The Basics of a Sexual Discrimination Case

Sexual discrimination is rooted in the recognition and judgment of the inequalities of the sexes. The attitude comes from a primitive survival instinct that helped our ancestors weigh options and make decisions as well as recognize that they were part of a clan and encouraged them to strive for the betterment of the group. This deprived outlook and warped view of social position is out-of-place in today's integrated society but the primordial nature of humans to gravitate toward his/her own kind for comfort and the advancement of the tribe still loiters in the subconscious of our educated, enlightened, and sophisticated culture. Apparently, it is not so easy to liberate ourselves from the archaic and elemental shackles of perception, sentiment, and adjudication.

The U.S. Equal Employment Opportunity Commission (EEOC) receives between 23,000 and 26,000 charges of sex-based discrimination a year. Title VII of the Civil Rights Act protects the rights of individuals against discrimination in the workplace based on sex as well as race, color, national origin, and religion.

Title VII of the Civil Rights Act of 1964 applies to the following:

• The federal government
• State and local governments
• Employment agencies
• Labor organizations
• Employers with 15 or more employees

Sexual discrimination is illegal and it applies to any employee or applicant for employment with concerns to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or performance based on the individual's sex. Title VII also prohibits intentional discrimination and neutral job policies that disproportionately exclude individuals based on their sex.

Sexual Harassment

Sexual harassment is also covered under Title VII of the Civil Rights Act. Sexual harassment is a form of sex discrimination and a violation of the Act, which prohibits inappropriate sexual behavior in the workplace that may be conducive to improper sexual innuendoes, a hostile work environment, unwelcome sexual advances, direct requests for sexual favors, and/or other verbal or physical behavior of a sexual nature. This can apply to persons of either gender, including same sex harassment. Sexual harassment can lead to an intimidating, aggressive, and/or offensive work environment that can interfere with an individual's performance or ability to do his/her work.

Facts about Sexual Harassment:

• The victim as well as the harasser may be a woman or a man
• The victim does not have to be of the opposite sex
• The harasser can be the victim's superior, agent of the employer, supervisor in another area, co-worker, or non-employee or outside agent
• The victim does not have to be the person harassed but could be anyone offended by the behavior
• Sexual harassment can occur without discharge or economic ramification to the victim
• The harasser's conduct or advances must be unwelcome

The victim should inform the harasser directly that the behavior is inappropriate and unwelcomed and that the conduct must stop. The victim should file a complaint or grievance with the employer, supervisor, or department head immediately. The EEOC encourages employers to prevent sexual harassment in the workplace. Employers should have procedures in place to deal with complaints of sexual harassment and make it absolutely clear that sexual harassment will not be tolerated.

Pregnancy Discrimination

Discrimination based on pregnancy is another form of sexual discrimination. It is unlawful to discriminate against a person because of pregnancy, childbirth, and related medical conditions. According to the law, a woman who is pregnant or affected by a related condition must be treated the same way as any other applicant or employee with similar abilities or limitations.

The Pregnancy Discrimination Act outlines the following aspects with respects to pregnancy discrimination:

• Hiring – It is unlawful for an employer to refuse to hire a pregnant woman because of her pregnancy, a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.
• Work Designation - It is unlawful for an employer to single out pregnancy-related conditions for special procedures to determine an employee's ability to work.
• Health Insurance - Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions.
• Fringe Benefits - Pregnancy-related benefits must be available to unmarried employees as they are to married employees.
• Family Leave - It is unlawful for an employer to deny unpaid family leave (up to 12 weeks) to a new mother or father.

It is legal for an employer to require parent to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, if the employer requires all its employees affected by a medical condition to submit a doctor's statement.

If an employee is temporarily incapable of performing her job because of her pregnancy, the employer must treat her as any other temporarily disabled employee. That may include modifying certain tasks, assigning alternative work, or allowing her to take disability leave or leave without pay. A pregnant employee must be allowed to work as long as she is able to perform her job. If an employee has missed work because of a pregnancy-related condition and recovers, the employer cannot obligate her to remain on leave until birth. Employers must hold a job for a pregnancy-related absence the same way jobs are held for employees on sick or disability leave.

The Equal Pay Act

The Equal Pay Act of 1963 requires that men and women be given equal pay for equal work. The jobs do not have to be identical, but they must be substantially equal. Compensation discrimination based on the sex of an individual is also prohibited. Job content determines whether jobs are equal and not the job titles assigned to the individuals.

Federal laws employed by the EEOC to assure equal pay for equal work include:

• The Equal Pay Act of 1963,
• Title VII of the Civil Rights Act of 1964
• Age Discrimination in Employment Act of 1967
• Title I of the Americans with Disabilities Act of 1990

The Equal Pay Act dictates that employers cannot pay unequal wages to men and women who perform jobs that require equal skill, effort, and responsibility. Nor can employers pay unequal wages for jobs that are performed under similar working conditions within the same establishment.

These factors are summarized below:

• Skill - Measured by dynamics such as the experience, ability, education, and training required to perform the job. This refers to the skills required for the job and not to the particular skills of any individual employee.
• Effort - The amount of physical or mental application needed to perform the job.
• Responsibility - The extent of accountability needed to perform the job.
• Working Conditions - This includes two factors:
  • Physical Surroundings (temperature, fumes, ventilation)
  • Hazards
• Establishment - The prohibition against compensation discrimination applies only to jobs within a distinct physical place of business.

Differences in pay are permitted when they are based on seniority, merit, quantity production, quality of work, or a factor other than sex. These are recognized as "affirmative defenses" and it is the burden of the employer to prove that they apply. If an employer has to correct pay differentials, he/she must bring the lower paid employee's wages up to par with the higher paid employee.

It is unlawful for an employer to retaliate against an individual for challenging employment practices that discriminate based on the sex of the individual, filing a discrimination charge, testifying, or participating with any investigation, proceeding, or litigation under Title VII.

Most of us would like to think that our civilization tears off these barbaric and misconstrued assessments of variation, originality, and individuality as it drags itself across the sands of time, but the reality is that we are closer to our subspecies than the enlightened spirit of nirvana.