been reintroduced, and Congress is working on a law to reverse the Supreme Court’s Ledbetter decision. In the case, a woman who had been the victim of illegal pay discrimination over a long period of time and who did not discover it until nearly her retirement, sued the employer for gender discrimination. The issue came down to whether the 180-day statute of limitations in the Civil Rights Act began to run 180 days after the initial act of discrimination, in which case the employee was foreclosed from bringing her cause of action, or whether it ran anew each time she was given a lower paycheck based on the discriminatory pay. The Supreme Court held that she could not sue because the statute of limitations was 180 days after the original act. The decision was roundly criticized by employees and lauded by business. Congress immediately took issue with the Court’s decision and introduced the Lilly Ledbetter Fair Pay Act (H.R. 2831, 110th Congress, 1st session (June 22, 2007)) to amend Title VII to allow the statute of limitations to start each time a paycheck is issued based on the discriminatory pay. This case, in which Justice Ruth Bader Ginsburg took the unusual step of reading her spirited dissent from the bench, also reignited the two other laws above and they are receiving much attention in Congress once again.

Under existing law, employers should be aware of any pay differentials between specific males and females, as well as between jobs that are held primarily by males and those held primarily by females. Employers should perform periodic audits to ensure that they are not operating under gender-based pay differentials, which may lead to preventable wage discrimination litigation against the employer.

Exhibit 7.11  Stereotyped Humor

“Hey, didja hear the one about the blond bimbo?” Well, you won’t hear it here. Whether or not jokes playing on stereotypes of women make you laugh, they might affect your judgments of women. About 100 male and female college students who heard sex-stereotyped jokes before watching female lecturers later rated the women in a more stereotyped fashion than did students who heard nonsexist jokes. “This study suggests we should be on guard about [stereotyped humor],” says co-author Christine Weston, Boston University.

Source: USA Today, August 24, 1993, p. D-1.

Exhibit 7.12  Stereotypes

Do any of the stereotypes below, taken from actual cases, sound familiar? Note that they are not limited to gender.

• “Older employees have problems adapting to changes and to new policies.”

• One had to be wary around “articulate black men.”

• Would not consider “some woman” for the position, questioned plaintiff about future pregnancy plans, and asked whether her husband would object to her “running around the country with men.”

• Female employee who spent time talking to other black employees was becoming “the black matriarch” within the company.

• A lesser job position was sufficient for women and no woman would be named to the higher position.

• If it were his company, he would not hire any black people.

• He was “not going to hire a black leasing agent.”

Exhibit 7.13  Equal Pay: Hardly a Dead Issue

A national study undertaken by the AFL-CIO and the Institute for Women’s Policy Research reveals very interesting insights into the issue of pay equality among American workers. Almost two-thirds of all working women responded to the survey. When looking at the findings and thinking about the issue of wage equality, keep in mind that the women responding provided half or more of their families’ incomes.

• Ninety-four percent of working women described equal pay as “very important”; two of every five cited pay as the biggest problem women face at work.

• Working families lose $200 billion of income annually to the wage gap—an average yearly loss of more than $4,000 for each working woman’s family because of unequal pay, even after accounting for differences in education, age, location, and the number of hours worked.

• If married women were paid the same as comparable men, their family income would rise by nearly 6 percent, and their families’ poverty rates would fall from 2.1 percent to 0.8 percent.

• If single working mothers earned as much as comparable men, their family incomes would increase by nearly 17 percent, and their poverty rates would be cut in half, from 25.3 percent to 12.6 percent.

• If single women earned as much as comparable men, their incomes would rise by 13.4 percent and their poverty rates would be reduced from 6.3 percent to 1 percent.

• Working families in Ohio, Michigan, Vermont, Indiana, Illinois, Montana, Wisconsin, and Alabama pay the heaviest price for unequal pay to working women, losing an average of roughly $5,000 in family income each year.

• Family income losses due to unequal pay for women range from $326 million in Alaska to $21.8 billion in California.

• Women who work full time are paid the least, compared with men, in Indiana, Louisiana, Michigan, Montana, North Dakota, Wisconsin, and Wyoming, where women earn less than 70 percent of men’s weekly earnings.

• Women of color fare especially poorly in Louisiana, Montana, Nebraska, Oregon, Rhode Island, Utah, Wisconsin, and Wyoming, earning less than 60 percent of what men earn.

• Even where women fare best compared with men—in Arizona, California, Florida, Hawaii, Massachusetts, New York, and Rhode Island— women earn little more than 80 percent as much as men.

• Women earn the most in comparison to men— 97 percent—in Washington, DC, but the primary reason women appear to fare so well is the very low wages of minority men.

• For women of color, the gender pay gap is smallest in Washington, DC; Hawaii; Florida; New York; and Tennessee, where they earn more than 70 percent of what men overall in those states earn.

• The 25.6 million women who work in predominantly female jobs lose an average of $3,446 each per year; the 4 million men who work in predominantly female occupations lose an average of $6,259 each per year.

Sources: “Equal Pay for Working Families: National and State Data on the Pay Gap and Its Costs,” http://www .aflcio.org/issues/jobseconomy/women/equalpay/ EqualPayForWorkingFamilies.cfm.

WOMEN'S RIGHTS

Title VII permits gender to be used as a bona fide occupational qualification (BFOQ) under certain limited circumstances. Under EEOC Guidelines, a BFOQ may be used when there is a legitimate need for authenticity such as for the part of a female in a theater or film production. More often than not, when employers have attempted to use BFOQ as a defense to gender discrimination, courts have found the defense inapplicable. This makes sense when you consider that in EEOC’s view, the guideline for determining the appropriateness of a BFOQ is that it would be necessary for a male acting as a sperm donor or a female acting as a wet nurse (a woman who nurses someone else’s baby from her own breast). That is a pretty strict guideline and provides insight into how irrelevant EEOC considers the matter of gender in the workplace to be.

The EEOC v. Audrey Sedita, d/b/a Women’s Workout World case, at the conclusion of the article demonstrates, however, that it is not always females who are kept out of the workplace because of gender. Men also are protected by the law, though because of our history with gender in this country, they do not have to call upon the law for assistance nearly as much as women.

PREGNANCY DISCRIMINATION ACT

The Pregnancy Discrimination Act (PDA) prohibits an employer from using pregnancy, childbirth, or related medical conditions as the basis for treating an employee differently than any other employee with a short-term disability if that employee can perform the job. This is why in opening scenario 3, it is illegal for the employer to evaluate the pregnant employee differently than it would any other. Employers illegally treat employees differently in many ways. For instance, the employer

• Refuses to hire pregnant applicants.

• Terminates an employee on discovering the employee’s pregnancy.

• Does not provide benefits to pregnant employees on an equal basis with short-term disabilities of other employees.

• Refuses to allow a pregnant employee to continue to work even though the employee wishes to do so and is physically able to do so.

• Does not provide the employee with lighter duty if needed, when such accommodations are made for employees with other short-term disabilities.

• Eliminates the pregnant employee by moving her to a new job title with the same pay, then eliminates the position in a job restructuring or a reduction in force.

• Evaluates the employee as not having performed as well or as much as other employees when the basis for the evaluation is the employer’s own refusal or hesitation to assign equal work to the employee because the employee is pregnant and the employer feels the need to “lighten” the employee’s load, though the employee has not requested it.

• Does not permit the pregnant employee to be a part of the normal circle of office culture so she becomes less aware of matters of importance to the office or current projects, resulting in more likelihood that the employee will not be able effectively to compete with those still within the circle.

The Supreme Court determined in General Electric Co. v. Gilbert that discrimination on the basis of pregnancy was not gender discrimination under Title VII. Two years later, Congress passed the PDA, amending Title VII’s definitions to include discrimination on the basis of pregnancy. Despite the fact that women comprise nearly 50 percent of the workforce, and statistics show that about 75 percent of those of childbearing age will have children sometime during their work life, pregnancy discrimination is still a serious workplace concern.

Many employers have maternity leave policies to address this more-than-likely event, but others, particularly smaller employers, do not. Based on traditional notions about the inappropriateness of women in the workplace in general, or pregnant women in particular, some employers are actually hostile to pregnant employees and run the very real risk of being sued for pregnancy discrimination.

It didn’t bother me at all that she was pregnant. But whether or not she was going to be able to spend the time to actually perform the job and to be a mom and do all that, yeah, we factored it in, sure. We were concerned.

This statement by Robert DiFazio, head of Smith Barney’s equities division regarding why someone other than the pregnant applicant was promoted to head the over-the-counter sales desk, is typical of many employers’ views about pregnant employees. The employee here filed a claim and the arbitration panel said, “it is hard to imagine sentiments more universally regarded as symbolic of illegal gender bias” and ruled the remarks constituted evidence of gender discrimination. A study in the Journal of Personality and Social Psychology found that while “business women” were rated similar in competence to “business men” or “millionaires,” women who became mothers were rated as similar in competence to the “elderly,” “blind,” “retarded,” or “disabled.” That’s pretty startling.

EEOC recently reported that there has been at least a 182 percent increase in the filing of pregnancy discrimination charges over the past 10 years. While EEOC says the most common scenario in pregnancy discrimination claims is termination of the pregnant employee (like the car dealer who fired the employee for fear she’d have morning sickness and throw up in the vehicles), employers take all kinds of measures. Wal-Mart rejected pregnant job applicants, thousands of female Verizon Wireless employees lost benefits during maternity leave, Delta Airlines fired one pregnant ramp attendant and forced another to take unpaid leave, a producer on Spelling Entertainment’s Melrose Place fired pregnant actress Hunter Tylo on the grounds that she was “unable to play the role of a seductress,” a Dallas attorney at the law firm of Jenkins & Gilchrist claimed she was constructively discharged due to her pregnancy, and a New York City police commander claims she was passed over because of her pregnancies, as does the first woman promoted within the Annapolis Fire Department and the education reporter for television station WLOX in Biloxi. In the Asmo v. Keane, Inc. case, provided for your review, the court concluded there was pregnancy discrimination when the employee’s supervisor said nothing when she told him she was pregnant with twins, and then terminated her two months later.

If the employee is temporarily unable to perform the duties of the job because of pregnancy, then the law requires that the inability to perform be the issue, not the fact that the employee is pregnant. The employee therefore should be treated just as any other employee who is temporarily unable to perform job requirements. Whatever arrangements the employer generally makes in such circumstances must be extended to the pregnant employee. Note, however, that EEOC has ruled that an employer’s adherence to a facially neutral sick leave policy and its consequent refusal to provide pregnant employees with a reasonable leave of absence, in the absence of a showing of business necessity, discriminates on the basis of gender because of its disproportionate impact on women. Pregnancy can, of course, be used as a BFOQ.

As a manager, you should be aware of the ingrained ideas people hold about pregnancy and work and be sure to ward off any trouble. According to a recent Jury Verdict Research study, if job applicants or employees with pregnancy discrimination claims go to jury trial, they win 54 percent of the time. On the other hand, while the study shows that pregnancy discrimination claimants are more likely than other kinds of discrimination claimants to recover from a jury, the amount they recover is substantially less. The median jury award in a pregnancy discrimination case was $56,360, while for others it was $146,468. But since the discrimination is avoidable, even a verdict of $56,360 is unnecessary.

Management Tips

As you have seen, gender discrimination can manifest itself in many forms, some of which may take the employer by surprise. Following these tips can help keep the surprises to a minimum.

• Let employees know from the beginning that gender bias in the workplace will not be tolerated in any way. Give them examples of unacceptable behavior.

• Back up the strong gender message with appropriate enforcement.

• Take employee claims of gender discrimination or bias seriously.

• Promptly and thoroughly investigate all complaints, keeping privacy issues in mind.

• Don’t go overboard in responding to offenses substantiated by investigation. Make sure the “punishment fits the crime.”

• Conduct periodic training to keep communication lines open and to act as an ongoing reminder of the employer’s antibias policy.

• Conduct periodic audits to make sure gender is not adversely affecting hiring, promotion, and raises.

• Review workplace policies to make sure there are no hidden policies or practices that could more adversely impact one gender than another.

• In dealing with gender issues, keep in mind that none of the actions need make the workplace stilted and formal. Employees can respect each other without discriminating against each other.